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R v Wilson [1996] 2 Cr. App. R. 241

Criminal –Consent – Consensual bodily harm between husband and wife

Facts:

Alan Wilson was charged under s 47 of the Offences Against the Person Act 1861 for assault. He branded his initials into his wife’s buttocks with a hot knife.

Issue:

The first issue was whether R v Brown (1993) 97 Cr. App. R. 44, is an authority for the proposition that consent is not a defence to assault occasioning actual bodily harm to a person, under s 47 of the Act. Further, when criminal investigation or conviction is required where consensual activity between a couple occurs in the privacy of their own home. Where consensual activity has taken place in the privacy of one’s home, and is has not serious or extreme in nature, a defence of consent is valid against s 47 of the Act and it is not a proper matter for criminal investigation.

Held:

The court distinguished the case of R v Brown holding that the engagement of the defendants in sadomasochism which led to the decision to convict the defendant under s 47 of the Act was extreme, with a serious risk of injury occurring. There was no factual comparison to be made between the actions of Wilson and the facts presented in R vBrown and there was no aggressive intent on the part of Wilson. It was further held that consensual activity between a husband and wife in the privacy of their own home was not a matter for criminal investigation or conviction. Therefore, consent was a valid defence to s 47. The appeal was allowed and the conviction was quashed.


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