When to convict consenting adults
MY FAVOURITE CASE:A UK sadomasochism case allows us to consider when the state should be allowed to criminalise actions between consenting adults
What is your favourite case?
Many years before the publication of EL James’s 50 Shades of Grey, sadomasochism was slap-bang before the English courts. The case of R v Brown Ors whipped up controversy and undoubtedly left its mark on the issue of consent and non-fatal offences.
In the late 1980s, a group of more than 40 men decided to video themselves inflicting sadomasochistic tortures on each other on numerous occasions at a variety of different locations.
The videos spanned a 10-year period and showed the men engaging in various acts, including beatings and the maltreatment of their genitalia with a selection of instruments such as fish hooks, hot wax, nettles and cat-o-nine tails.
All acts were carried out in private, consensually and for no other purpose than achieving sexual pleasure and gratification.
The videos were copied and distributed among members of the group. Unfortunately for the men, the police came into the possession of these videos.
Some members of the group were charged with unlawful and malicious wounding and assault occasioning actual bodily harm on each other contrary to Offences Against The Person Act.
The trial judge ruled that the accused men could not rely on the defence of consent and the men were convicted in 1990 and sentenced to terms of imprisonment. An appeal against the conviction to the Court of Appeal failed, so the men appealed to the House of Lords.
The question before the House of Lords was, “Where A wounds or assaults B occasioning him actual bodily harm in the course of a sadomasochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A’s guilt under section 20 or section 47 of the Offences against the Person Act 1861?”
The appeal was dismissed by a bare majority of the House of Lords.
Lord Jauncey of Tullichettle, in the majority, held that “in considering the public interest, it would be wrong to look only at the activities of the appellants alone, there being no suggestion that they and their associates are the only practitioners of homosexual sadomasochism in England and Wales”.
Lord Jauncey seemed concerned that others who practised these “rather curious activities” may not be as “controlled or responsible as the appellants are claiming to be”, which could result in wounds becoming septic, the spread of Aids or the “proselytisation and corruption” of young men.
Lord Mustill did not share Lord Jauncey’s concerns and further noted issues relating to article 8 of the European Convention for the Protection of Human Rights as argued by the appellants.
Interestingly, the decision of the House of Lords was subsequently appealed to the European Court of Human Rights, arguing that the conviction violated their right to privacy, as per article 8 of the convention. However this was unanimously rejected by that court.
Why is this your favourite case?
The case remains one of my favourite as it is one which sparked memorable interest and debate while studying criminal law at undergraduate level.
The case forces the reader to consider, objectively, their stance on activities they may be unfamiliar with and explore the deeper issue of when the state should be allowed to criminalise actions between consenting adults. How much the case is reflective of attitudes at the time is also worthy of reflection.
While the sexual persuasion of the men involved in this case is not necessarily relevant to the outcome, ignorance and lack of acceptance has resulted before in actions amongst consenting adults being criminalised, most notably homosexuality, which was only decriminalised in this jurisdiction in 1993.
Thankfully, few today would advocate for the criminalisation of homosexual acts, but the issue of consent is still relevant and divisive for other more topical issues such as euthanasia, to name but one example. These matters, as with R v Brown, are steeped in pro and con public interest arguments.
Is the case still relevant today?
Aside from the broader, social and moral considerations the case raises, R v Brown is relevant to how the law in the area stands today. In his dissenting judgment, Lord Slynn of Hadley opined that it was for the legislature, not the courts, to decide if acts of this kind should fall within the criminal law.
In this jurisdiction, the Non Fatal Offences Against the Person Act 1997 did just that, legislating the definition of assault in section 2 of the Act which lists lack of consent as an ingredient of the offence. Section 3, which relates to assault causing harm also, therefore, allows for the defence of consent. Section 4, causing serious harm, removes the word “assault” thereby legislating that consent is not a defence to an intentional or reckless act which causes serious harm.
Public interest considerations through common (judge-made) law have resulted in exceptions being made for actions such as surgery and boxing.