Commentary on Sections Part 3: Chapter 1: Prevention Orders Chapter 2: Causing or risking serious harm Section 27: Consent to harm for sexual gratification is no defence
This section provides that, for the purposes of determining whether a person (‘D’), who inflicts "serious harm" on another person (‘V’) is guilty of a "relevant offence", it is not a defence that V consented to the infliction of the serious harm for the purposes of obtaining sexual gratification.
Subsection (2) makes clear that it does not matter whether the harm was inflicted for the purposes of obtaining sexual gratification for D, V or some other person.
Subsection (3) defines what is meant by "relevant offence" and "serious harm" by reference to sections 18 (causing grievous bodily harm with intent), 20 (inflicting grievous bodily harm) and 47 (actual bodily harm) of the Offences Against the Person Act 1861 ("the 1861 Act").
Subsection (4) provides for an exception in the case of an offence under section 20 or 47 of the 1861 Act where the serious harm consists of, or is a result of, the infection of V with a sexual transmitted infection in the course of sexual activity, and V consented to the sexual activity in the knowledge or belief that D had the sexually transmitted infection.
This subsection prevents D’s criminalisation in such cases, but preserves the position (as set out paragraph 58 of the judgment in R v Dica) that consent would provide no defence to a charge under section 18 of the 1861 Act.
Subsection (5) provides that nothing in this section affects any enactment or rule of law relating to other circumstances in which a person’s consent to the infliction of serious harm may, or may not, be a defence to a relevant offence.   Well recognised examples include instances of medical treatment; injuries sustained in certain sports; and tattooing.