In other articles we’ve explored the various aspects of the typical forms of physical assault that tend to come up for criminal lawyers on a regular basis.

A common theme in many areas of assault is the concept of “consent”.

But why is that? Can you seriously consent to being assaulted by another person?

Yes. Sort of. Sometimes.

Consent and Assault

The best place to start is to revisit our definition of assault from the Criminal Code. We’ve shortened it a bit in the middle section and highlighted the relevant text in bold:

A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud … is said to assault that other person, and the act is called an “assault”

As you can see, the idea of consent – or, more accurately, the lack of proper consent – is embedded immediately in the idea of what does or does not constitute an assault in the first place.

So “consent” is not strictly a defence to an assault charge, though practically speaking it might be used in that way. Really though, an application of force that is consented to just isn’t really assault in the first place.

And that makes sense – because as we’re about to see, without the idea of consent people would assault each other constantly every day.

If you Remove Consent, Assault is Everywhere

Did you know that “applies force” as it’s used in our section above has a really broad meaning?  It could include applying heat, light, electrical force, gas, odour or any other substance or thing.

With that in mind, what would happen if we ignored the idea of consent for a minute?

It would mean that when you turned the heater on the other day because it got a bit cold inside – that’s an application of force and potential assault.

So for that matter would be spraying yourself with deodorant as the family was getting ready this morning and accidentally getting a bit on your spouse who was brushing their teeth next to you. Ironically, if you’re prone to a bit of body odour, then NOT spraying yourself with deodorant might be an assault anyway – so it could be lose-lose in the personal smells department.

And we haven’t even gotten into contact sports yet. Football is basically just a continuous series of potential assaults, as is water polo, as for that matter is jostle of trying to get onto a train in peak hour.

So as you can see – if it was just left with its ultra broad definition then normal day-to-day life would render us all vulnerable to a series of low grade offences.

It would also be impractical. This is why the idea of consent exists, though as we’re about to see it does have some limits.

Express Consent – the Obvious Part

Let’s say you want to show off your 6-pack abs, and you ask your friend to give you a swift punch to the middle after giving you time to “tense up”.

That’s obviously assault – after all, they punched you right?

Except you asked them to. So you’ve consented.

And provided they did what you asked them to do, there’s no crime there.

Implied Consent – A little more tricky

Basically all of the slightly silly examples we provided above are examples of implied consent. They are situations that we expect and understand will occur based on our decision to live as members of society. We don’t formally announce our consent to these things – it’s just there.

If I’m at the park and get involved in a random game of footy on the weekend, I’m probably not going to sign a document saying “I consent to being tackled”.

I am, however, knowingly getting myself involved in a game that involves tackling people and being tackled.

And within reasonable boundaries, I have consented to the application of force that can generally be expected when participating in that kind of activity.

This can get a bit tricky though. What if a fight breaks out? What if a player on one team decides to hit me between plays?

These are things I have not necessarily consented to, but because my consent is “implied” there is going to be a question mark about exactly what I have consented to depending on the circumstances.

So while we might consent to X, it doesn’t necessarily mean that we have automatically consented to Y at the same time.

Things you Can’t Consent To

While you can consent to “simple” assault like we have described above, there are some limits.

Basically – you cannot consent to serious harm.

That means you cannot consent to unlawful wounding, you cannot consent to grievous bodily harm, and obviously you cannot consent to be killed.

This is essentially an understanding that day to day life involves a series of passive “assaults” that most people expect and tolerate. However, a person cannot consent beyond those limits and expectations that might be reasonable

Always Consider Consent

When dealing with any assault charge, we will always carefully consider whether the police are able to make out the elements of the charge itself.

One of those important considerations is whether there are any arguments about consent that might be raised in response.

If you need to discuss any specific circumstances of consent and assault, don’t hesitate to reach out and we’d be happy to help.