Commission report clears up consent

ADULTS should “generally” be entitled to make their own choices on issues of consent and those who suffer no permanent injury and willingly agree to certain acts should not be subject to criminal proceedings, according to the Law Commission.

The commission, which last week released a consultation paper on the effect of consent in the criminal law, has reviewed the law in the context of issues such as surgery, dangerous sports, infliction of pain for sexual purposes, ritual circumcision and cosmetic piercing.

It suggests controls in aid of public morality, public decency and public order should be separated “distinctly” from basic laws governing sexual offences and offences against the person.

The paper contains a study of the possible effect of the European Convention on Human Rights and sets out the three main approaches to criminalisation today – liberalism, paternalism and legal moralism.

Chaired by Mr Justice Brooke, who retires from his post at the end of the year, the commission provisionally recommends a seven-point approach to consensual issues.

Among the points are plans for special rules for the young and mentally disabled, and rules to ensure that non-voluntary consents are treated as ineffective.

The State's legitimate concern to protect people from “seriously disabling injury” should also be recognised, the paper says, and a person's interest in the “healthy” functioning of his or her own body should also be understood.

“In this paper the commission asks some fundamental questions about the proper purpose of the criminal law,” said Brooke. “Ultimately these questions are for Parliament to answer. Our task is to straighten out the issues, and we hope that many people will hear about the paper and respond to the questions we have asked.”