Can you consent to being assaulted?

Where consent sits in the definition

Start with the statutory definition. Section 245 describes assault as striking, touching, moving or otherwise applying force of any kind to another person, directly or indirectly, without that person’s consent, or with their consent where the consent was obtained by fraud. It also covers a bodily act or gesture that attempts or threatens to apply force where the person has an actual or apparent present ability to carry it out.

So the absence of proper consent is built into the offence itself. A consented application of force is not an assault in the first place. In practice consent is often run as though it were a defence, but the analysis is really about whether an element of the offence exists.

Without consent, assault would be everywhere

The phrase "applies force" is broader than most people expect. It can include applying heat, light, electrical force, gas, odour or any other substance or thing.

Take consent out of the equation for a moment. Turning on a heater applies force. Spraying deodorant and catching your partner beside you at the basin applies force. Standing next to someone on a crowded train applies force. Every tackle in a game of football applies force, as does the jostling in a queue.

Left with the bare definition, ordinary life would be a continuous series of low grade offences. Consent is what makes the definition workable.

Express consent

Express consent is the straightforward case. If you ask a friend to punch you in the stomach so you can demonstrate how well you can brace, and they do exactly that, there is no offence. You asked for it, in the literal sense.

The qualification is that the consent covers what was actually agreed. If they do something materially different from what was asked, the consent may not extend to it.

Implied consent

The everyday examples above are all implied consent. Nobody announces it. It arises from choosing to take part in ordinary life or in a particular activity.

If you join a casual game of football at the park, you do not sign a document consenting to being tackled. You do knowingly enter an activity that involves tackling, and within reasonable boundaries you have consented to the force that can be expected in that activity.

The boundaries are where the arguments happen. A punch thrown between plays is not part of the game. Nor is a tackle so far outside the rules that it is no longer part of the contest. Consenting to X does not mean consenting to Y at the same time, and the scope of implied consent will always depend on the circumstances.

What you cannot consent to

You can consent to a simple application of force. You cannot consent to serious harm.

• You cannot consent to unlawful wounding.
• You cannot consent to grievous bodily harm.
• Consent to death is immaterial under section 284 of the Criminal Code, so a person who kills another with their consent is not excused by it.

The principle is that day to day life involves a level of passive contact that people expect and tolerate, and that consent operates within those expectations. Beyond them, the criminal law does not allow a person to authorise serious injury to themselves.

Why this matters in a charge

On any assault charge, the first question is whether the prosecution can make out every element. Consent is one of the elements that is regularly in issue, and it is frequently the element that is weakest in the police brief.

What was the activity, what did the complainant agree to, expressly or by taking part, and did what occurred fall inside or outside that? Those questions get answered from evidence: messages, footage, witnesses and the rules of whatever activity was on foot.

If consent is in issue in your matter, raise it with your solicitor early, because the material that proves it is usually time sensitive.