Introduction
Consensual sadomasochism(SM) constitutes criminal assault in the United Kingdom.[1] This comes from R v Brown,[2]a House of Lords case in which a group of men were convicted for their involvement in consensual sadomasoch*stic sexual acts. The key issue facing the Court was whether consent was a valid defence to assault in these circ*mstances. The Court answered in the negative. Within the judgement Lord Templeman stated this question can only be answered through consideration of policy and public interest”.[3]The aforementioned judgement has been called “autonomy-constricting moralism”[4] while justified as an act to protect society by criminal sanctions against a cult of violence which potentially fostered proselytisation of young men”.[5]This critique will focus on key aspects of; the potential miscategorisation of the sadomasoch*stic acts therein as ‘violent’ as opposed to ‘sexual’, the consensual element at play, the dissenting judgements’ arguments on the acts’ illegality under existing laws on violence, and the level of harm issue in theratio decedendi. With those in mind this critique will aim to highlight the potential legal weaknesses of this House of Lords decision.
The Facts, Judgement, and Ratio Decedendi of R v Brown [1993] UKHL 19
In this case, a group of men (appellants) willingly participated in the commission of sadomasochism against each other, including genital torture, for the sexual pleasure it evoked.[6] Passive partners consented to the acts committed and suffered no permanent injury.[7] The activities occured in private; albeit recorded solely for the delectation of the group.[8] The appellants were tried on charges of assault occasioning actual bodily harm, contrary to s 47 of the Offences against the Person Act 1861, and unlawful wounding, contrary to s 20 of that Act. The initial trial judge held that the consent of the victim afforded no defence to the charges, the appellants then pleaded guilty and were sentenced to terms of imprisonment.[9] The appellants appealed against their convictions, contending that a person could not be guilty of assault of that nature in respect of consensual acts conducted in private. The Court of Appeal dismissed their appeals.[10] The appellants appealed to the House of Lords who held, with Lord Mustill and Slynn dissenting, that consensual sadomasoch*stic encounters which occasion actual bodily harm to a victim is an assault. They held this in the interests of public policy. It thus followed that the appeals would be dismissed.[11] The law following Brownseems to be that consensual assault causing ‘harm’ above the level of assault (such as in sadomasochism) isprima facieunlawful unless such behaviour falls within one of the exceptional categories grafted by the common law, which would subsequently legalise the conduct in question.[12]
Sadomasochism: Sex or violence?
In Brown the sadomasoch*stic acts were misguidedly characterised as ‘seriously violent’ and not ‘sexual’ thereby making them incapable of being ‘ratified’ by the concept of consent.[13] Hence the judgement assumed: ‘that sex and violence are distinct and easily separable’ and that ‘consent to one is not necessarily consent to the other’.[14] So, if the law insists upon mutual exclusivity, ‘is Brownabout sexual practices between consenting adults in private, or is it about deviant, legally unprotected ‘violent’ sexual practices’?[15] To support the former statement, it must be established that SM is legitimate sexual expression albeit involving violence, if so, then consent should and does play a role determining the criminalisation of any resulting harm. In Brown the ‘violent’ categorisation was founded on the infliction of pain within the acts. Yet what if pain is a subjective experience intrinsically linked with pleasure within the human nervous system? Hence, pain in a sadomasoch*stic context may not constitute ‘pain’ but sexual pleasure. Recent studies shed light on this phenomenon. In one study, researchers used fMRI to visualise the brains of women as they stimulated themselves to climax, found that more than 30 areas of the brain were active, including those involved in pain.[16]Another found cancer survivors, who had spinal nerves severed to relieve chronic pain, lost the ability to have org*sms.[17]If their pain returned, so did the org*sms. Then a study into paracetamol affecting emotions[18] found the painkilling drug relieved emotional pain, but blunted feelings of pleasure. The drug levelled-off highs as well as lows – an indicator that pain and sexual pleasure operate on shared biological pathways. For human beings, then, it appears that pain and pleasure are intertwined.[19] Nafsika Athanassoulis communicated how this relates to Brownquite eloquently with the words “sadomasochism is sex expressed through violence”.[20] Hence the characterisation of Brownas ‘violent’ is debunked and it is now asserted that sadomasochism is better characterised as ‘sexual’.
Consent in Brown
If accepted that Brownsadomasochism is sexual then it is subject to the general rules of sexual consent and examined alongside the exceptional category of HIV transmission. If consent means ‘factual expressive consent’ [21], this was achieved in Brown. The conditions of freedom, knowledge, capacity, and motivation that are deemed necessary to ‘transmute X’s factual (expressive) consent into legalconsent’,[22] were fulfilled so the participant’s consent was not ‘legally defective’ due to coercion, deception or incompetence.[23] Hence inBrown sadomasochism was sexually consensual. Robin Mackenzie criticised that only isolated acts of apparently sudden violence were exhibited on video to the judges, because ‘were the actions placed in the context of on-going negotiations and gradually increased stimulation (as seen in other parts of the video), a more empathetic understanding of such practices as [sexually consensual] might be, and indeed should be fostered’.[24] However there is the element of harm occurring within Brownbut a common law exceptional category exists which allows for informed consent to the risk of serious harm for sexual ends.
This is R v Dica.[25]Dicaconcerned the transmission of HIV, which the law defines as grievous bodily harm (GBH) - a significantly more serious level of consensual harm than Brownallows for. Dicastated that parties can consent to the risk of transmission, which can be construed to mean that one can consent to the risk of serious harm for the sake of sexual gratification. Brown, by contrast, states that parties cannot consent to the risk of actual bodily harm (ABH) and ‘wounding’ for the sake of sexual gratification.[26] Cowan observes that Dicaallows for consensual harm within a sexual context, which justifies its derogation from Brownon the assumption the acts therein were ‘violent’. However this distinction from Brownis highly questionable if it is ‘sexual’ as our previous critique asserted. Furthermore the ‘harm’ in Browncame nowhere near the level of harm which was permissible in Dica, as HIV infection is tantamount to permanent debilitating illness and ultimately, premature death[27] whereas in Brownthere was no lasting injury. The Dica ratioitself states there is a realm of private sexual relations in which the criminal law should not interfere,[28] such logic which is clearly applicable to Brown.Therefore there is little evidence to justify this exclusion of Brownfrom the Dicaexception. If sadomasochism, in the absence of permanent injury, constitutes the infliction of violence, it is illogical that HIV infection resulting from consensual risk-taking does not.[29]
Dicaemphasises the severity of HIV infection to distinguish it from the ‘ordinary’ risks of unprotected sexual intercourse, such as unwanted pregnancy or common STIs. One can implicitlyconsent to these ‘lesser’ risks without an exceptional category. It is asserted that while Dicais right to distinguish the severity of HIV from the relative triviality of ‘ordinary’ sexual risks, it is misguided in its attempts to contrast SM with the ‘ordinary risks’, by equating it with HIV infection.[30] This is questionable as Dica can seem to implicitly propose that one, if fully informed, ‘can expressly consent to the risk of HIV infection but not SM, because the risk of HIV is still one of those risks that (‘ordinary’) heterosexual intercourse incurs’[31] which can be construed to evidence the court’s normative approach to sexually deviant hom*osexual practices. It is problematic if the law perceives the heterosexual transmission of a fatal disease more positively than impermanent/superficial injury caused by hom*osexual sadomasochism.
Inclusion of sadomasoch*stic behaviour as an offence under assault
Henceforth this critique shall proceed assuming that the courts are not in a position to accept sadomasochism as a legitimate means of sexual expression. It will focus on the legal content of the judgements in R v Brown, with an emphasis on the rationale of those dissenting. As previously outlined, the decision in Brown was made with public policy at its core, to protect society through criminal sanctions from a ‘cult of violence’ which could convert young men to it.[32]Yet, Lord Mustill outlines in his dissenting judgement, ‘corruption of youth is already catered for by the existing legislation’ ‘if there is a gap in it which needs to be filled the remedy surely lies in the hands of Parliament, not in the application of a statute which is aimed at other forms of wrong-doing’.[33] Therein lies two important statements that reference other aspects of this judgement. That the public policy concern was addressed within pre-existing legislation, hence the Brown ratiois undermined and that there was not sufficient ground for declaring the Brownactivities to be criminal under the Offences against the Person Act 1861.[34]The later matter is debatable with contentions that the majority focused on the wrong legal idea,[35] they fixated on establishing the sadomasoch*stic acts were criminal and did not adequately consider ‘Were they criminal under the Act of 1861?’. Lord Mustill stated the statute was “intended to penalise conduct of quite a different nature” and ponders “should in this new situation be interpreted so as to make it criminal”.[36]Furthermore, Lord Slynn in his dissenting judgement in response to the DPP’s submission that it was a matter of policy; should the courts “adopt a paternalistic attitude as to what is bad or good for subjects, in particular as to deliberate injury”? He established it was an area of policy where social and moral factors were extremely important and changeable, hence “it [was] a matter of policy for the legislature to decide.”[37] He further asserted it was not for the courts “to introduce into existing statutory crimes, concepts which did not properly fit there”. In his eyes it was the duty of Parliament to amend the Act of 1861 or the Sexual Offences Act 1967 for the Brown activities to be criminal under them.[38]Hence it becomes apparent that the House of Lords, in their revulsion and eagerness to sanction the behaviour in Brown, may have extended the Offences Against the Persons Act 1861 to cover actions distinctly outside of its legal remit.
Level of harm
Aside from its inclusion under assault, there is another legal issue in Brown: the level of harm. In Brown the Lords heard from Mr. Purnell Q.C. that the appellants were liable under general law because the harm was to a degree where it went from non-criminal consensual violence to criminal.[39] Hence the court sought to establish a border between the two, thus the level of harm appears in Brown’s ratio.[40] Lord Slynn raised his concerns on this matter stating if a line is drawn “to be workable, it cannot be allowed to fluctuate within particular charges”.[41] This has been evoked in recent works which ask ‘are the courts to start evaluating the validity of consent on the basis of some undeclared judicial barometer of the severity of harm?’[42] Perhaps the qualifying level of harm is arguably determined by judicial creativity on a case by case basis?[43] If we look to preexisting examples of applying the level of harm principle the negative answer becomes arguably more concrete. The Brownpractices have been equated with those in R vEmmett,[44] where a man tied a plastic bag over the head of his partner and on another occasion poured lighter fluid over her and set it alight in the pursuit of sexual gratification, and was therefore deemed to cause harm of too high a level to be legal. But this is debatably wrong, because the risks posed and harm caused in the latter were arguably much higher than those in Brown, including loss of consciousness and serious burns.[45]The European Court of Human Rights subsequently distinguished R v Wilson,[46]which concerned the branding of a woman by her husband for sexual gratification but was deemed legally exempt under assault due to the exceptional category of body modification (specifically tattooing), because the injuries in that case were considered ‘not at all comparable in seriousness’[47] with those in Brownor Emmett. Yet in Wilsonthe injuries themselves amounted to ABH namely the level of harm incurred in Brown. Hence if we are to look at how the precedent of Brownhas been interpreted it solidifies the argument that Brownis an inherently poor judgement with respect to the factors considered in its determination.
Conclusion
R v Brown and the subsequent criminalisation of the sadomasoch*stic behaviour therein under the Offences against the Person Act 1861 coupled with the legal precedents it created are inherently flawed. As established within this critique the Court’s characterisation of Brown as ‘violent’ is questionable given the compelling evidence and arguments that is is better understood in a ‘sexual’ context. Had it been viewed within this context the consensual nature of the sadomasoch*stic behaviour could have absolved the appellants of criminal culpability. Furthermore, if accepted as ‘sexual’, then Brown’s potential inclusion underDica becomes notably less objectionable and thus the question of allowing one to consent to GBH but not ABH sheds light on the Court’s normative approach to Brown. Additionally, the dissenting judgements in Brownpresent insight into the Court’s potential manipulation or misconstruing of the Act of 1861 in their efforts to criminalise the aforementioned actions and express a notable concern over the usage of a ‘level of harm’ principle in a legal setting. As evidenced by the subsequent case examples provided they were undoubtedly and assuredly correct to voice such worries. Hence the legal weaknesses in Brown are apparent and it is my assertion, with these in mind, that the criminalising of sado-masoch*stic activities in this case was plainly wrong.
[1]Halsburys Laws(5thedn, 2010) vol 26, para 125.
[2][1993] UKHL 19.
[3]R v Brown[1993] UKHL 19.
[4]Paul Roberts, ‘The Philosophical Foundations of Consent in the Criminal Law’ [1997] 17 Oxford Journal of Legal Studies389, [413].
[5]R v Brown[1993] UKHL 19.
[6]R v Brown[1993] 2 All ER 75.
[7]Ibid.
[8]Ibid.
[9]Ibid.
[10]Ibid.
[11]Ibid.
[12]Halsburys Laws(5thedn, 2010) vol 26, para 125.
[13]David Ormerod, Smith & HoganCriminal Law(12thedn, OUP 2008).
[14] Sharon Cowan, The Pain of Pleasure: Consent and the Criminalisation of Sado-masoch*stic ‘Assaults’ in Andrew Ashworth and Eric M. Clive Essays in Criminal Law in honour of Sir Gerald Gordon(Edinburgh Studies in Law) (English University Press 2010).
[15]Nicholas Bamforth, ‘Sadomasochism and Consent’ [1994] Criminal Law Review661, [663]
[16]Komisaruk, Barry & Wise, Nan & Frangos, Eleni & Liu, Wen-Ching & Allen, Kachina & Brody, Stuart, Women's cl*tor*s, vagin*, and Cervix Mapped on the Sensory Cortex: fMRI Evidence (2011) The Journal of Sexual Medicine 8 <https://www.researchgate.net/publication/51529414_Women's_cl*tor*s_vagin*_and_Cervix_Mapped_on_the_Sensory_Cortex_fMRI_Evidence> accessed 17 October 2019.
[17]Aerts, Enzlin, Verhaeghe, Poppe, Vergote, Amant, Long-term sexual functioning in women after surgical treatment of cervical cancer stages IA to IB: a prospective controlled study (2014) International Journal of Gynecological Cancer <https://www.ncbi.nlm.nih.gov/pubmed/25180463> accessed 17 October 2019.
[18]Durso, Luttrel, Way, Over-the-Counter Relief From Pains and Pleasures Alike: Acetaminophen Blunts Evaluation Sensitivity to Both Negative and Positive StimuliPsychological Science26(6), 750–758. <https://doi.org/10.1177/0956797615570366> accessed 17 October 2019.
[19]Zaria Gorvet, Why pain feels good, (BBC Future,1 October 2015) <https://www.bbc.com/future/article/20151001-why-pain-feels-good> accessed 17 October 2019
[20]Nafsika Athanassoulis, ‘The role of consent in sado-masoch*stic practices’ (2002) 8 Res Publica141.
[21]Kimberly Kessler Ferzan, “Clarifying Consent: Peter Westen's The Logic of Consent”, [2006] 2 Law and Philosophy25.
[22]Peter Westen, The Logic of Consent: the diversity and deceptiveness of consent as a defense to criminal conduct (Ashgate 2004).
[23]Kelly Egan, ‘Morality-based Legislation is Alive and Well: Why the law permits consent to body modification but no sadomasoch*stic sex’, [2007] 70 Albany Law Review1615, [1616].
[24]Rosemary Hunter, Claire McGlynn and Erika Rackley (eds) Feminist Judgments: From Theory to Practice(Hart Publishing 2010).
[25][2004] EWCA Crim 1103.
[26]Sharon Cowan, The Pain of Pleasure: Consent and the Criminalisation of Sado-masoch*stic ‘Assaults’ in Andrew Ashworth and Eric M. Clive Essays in Criminal Law in honour of Sir Gerald Gordon(Edinburgh Studies in Law) (English University Press 2010).
[27]Roger Pebody, ‘Life expectancy for people living with HIV’ (Aidsmap, May 2018) <http://www.aidsmap.com/about-hiv/life-expectancy-people-living-hiv> accessed 17 October 2019
[28]R v Dica [2004] EWCA Crim 1103.
[29]Natalie Connor, ‘A contemporary critique of R v Brown and the legal status of consensual sado-masochism’ The Student Journal of Law
[30]Natalie Connor, ‘A contemporary critique of R v Brown and the legal status of consensual sado-masochism’ The Student Journal of Law
[31]Sharon Cowan, The Pain of Pleasure: Consent and the Criminalisation of Sado-masoch*stic ‘Assaults’ in Andrew Ashworth and Eric M. Clive Essays in Criminal Law in honour of Sir Gerald Gordon(Edinburgh Studies in Law) (English University Press 2010).
[32]R v Brown[1993] UKHL 19.
[33]Ibid.
[34]Ibid.
[35]David Ormerod, Smith & HoganCriminal Law(12thedn, OUP 2008).
[36]R v Brown[1993] UKHL 19.
[37]Ibid.
[38]Ibid.
[39]Ibid.
[40]Ibid.
[41]Ibid.
[42]David Ormerod, Smith & HoganCriminal Law(12thedn, OUP 2008).
[43]Natalie Connor, ‘A contemporary critique of R v Brown and the legal status of consensual sado-masochism’ The Student Journal of Law
[44]Times, October 15, 1999.
[45]Ibid.
[46]R v Wilson[1996] Crim LR 573.
[47]Laskey, Jaggard and Brown v United Kingdom (1997) 24 E.H.R.R. 39.
