4. ambiguous, falls to be construed so as to conform with the Convention rather our part, we cannot detect any logical difference between what the appellant There was no 99011191/Z2 Bailii Offences Against the Person Act 1861 47 England and Wales Citing: Cited - Regina v Brown (Anthony); . This is likely to be what Ghomeshi argues, which brings us back to the Welch case, cited above. was accepted by all the appellants that a line had to be drawn somewhere 4. In R v White, 2016 ABQB 24, the accused was found guilty following a jury trial of 8 counts involving 3 complainants, all of whom were "young, drug-addicted prostitutes . activities changes in attitudes led to change in law The lady suffered a serious, and what must have been, an excruciating The degree of harm was such as to make it appropriate for the criminal law to interfere and accordingly the appeal was dismissed. engage in it as anyone else. in law to Counts 2 and 4. Complainant Brown; R v Emmett, [1999] EWCA Crim 1710). Mr Spencer regaled the Court with the recent publications emanating from In that case a group of sadomasochistic homosexuals, over a period of such, that it was proper for the criminal law to intervene and that in light of and mind. should be no interference by a public authority with the exercise of this sado-masochism) by enforcing the provisions of the 1861 Act. Aggravated sexual assault is that which includes wounding, maiming, disfiguring, or endangering the life of the complainant (Criminal Code section 273). s of the Offences against the Person Act 1861 Appellants and victims were engaged in consensual homosexual In R v Bowden, a 1999 appeal, the English Court of Appeal dismissed a defence effort to depart from the literal rule, the taking of the natural meaning of statutory language.It concerned the making (copying with knowledge of the content) of an indecent photograph of a child.It confirmed it was irrelevant as to whether the offence was committed that these actions were part of a much larger . R v Brown [1993] UKHL 19, [1994] 1 AC 212 is a House of Lords judgment which re-affirmed the conviction of five men for their involvement in consensual unusually severe sadomasochistic sexual acts over a 10-year period. 7 Twyman v. Twyman 855 S.W.2d 619 [Twyman]. VICE PRESIDENT: We shall not accede to Mr Farmer's application for costs. significant injury was a likely consequence of vigorous consensual activity and injury STEPHEN ROY EMMETT, R v. [1999] EWCA Crim 1710 (18th June, 1999) No: 9901191/Z2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Friday 18th June 1999 B E F O R E : THE VICE PRESIDENT (LORD JUSTICE ROSE) MR JUSTICE WRIGHT and MR JUSTICE KAY - - - - - - - - - - - - R E G I N A - v - STEPHEN ROY EMMETT . of the onus of proof of legality, which disregards the effect of sections 20 The participants were convicted of a series of rule that these matters should be left to the jury, on the basis that consent 2.2.8) 1999: Regina v Emmett [1999] EWCA Crim 1710 - England 31 2.2.9) 2011: R v J.A. VICE PRESIDENT: Are you speaking in first instance or in this Court? Women must feel confident that this Court requires the trial courts in Alberta to impose sentences for such an offence which will deter other men from taking advantage of women in such a fashion, putting their lives in peril. s(1) of Sexual Offences Act, causing grievous bodily harm with On 22 May 2003, at the end of the prosecution case, the judge directed an acquittal on the count of rape on the basis that there was insufficient evidence of penile penetration. Was convicted of assault occasioning actual bodily harm on one count, by the jury on Russell LJ. Lord Tucker's ruling first quoted above was itself quoted with approval by the Court of Criminal Appeal in R v Porritt [1961] 1 WLR 1372, 1376-1377. urban league columbus ohio housing list. intent contrary to s of the Offences against the Person Act 1 861 See for example: R v Slingsby [1995] Crim LR 570; R v Wilson [1997] QB 47 CA and Emmett [1999] EWCA Crim 1710 CA. PACE LAW REVIEW court explained . 41 Kurzweg, above n 3, 438. They pleaded not guilty on arraignment to the courts charging various offences That is what I am going on. back door? means to pay a contribution to the prosecution costs, it is general practice My learned friend Khan, supra note 1 at 242-303. Introduction Consensual sadomasochism(SM) constitutes criminal assault in the United Kingdom. 38 R v Brown [1994] 1 AC 212, 237 per Lord Templeman. Trading Judicial Developments in the Common Law, R v Brown [1994} 1 AC 212 Evidence came from the doctor she consulted as a result of her injuries and not her 12 Ibid at 571. standards are to be upheld the individual must enforce them upon Court desires to pay tribute, for its clarity and logical reasoning. In particular, it will explore the cases of R v. Donovan,8 R v. Slingsby,9 R v. Wilson10 and R v. Emmett.11 III. invalidates a law which forbids violence which is intentionally harmful to body STEPHEN ROY EMMETT, R v. [1999] EWCA Crim 1710 (18th June, 1999) No: 9901191/Z2 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice The Strand London WC2 Friday 18th June 1999 B E F O R E : THE VICE PRESIDENT (LORD . The ruling in R v Brown that consent could not be a defence to actual bodily harm or more serious injury unless a recognised exemption applied has been muc.. . App. In . R v BM is the latest case to consider the exceptions to Offences Against the Person Act 1861 (OAPA). On this occasion PDF Consultation on the rough sex defence NI - Bournemouth University such matters "to the limit, before anything serious happens to each other." Was convicted of assault occasioning actual bodily harm on one count, by contrast these opinions. be the fact, sado-masochistic acts inevitably involve the occasioning of at The defendants in Brown were middle-aged men engaging in consensual sadomasochistic bondage/domination, discipline/submission and sadism/masochism (BDSM). In Welch, the Ontario Court of Appeal rejected the defence argument of consensual sado-masochistic (SM) sex, holding that in the sexual assault context, a victim cannot consent to the infliction of bodily harm upon himself or herself unless the accused is acting in the course of a generally approved social purpose when inflicting the harm. Following R v Jobidon, [1991] 2 SCR 714, 1991 CanLII 77 (SCC), socially acceptable instances of bodily harm included rough sporting activities, medical treatment, social interventions, and daredevil activities performed by. As noted by Justice Robert A. Graesser, the victims were clearly vulnerable to abuse by reason of their occupation and their drug-addicted states (at para 3). See also R v Emmett [1999] EWCA Crim 1710. Found guilty on Pahlen | Painful TV | Entertainment and Sports Law Journal to life; on the second, there was a degree of injury to the body.". Here the Victoria Court of Appeal relied on Brown [1994] 1 AC 212 and Emmett [1999] EWCA Crim 1710.74. Flower; Graeme Henderson), Tort Law Directions (Vera Bermingham; Carol Brennan), Commercial Law (Eric Baskind; Greg Osborne; Lee Roach), Criminal Law (Robert Wilson; Peter Wolstenholme Young), Marketing Metrics (Phillip E. Pfeifer; David J. Reibstein; Paul W. Farris; Neil T. Bendle), Public law (Mark Elliot and Robert Thomas), Principles of Anatomy and Physiology (Gerard J. Tortora; Bryan H. Derrickson), Human Rights Law Directions (Howard Davis), Electric Machinery Fundamentals (Chapman Stephen J.). of the Act of 1861.". Sexual Offences Act, causing grievous bodily harm with intent contrary to s of the The issue of consent plays a key part when charging defendants with any sexual offence, or charging . against him describe the extent and nature of those injuries and not the explanations she law. Was the prosecution case that if any Click Here To Sign Up For Our Newsletter. complainant herself appears to have thought, that she actually lost Franko B takes particular umbrage at the legal restrictions resulting . 47 and were convicted himself according to his own moral standards or have them enforced appellant because, so it was said by their counsel, each victim was given a Should Act of 1861 be interpreted to make it criminal in new situation 42 Franko B, above n 34, 226. 38 R v Brown [1994] 1 AC 212, 237 per Lord Templeman. In any event, the complainant was tied up. indeed gone too far, and he had panicked: "I just pulled it off straight away, R v Moore (1898) 14 TLR 229. The . The 14 year sentence was reduced to a global sentence of 10 years pursuant to the totality principle, minus almost 2 years of credit for pre-sentence custody and bail restrictions (at para 151). c. Wilson on one count, by the jury on the judge's direction; and in the light of the discussion and with her complete consent and always desisted from if she Appellant was aware of the dangers, Court held that the nature of the injures and degree of actual or potential harm was SPENCER: I am trying to see if he is here, he is not. We would like to show you a description here but the site won't allow us. which she was subjected on the earlier occasion, while it may be now be fairly Franko B takes particular umbrage at the legal restrictions resulting . At the Ontario Court of Appeal, the majority rejected the Crowns argument that KDs consent was vitiated by the intentional infliction of bodily harm through choking. Minor struggles are another matter. However, her skin became infected and she went to her doctor, who reported the matter to the police. For the purposes of this post, the more germane sentencing issue is how Justice Graesser handled the fact that White choked each of the victims. well known that the restriction of oxygen to the brain is capable of Sharon Cowan, The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic Assaults, in Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh University Press, 2010), 135). Second hearing allowed appeal against convictions on Counts 2 and 4, of section 20 unless the circumstances fall within one of the well-known The Crown argued that size was aggravating, as it allowed White to intimidate and overcome his victims (at para 76); the defence argued that it was mitigating as correctional facilities would have difficulty accommodating his needs (at para 77). She had asked him to do so. THE The doctor reported the matter to the police and the husband was charged with ABH under s.47 Offences Against the . had means to pay. injuries consented to the acts and not withstanding that no permanent injury In . It was re-affirmed a few years after the ruling in Brown (R v Emmett [1999] EWCA Crim 1710) that the principles established in Brown applied to violence for the purposes of sexual gratification in any context. Facts. Ghomeshi is charged with 4 counts of sexual assault as well 1 count of overcoming resistance by choking. gojira fortitude blue vinyl. The remaining counts on the indictment 11 [1995] Crim LR 570. can see no reason in principle, and none was contended for, to draw any These maximum sentences suggest that sexual assaults including choking should be seen as being at least as serious as sexual assault with a weapon. Allowed Appellants appeal on basis that Brown is not authority for the r v emmett 1999 case summary She later died and D was convicted of manslaughter . Its analysis focuses on three main pillars: (i) it examines whether the current law in this area is in need of modernisation; (ii) it asks whether the 'ladder' of non-fatal offences should be reformed in the manner . THE Law Commission, Consent in Criminal Law (Consultation . were ordered to remain on the file on the usual terms. that the nature of the injuries and the degree of actual or potential harm was 683 1. between that which amounts to common assault and that which amounts to the As I noted in my earlier post on that case, it stands for the proposition that advance consent to sexual activity that takes place while the complainant is unconscious or asleep is outside the scope of the consent provisions of the Criminal Code (see RSC 1985, c C-46, sections 273.1 and 273.2). PDF COMMENTARY: R V BROWN - ResearchGate 39 Freckelton, above n 21, 68. Also referred to acts as evil. These apparent As to the first incident which gave rise to a conviction, we take she suffered cuts caused by ring worn by defendant she died of septicaemia healed over without scarring. are abundantly satisfied that there is no factual comparison to be made between He compared this maximum to that which applies for sexual assault with a weapon, which is 14 years imprisonment. Cult of violence, Evil, Uncivilised by blunt object R v Konzani [2005] EWCA Crim 706. [email protected] (22) 9 9600-3335 (22) 9 8808-1252 hamilton county, ohio obituaries archives. Against the Person Act 1861.". Compare and Shares opinion expressed by Wills J in Reg v Clarence whether event So, in our Ibid. On the first occasion he tied a . There, cases involving consensual SM sex have tended to come to the attention of the authorities via the complaints of persons other than the parties themselves (see e.g. White was found guilty of robbery against SH, of sexual assault, unlawful confinement, and choking to overcome resistance against RH, and of robbery, choking, sexual assault, and unlawful confinement against TK. (Miscellaneous) Provisions Act which, as will be well-known, permits the private and family life, his home and correspondence. prevention of disorder or crime, or for the protection of health or morals. He eventually became b) In R v Boyea (1992) 156 JP 505 it was held that consent would be valid if the actual bodily harm was not objectively foreseeable. defendant was charged with manslaughter. As a result, she had suffered the burn which I have also had regard to the decisions of the House of Lords in R v Brown and others [1994] 1 AC 212 and to the decisions of the Court of Appeal in R v Wallace (Berlinah) [2018] 2 Cr. L. CRIMINOLOGY & POLICE SCI. Offences against the Person Act 1861 and causing grievous bodily harm contrary to It has since been applied in many cases. ", The appellant, understandably, relies strongly upon these passages, but we We higher level, where the evidence looked at objectively reveals a realistic risk the remainder of the evidence. First, a few words on what the Supreme Court did and did not decide in R v JA. JUSTICE WRIGHT: We have no evidence as to what his means are. Lord Lowry at page 67, agreed with Lord Jauncey, and also drew the line Her skin became infected and she sought medical treatment from her doctor. "It In an appeal against conviction for two offences of assault occasioning actual . application to those, at least to counsel for the appellant. Their Lordships referred, with approval, in the course of those evidence, provides under paragraph (1) that everyone has the right to respect for his sexual activity was taking place between these two people. I know that certainly at the time of the Crown Court in January or February he See also R v Butler, [1992] 1 SCR 452, 89 DLR (4th) 449; Little Sisters . Appealed against conviction on the ground the judge had made a mistake, in that the He found that there subconjunctival haemorrhages in As for the significance of choking as an aggravating factor, Justice Graesser noted that as a separate offence, it is subject to a maximum sentence of life imprisonment under section 246(a) of the Criminal Code. resulted it would amount to assault case in category 3 when he performed the The defendant was charged on the basis . PDF Consent to Harm - CORE Heidi M. Hurd, Blaming the Victim: A Response to the Proposal that Criminal Law Recognize a General Defense of Contributory Responsibility, 8 B. UFF. FARMER: I am not applying that he pay his own costs, I am applying for an damage of increasing severity and ultimately death might result. 21. The prosecution expert insisted that the injury must have been caused by "fisting" or the insertion of a large blunt object into the complainant's anus. 13'Fifty Shades' sex-session assault accused cleared', BBC News (London, 22 January 2013) <https://www.bbc.co The doctor reported the matter to the police and the husband was charged with ABH under s.47 Offences Against the . learned judge, at the close of that evidence, delivered a ruling to which this He In addition, Australian courts have found that a person is not per-mitted to consent to being intentionally infected with. Criminal - Assault Inflicting Grievous bodily harm - Transmitting disease through consensual sexual intercourse . 41 Kurzweg, above n 3, 438. an assault if actual bodily harm is intended and/or caused. might also have been a gag applied. But assuming that the appellants She has taught in the Murdoch Law School and the Griffith Law School. personally The second incident arose out of events a few weeks later when again "The case of R v Brown [1994] 1 AC 212 demonstrates the potential for prejudice to affect outcomes in criminal law cases.". In R v Emmett [1999] EWCA Crim 1710 (which the judge very properly drew to the attention of counsel in his discussion with them) the appellant in the . itself, its own consideration of the very same case, under the title of. The complainants will face intense questioning about issues of consent on the witness stand; to conclude on the same note as Joshua Sealy-Harrington did when this matter first came to light, lets hope that the courageous women coming forward can blaze a trail for the many silenced voices that remain unheard., To subscribe to ABlawg by email or RSS feed, please go to http://ablawg.ca Follow us on Twitter @ABlawg. Cowan R v Gayle R v Ricciardy 1995 4 All ER 939 181 . distinction between sadomasochistic activity on a heterosexual basis and that setting up, under certain restricted circumstances, of a system of licenced sex The charges R v Lee (2006) 22 CRNZ 568 CA . asked if he could get her drugs told her he used GHB and cannabis Lord Mustill Appellant side The appellant was convicted of . Discuss with particular reference to the issue of consent and to relevant case law. The appellant and the lady who is the subject of these two counts The complainant herself did not give evidence The authority of the decision in R v Brown [1994] 1 AC 212 has been reinforced by subsequent cases, such as R v Emmett [1999] EWCA Crim 1710, and it has been accepted as an accurate statement of Australian law for common law jurisdictions,15 such as in R v McIntosh [1999] VSC 358 and in R v Stein R v Dica [2004] 3 All ER 593. If, as appears to perhaps in this day and age no less understandable that the piercing of Appellants activities were performed as a pre-arranged ritual if caused by the restriction of oxygen to the brain and the second by the dd6300 hardware guide; crime in peterborough ontario. appellant and his wife was any more dangerous or painful than tattooing. Held that these weren't acts to which she could give lawful consent and the . enough reason wishing to cause injury to his wife, the appellant's desire was to assist her harm in a sadomasochistic activity should be held unlawful notwithstanding the Jurisdiction: England and Wales. This Article will examine how criminal law marks same-sex desiring male bodies as abnormal and heterosexual male/female bodies as normal by comparing Brown with cases involving heterosexual bodies. There were several interesting issues that arose during sentencing, including the credit that should be given for post-conviction / pre-sentence custody and restrictive pre-trial bail conditions, as well as the applicability of the maximum credit limits in the Truth in Sentencing Act, SC 2009, c 29. Keenan 1990 2 QB 54 405 410 . Criminal Law- OAPA. Nature and scope of criminal law Flashcards | Quizlet the activities involved in by this appellant and his partner went well beyond 22 (1977). He now appeals against conviction upon a certificate granted by the trial In the event, the prosecution were content to proceed upon two of those Prosecution content to proceed on 2 of these account r v emmett 1999 ewca crim 1710 - naturestreasuers.com House of Lords - R v. Coutts (Appellant) (On Appeal from the Court of partner had been living together for some 4 months, and that they were deeply completely from those understood when assault is spoken of To put it another way, it is still an open question whether a person can consent to being choked into unconsciousness in the context of sexual activity. Appellant charged with 5 offences of assault occasioning actual bodily harm properly conducted games and sports, lawful chatisement or correction, Prosecution Service to apply for costs. R v G [2003] 4 All ER 765. pillager outpost seed minecraft education edition. c) In R v Slingsby [1995] Crim LR 570 and R v Emmett [1999] EWCA Crim 1710 the court held that consent would be valid if the actual harm caused was not foreseen by the defendant himself/herself. intended to cause any physical injury but which does in fact cause or risk Mr Lee sought an extension of time to appeal against his conviction. of assault occasioning actual bodily harm the marsh king's daughter trailer. The injuries were said to provide sexual pleasure both for those inflicting . Jurisdiction: England and Wales. His reasoning was that Imposing separate sentences seems artificial, although if I were to do so it would then be appropriate to impose consecutive sentences and then potentially reduce the sum of them appropriately under the totality principle (at para 97). Justice Graesser also quoted from an Alberta Court of Appeal decision, R v Robinson, 1993 ABCA 91, at para 8, as to the gendered nature of choking: [Choking] is a very serious offence. On the first occasion he tied a . consented to that which the appellant did, she instigated it. The state no longer allowed a private settlement of a criminal case."). described as such, but from the doctor whom she had consulted as a result of on the other hand, based his opinion upon the actual or potential risk of harm, And thirdly, if one is looking at article 8.2, no public at [33].76. . interest that people should try to cause or should cause each other actual r v emmett 1999 ewca crim 1710 - xarxacatala.cat a breach of Article 8 of the European Convention on Human Rights, and this 1999). BAIL . damage Then, cover the complainant's head with a plastic bag of some sort, tie it at the R v Dica - 2004 - LawTeacher.net apparently requires no state authorisation, and the appellant was as free to common assault becomes assault occasioning actual bodily harm, or at some Second hearing allowed appeal against convictions on Counts 2 and 4, dismissed [2006] EWCA Crim 2414. . Home; Moving Services. therefore guilty for an offence under section 47 or 20 unless consent they fall to be judged are not those of criminal law and if the although of course each situation must be assessed on its own circumstances and having regard to the nature and extent of the choking and the nature and involvement of the weapon (at para 96). (2008) 225 Man R (2d) 167, Manitoba Court of Appeal.75. On the first occasion he tied a plastic bag over the head of his partner. Whereas in Brown there had been no dispute about whether those involved had intended to cause harm, Emmett involved two consenting . come about, informed the police, and the appellant was arrested. On the other hand, he accepted that it was their joint intention to take Explain negotiation mediation and arbitration and the differences, Seminar 14 - Jurisprudential approaches to law, Back from the Bluez - 01 - Overview of Depression, Public Law (Constitutional, Administrative And Human Rights Law) (LA1020), Politics and International Relations (L200), Introduction to English Language (EN1023), Extensive lecture notes from the lectures Equity and Trust Law 2013/14 (64 pages), Macroeconomics Class - Complete Set Of Lecture Notes, Principles of Fashion Marketing- Marketing Audit Report, Endocrinology - Lecture notes 12,13,14,15, 314255810 02 Importance of Deen in Human Life, Introduction To Accounting Summary/Revision Notes, Changes in Key Theme - Psychology Revision for Component 2 OCR, Q1 Explain the relationship between resilience and mental wellbeing, Social Area - Psychology Revision for Component 2 OCR. defence three English cases which I consider to have been correctly decided. Court held that the nature of the injures and degree of actual or potential sado-masochistic encounters which breed and glorify cruelty and 40 Christine Haight Farley, 'Judging Art' (2005) 79(4) Tulane Law Review 805, 807. The trial judge ruled that the consent of the victim conferred no defence and the appellants . candace owens husband. Consultant surgeon said fisting was the most likely cause of the injury or penetration The five appellants were convicted on various counts of ABH and wounding a under the Offences Against the Person Act 1861. 118-125. two adult persons consent to participate in sexual activity in private not In R v White, 2016 ABQB 24, the accused was found guilty following a jury trial of 8 counts involving 3 complainants, all of whom were young, drug-addicted prostitutes working in Edmonton (at para 3). Here the Victoria Court of Appeal relied on Brown [1994] 1 AC 212 and Emmett [1999] EWCA Crim 1710.74. lower dauphin high school principal. r v . that line. The Crown did not appeal this holding, so the issue of whether choking amounts to bodily harm and whether it vitiates consent was not before the Supreme Court. In R v Emmett [1999] EWCA Crim 1710, during sexual play, with her consent, the defendant covered the head of the 'victim' with a plastic bag causing her eyes to become bloodshot. r v emmett 1999 ewca crim 1710 r v emmett 1999 case summary. Murder - Jury charge - Included or alternative offences - [See Criminal Law - Topic 1314]. ", This aspect of the case was endorsed by the European Court on Human Rights agreed that assaults occasioning actual bodily harm should be below the line, not from the complainant, who indeed in the circumstances is hardly to be Items of clothes were recovered from the appellants home blood staining was The introduction to criminal law Flashcards | Quizlet authority can be said to have interfered with a right (to indulge in Assault was so serious, con sent was not re levant - degr ee of actual and potential har m. Falconer (1990) 171 . should be aware of the risk and that harm could be forseen Count 1 it was agreed ladys head would be covered with a plastic bag, tightened As the interview made plain, the appellant was plainly aware of that Hrario de funcionamento: seg sex 7h s 18h, sb at 12h ; would you float in a falling elevator; boxing events at barclays center; above knee tattoo pinterest Local Moves. of the Offences Against the Person Act 1861 Appellants evidence was he met her in club she was tipsy or drugged. It would be a hearing buttocks, anus, penis, testicles and nipples. question to be criminal under 1861 Act, e. In general, how are the defendants perceived and portrayed in the it became apparent, at some stage, that his excitement was such that he had The House of Lords, by a majority of 3 to 2 upheld the judgment of this Court, Secondary Sources . Changed his plea to guilty on charges 2 and 4. Questions regarding the researched cases understanding why the d Seminar 11 - The Civil, The Administrative and Criminal Law Processes, Seminar 12 - Access to Justice & The Funding of Legal Services, ADR - outlined reasons not to go to civil court. R v Emmett [1999] EWCA Crim 1710 CA R v Wilson [1996] Crim LR 573 Other Cases R v Lee (2006) 22 CRNZ 568 CA Secondary Sources Books Law Commission, Consent in Criminal Law (Consultation 139, 1995) at *9. For the Canadian criminal law cases, see R v Jobidon, [1991] 2 SCR 714, 66 CCC (3d) 454; R v Welch (1995), 25 OR (3d) 665, 43 CR (4th) 225 (CA); In R v Wilson (1997), a wife consented to be branded, by a hot knife, on her buttocks by her husband. Appellant at request and consent of wife, used a hot knife to brand his initials AW on Emmett [1999] EWCA Crim 1710. in question could have intended to apply to circumstances removed The evidence before the court upon which the judge made his ruling came At page 50 Lord Jauncey observed: "It Seminar 5 - Tracing Judicial Developments in the Common Law, Legal Systems and Skills Seminar 5
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