R v Brown

The five appellants engaged in sadomasochistic sexual acts, consenting to the harm which they received; whilst their conviction also covered alike harm against others, they sought as a minimum to have their mutually consented acts to be viewed as lawful. None of the five men complained of any of the acts in which they were involved, which were uncovered by an unrelated police investigation.^[2] The physical severity was not disputed. Each appellant (having had legal advice) pleaded guilty to the offence when the trial judge ruled that consent of the victim was no defence.

The question approved and certified as in the public interest on appeal was whether the prosecution had to prove (in all similar cases) a lack of consent on the recipient's part. The appellants argued against conviction under the Offences Against the Person Act 1861 as they had in all instances consented to the acts they engaged in (volenti non fit injuria), that as with tattooing and customary-site body piercings their consent would be directly analogous to the lawful exceptions laid out by three cornerstone (and other) widely-spaced precedent cases.

The certified question of appeal which the House of Lords was asked to consider was:

Where A wounds or assaults B occasioning him actual bodily harm (ABH) in the course of a sado-masochistic 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?^[3]

The Lords – by a bare majority, two out of five dissenting – answered this in the negative, holding that consent could not be a defence to these (typically overlapping) offences.

Lord Templeman stated:

It is not clear to me that the activities of the appellants were exercises of rights in respect of private and family life. But assuming that the appellants are claiming to exercise those rights I do not consider that Article 8 invalidates a law which forbids violence which is intentionally harmful to body and mind. Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised. I would answer the certified question in the negative and dismiss the appeals of the appellants against conviction.^[1]

His judgment examined the acts to be "unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless".

Lord Jauncey stated:

Before examining these cases it is interesting to look at the definitions of "Maim" and "Assault" in Hawkins' Pleas of the Crown, 8th ed. (1824), Book 1 in Chapter 15. Maiming is defined, at p. 107, Sect. 1, as "... such a hurt of any part of a man's body whereby he is rendered less able, in fighting, either to defend himself or to annoy his adversary ..." Examples are then given. Assault is defined, at p. 110, Sect. 1, as "... an attempt to offer, with force and violence, to do a corporal hurt to another" and battery (Sect. 2) as "... any injury whatsoever be it never so small, being actually done to the person of a man in an angry, revengeful, rude, or insolent manner..."

... the conclusion from each of them is clear, namely, that the infliction of bodily harm without good reason is unlawful and that the consent of the victim is irrelevant. In the unreported case of Reg. v. Boyea (28 January 1992), in which the appellant was convicted of indecent assault on a woman, Glidewell L.J. giving the judgment of the Court of Appeal (Criminal Division) said:

"The central proposition in Donovan [1934] is in our view consistent with the decision of the court in the Attorney General's Reference (No. 6 of 1980) [1981]. That proposition can be expressed as follows: an assault intended or which is likely to cause bodily harm, accompanied by indecency, is an offence irrespective of consent, provided that the injury is not 'transient or trifling'."

...

I prefer the reasoning of Cave J. in Coney and of the Court of Appeal in the later three English cases which I consider to have been correctly decided. In my view the line properly falls to be drawn between assault at common law and the offence of assault occasioning [ABH] created by section 47 of the Offences Against the Person Act 1861, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of section 20 unless the circumstances fall within one of the well known exceptions such as organised sporting contests and games, parental chastisement or reasonable surgery.

Furthermore, the possibility of proselytisation and corruption of young men is a real danger even in the case of these appellants and the taking of video recordings of such activities suggest that secrecy may not be as strict as the appellants claimed to your Lordships. If the only purpose of the activity is the sexual gratification of one or both of the participants what then is the need of a video recording?

My Lords, I have no doubt that it would not be in the public interest that deliberate infliction of [ABH] during the course of homosexual sado-masochistic activities should be held to be lawful ... If it is to be decided that such activities as the nailing by A of B's foreskin or scrotum to a board or the insertion of hot wax into C's urethra followed by the burning of his penis with a candle or the incising of D's scrotum with a scalpel to the effusion of blood are injurious neither to B, C and D nor to the public interest then it is for Parliament with its accumulated wisdom and sources of information to declare them to be lawful.^[1]

Lord Lowry stated:

The disagreement concerns offences which occasion actual bodily harm.

...

In the immediately following paragraph of his judgment the Lord Chief Justice [court below us] shows that what he said in Attorney General's Reference (No. 6 of 1980) was intended by him to be of general application ...

If, as I, too, consider, the question of consent is immaterial, there are prima facie offences against sections 20 and 47 and the next question is whether there is good reason to add sado-masochistic acts to the list of exceptions contemplated in Attorney-General's Reference. In my opinion, the answer to that question is "No".

In adopting this conclusion I follow closely my noble and learned friends Lord Templeman and Lord Jauncey. What the appellants are obliged to propose is that the deliberate and painful infliction of physical injury should be exempted from the operation of statutory provisions the object of which is to prevent or punish that very thing, the reason for the proposed exemption being that both those who will inflict and those who will suffer the injury wish to satisfy a perverted and depraved sexual desire. Sado-masochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. A relaxation of the prohibitions in sections 20 and 47 can only encourage the practice of homosexual sado-masochism and the physical cruelty that it must involve (which can scarcely be regarded as a "manly diversion") by withdrawing the legal penalty and giving the activity a judicial imprimatur. As well as all this, one cannot overlook the physical danger to those who may indulge in sado-masochism. In this connection, and also generally, it is idle for the appellants to claim that they are educated exponents of "civilised cruelty".

As your Lordships have observed, the appellants have sought to fortify their argument by reference to the European Convention on Human Rights. On the view which I have taken, Article 7 has no relevance since the question of retrospective legislation or a retrospective judicial decision does not arise.

Article 8.1 of the Convention states that everyone has the right to respect for his private and family life, his home and his correspondence. The attempts to rely on this article is another example of the appellants' reversal of the onus of proof of legality, which disregards the effect of sections 20 and 47. I would only say, in the first, place, that article 8 is not part of our law. Secondly, there has been no legislation which, being post-Convention and ambiguous, falls to be construed so as to conform with the Convention rather than to contradict it. And thirdly, if one is looking at article 8.2, no public authority can be said to have interfered with a right (to indulge in sado-masochism) by enforcing the provisions of the 1861 Act. If, as appears to be the fact, sado-masochistic acts inevitably involve the occasioning of at least [ABH], there cannot be a right under our law to indulge in them.^[1]

Lord Mustill preferred consensual, private, sexual acts, up to and including involving ABH, to be outside of criminality:

In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all ... [leaving aside] repugnance and moral objection, both of which are entirely natural but neither of which are, in my opinion, grounds upon which the court could properly create a new crime.^[4]

Lord Slynn agreed:

As Goff L.J. put it in Collins v. Wilcock [1984] 1 W.L.R. 1172, 1177: "Generally speaking, consent is a defence to battery." As the word "generally" suggests the exception was itself subject to exceptions. Thus in Stephen's Digest of the Criminal Law^[a] it is stated in article 206 "Everyone has a right to consent to the infliction upon himself of bodily harm not amounting to a maim". By way of footnote it is explained that "Injuries short of maims are not criminal at common law unless they are assaults, but an assault is inconsistent with consent". Maim could not be the subject matter of consent since it rendered a man less able to fight or defend himself. (Hawkins Pleas of the Crown, 8th ed., Book 1, p. 107). Nor could a person consent to the infliction of death [the next article of the digest] or to an infliction of bodily harm in such manner as to amount to a breach of the peace (article 208).

The law has recognised cases ... where consent can be a defence ... surgical operations, sports, the chastisement of children, jostling in a crowd, but all subject to a reasonable degree of force being used, tattooing and earpiercing; the latter [not a defence] include death and maiming. None of these situations, in most cases pragmatically accepted, either covers or is analogous to the facts of the present case. It is, however, suggested that the answer to the question certified flows from the decisions in three cases ... R. v. Coney (1882) ... the injuries given and received in prize- fights are injurious to the public ... Rex. v. Donovan [1934] ... was accepted to be an issue for the jury as to whether the prosecution had proved that the girl had not consented and whether the consent was immaterial ... Attorney General's Reference (No. 6 of 1980) [1981] two youths fought ... argument ... consent is no defence "where people ... try to cause ... or cause each other bodily harm for no good reason."

It seems to me that the notion of "consent" fits ill into the situation where there is a fight.

Three propositions seem to me to be clear.

It is "... inherent in the conception of assault and battery that the victim does not consent" (Glanville Williams [1962] Grim. L.R. 74, 75).

Secondly, consent must be full and free and must be as to the actual level of force used or pain inflicted. Thirdly, there exist areas where the law disregards the victim's consent even where that consent is freely and fully given. These areas may relate to the person (e.g. a child); they may relate to the place (e.g. in public); they may relate to the nature of the harm done. It is the latter which is in issue in the present case.

...

If a line has to be drawn, as I think it must, to be workable, it cannot be allowed to fluctuate within particular charges and in the interests of legal certainty it has to be accepted that consent can be given to acts which are said to constitute [ABH] and wounding.

...

My conclusion is thus that as the law stands, adults can consent to acts done in private which do not result in serious bodily harm ... [Here] ... it must be proved by the prosecution that the person to whom the act was done did not consent to it. Accordingly I consider that these appeals should be allowed and the conviction set aside.

Legal journals and textbooks of the 21st century tend towards criticism of the majority's analysis and overtones.^[5] Baker^[6] writes:

The sadomasochists might argue that the telos of the participants' activities in sadomasochism is merely to achieve sexual gratification. But every time they want to achieve the ulterior aim of sexual gratification, they need to harm each other. The harm has to be repeated each time the recipient wants to receive sadomasochistic pleasure. The two are inseparable—the sexual gratification can only be achieved while the harm is being inflicted. Per contra, adornment procedures only involve a one-off wounding, burning, etc., which results in a long-term benefit. There is nothing unreasonable about preventing people from repeatedly inflicting grievous bodily harm upon others, merely because they want to repeat the ephemeral sexual thrill it gives them. Nonetheless, it seems that this argument should not apply to [ABH]. Those who regularly inflict [ABH] on themselves by smoking and drinking excessively are not criminalized, nor are those who supply them with the instruments of harm. Similarly, professional athletes regularly subject their bodies to [ABH], but recover.^[7]

Marianne Giles calls the judgment "paternalism of an unelected, unrepresentative group who use but fail to acknowledge that power".^[8]

Two years later Baker argued

that an application of the harm principle to many forms of nontherapeutic cosmetic surgery shows that these procedures are a form of physical harm, not a form of medicine, and therefore ought to be criminalized. Not only does the harm principle support the case for criminalization, but so too do the relevant precedents. This article focuses on the general moral justifications (wrongful harm to others) for criminalizing unnecessary harmful cosmetic surgery, but legal doctrine is also invoked to demonstrate that there is a legal justification for criminalization. The famous English case of R. v. Brown will be discussed to outline the core legal case for criminalization. This article does not aim to provide a comparative study of the U.S. and English authorities, but rather aims to make theoretical arguments for criminalization, and thus, works from the legal premise that in most states the U.S. courts have taken a similar position to that taken in the seminal English House of Lords decision in R. v. Brown.^[9]

Opposition to the judgment (in both consecutive appeals) legally focusses on the dissenting two final judges and the contrasting R v Wilson whereby a husband painfully branded his initials on his wife's buttocks at her request.^[10] Fears of bias due to heteronormativity were allayed in R v Emmett,^[11] whereby the lower court of binding precedent, the Court of Appeal of England and Wales, held the same rules apply to heterosexual participants in such acts.^[12]

Citing R v Brown, law professors Fox and Thomson (2005) argue against non-therapeutic circumcision of boys, to the audience of medical professionals.^[13]

• K. A. v Belgium
• Laskey, Jaggard and Brown v United Kingdom

• Operation Spanner
• Consent (criminal law)
• Rough sex murder defense

 

Wikisource has Regina v Brown:

R v Brown

• The Circumcision Ref. Library, R v Brown full case judgment
• JustisOne