Consent to actual bodily harm for sexual gratification (Domestic Abuse Act 2021, s.71)

Consent can sometimes prevent an application of force from being an unlawful assault, but not here. Section 71 of the Domestic Abuse Act 2021 applies to offences under ss.18, 20 and 47 of the Offences Against the Person Act 1861. It provides that it is not a defence that V consented to the infliction of serious harm for the purposes of obtaining sexual gratification. 'Serious harm' is defined to include actual bodily harm within the meaning of s.47, as well as wounding and grievous bodily harm. Under s.71(5) it does not matter whether the gratification was for D, V or someone else. The only exception, in s.71(4), concerns infection with a sexually transmitted infection where V consented knowing of it, which does not apply. The bruising and welts are actual bodily harm, so Sam's consent is no defence to the s.47 charge. The section reflects the common law position in R v Brown [1994] 1 AC 212.

Why A is wrong: Adult consent does not prevent liability where actual bodily harm or worse is inflicted for sexual gratification.

Why B is wrong: 'Serious harm' in s.71 expressly includes actual bodily harm within s.47.

Why D is wrong: Section 71 removes consent as a defence regardless of whether Elliot intended the harm.

Why E is wrong: Section 71(5) provides that it does not matter whose sexual gratification was sought.