VAGUENESS, AUTONOMY, AND R V BROWN

VAGUENESS, AUTONOMY, AND R V BROWN

This article comments on the article in this volume entitled ‘Is Society Still Shackled with the Chains of a 1993 England?: Consent, Sado-masochism and R v Brown’ by Jordan Moulds. It argues that the defence of consent should not be circumscribed to the extent that it was in Brown for three reasons: the first is based on maintaining the coherence of the law; the second arises from the importance of valuing the liberty of individuals in cases where a statute is vague; and the third is found in the value of autonomy. This comment argues in Part I that the criminal law and tort law should set the same threshold at which consent will no longer afford a defence. Part II draws on the theories of Raz, Fuller and Marmor argues that the liberty of individuals should not be so easily sacrificed where the statute allegedly governing the impugned behaviour is vague; and Part III concludes that the common law position on consent in New Zealand serves as an example of an acceptable balance between the autonomy of the victim and the role that the criminal law has to play in reducing threats to peace and order. 

Arnold, David

University of South Australia Law Review; Vol. 1 (2015): UniSA Student Law Review

2206-1398

University of South Australia

2015-11-23

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