A fraught legal issue bubbled up to the surface at the ABCA in Gardiner: should the common law continue to recognize the legal effectiveness of consent in the context of domestic assaults (which otherwise do not reach the Jobidon threshold, namely, of bodily harm, both intended and caused)? The majority, in allowing Mr. Gardiner’s appeal, largely ignored this “difficult policy” issue but expressed concern that “[i]f the consent was never recognized…both participants in a consensual domestic fight would be guilty of assault” (2). Madam Justice Bielby, dissenting in the result, opined that the domestic violence may be “another situation” where consent ought to be ineffective on policy grounds (30-31).
Read the full commentary: Marriage is not a rugby match
This is general information only and is not legal advice. For legal advice, consult family lawyers in Victoria.