South Australian Current Acts

CRIMINAL LAW CONSOLIDATION ACT 1935 - SECT 22

22—Conduct falling outside the ambit of this Division

        (1)         This Division does not apply to the conduct of a person who causes harm to another if the victim lawfully consented to the act causing the harm.

        (2)         A lawful consent given on behalf of a person who is not of full age and capacity by a parent or guardian will be taken to be the consent of the person for whom the consent was given.

        (3)         A person may consent to harm (including serious harm) if the nature of the harm and the purpose for which it is inflicted fall within limits that are generally accepted in the community.

Examples—

1         A person may (within the limits referred to above) consent to harm that has a religious purpose (eg male circumcision but not female genital mutilation).

2         A person may (within the limits referred to above) consent to harm that has a genuine therapeutic purpose (eg a person with 2 healthy kidneys may consent to donate 1 for the purpose of transplantation to someone with kidney disease).

3         A person may (within the limits referred to above) consent to harm for the purpose of controlling fertility (eg a vasectomy or tubal ligation).

4         A participant in a sporting or recreational activity may (within the limits referred to above) consent to harm arising from a risk inherent in the nature of the activity (eg a boxer may accept the risk of being knocked unconscious in the course of a boxing match and, hence, consent to that harm if it in fact ensues).

        (4)         If a defendant's conduct lies within the limits of what would be generally accepted in the community as normal incidents of social interaction or community life, this Division does not apply to the conduct unless it is established that the defendant intended to cause harm.

        (5)         If the defendant's conduct caused only mental harm, this Division does not apply to the defendant's conduct unless—

            (a)         the defendant's conduct gave rise to a situation in which the victim's life or physical safety was endangered and the mental harm arose out of that situation; or

            (b)         the defendant's primary purpose was to cause such harm.

Examples—

1         An examiner fails a student in an examination knowing that the student has been diagnosed with schizophrenia and that failure to pass is likely to precipitate a schizophrenic episode. The student in fact suffers such an episode.

2         An employer legally terminates an employee's employment knowing that the employee suffers from a mental illness and that the termination is likely to exacerbate the mental illness. The employee in fact suffers an exacerbation of the mental illness.

In both the above examples, it is not sufficient for the prosecution to prove that the defendant acted intentionally knowing that harm would inevitably, probably or possibly result from his or her act. It would be necessary for the prosecution to establish that the defendant wanted to cause harm and that desire was the sole or a significant motivation for the defendant's conduct.