Consensual Assault

Prosecutions of assaults and other serious offences of violence are commonplace in the criminal courts. As a rule, such cases involve a non-consenting victim. However, occasionally, cases involving a consenting ‘victim’ also make it to court. These are cases where the parties involved have willingly exchanged blows or inflicted violence upon each other, for example, where two individuals resort to a fist fight to resolve a disagreement. Such cases pose difficulties for the criminal justice system and legal scholars alike since they lack the clear stamp of unlawfulness that the victim’s absence of consent otherwise provides. In the search for a principled distinction between lawful and unlawful consensual assault courts and legislatures have been obliged to balance public policy justifications for refusing to condone violence, regardless of consent, against competing claims of personal autonomy. This has proved no easy task.

The Issues Paper examines the current law on consensual assault in Tasmania which is contained in s 182(4) of the Criminal Code Act 1924 (Tas) sch 1 (the ‘Code’). It traces the history of this provision from its roots in the common law, and explains how successive common law authorities have informed the judicial interpretation of the provision. The paper contends that some aspects of s 182(4) lack clarity and do not reflect current concerns about when the law might appropriately negate consent to assault. It also expresses concern that the provision reflects an outmoded view of when consent should or should not operate as defence to assault and leaves those who are particularly vulnerable to violence in the home outside the protection of the law. The paper concludes by proposing five separate options for reform.