Introduction

Acts of sado-masochism (SM) in English law are considered as crimes and those who participate in them incur criminal liability. The intention behind the law is that those who gain pleasure from inflicting pain should be culpable irrespective of whether it was consensual and privately arranged. It is not considered unreasonable to place a ceiling on the level of injury that may be a result of consensual practice. The Offences against the Persons Act 1861 sets the ambit for the liability under section 47 (Assault occasioning actual bodily harm) and section 20 (malicious wounding and inflicting grievous bodily harm). There are reasons why the courts have been reluctant to remove culpability in the case of sado-masochism, despite increasing pressure by those who consider that it should be legally permitted to reflect the evolving value system of society.

The question of granting legality to sado-masochistic acts is influenced by concepts of morality, as well as considerations that include public policy and public interest which deal with the issue of whether consensual harm in sexual activity could be accepted if it is accompanied by violence. The courts have to consider as what extent the society can tolerate such activities which are based on self gratification, and if they infringe the principle not to cause harm. There is an issue of balancing sex or sexual pleasure against the commission of the act causing physical harm that may have involved grooming of those who were not adults at the time, and who may have been coerced into the pre arranged sex sessions. The act of SM is not exclusive to same sex participants and it has also involved those who are in relationships of cohabitation and living as man and wife.

There is pressure on the legislators and the courts to erase the boundary of crime that has been drawn in the case of SM. The judicial policy seems to be centred on the likelihood of permanent injury or maiming, a breach of the peace, or where the activities are likely to be injurious to the public that English law so restricts the legality of consent by reference to the level of harm and the circumstances in which it is inflicted.¹ The defence arguments in such cases tend to encompass breaches of the European Convention on Human Rights, namely the right to family and private life under Article 8, as well as the legalization of homosexual acts under the Sexual Offences Act 1967.

The critique of the current law is based around the discussion on the need of courts to be more lenient, if not, unconcerned about the agreements arrived at between adults which are for their mutual pleasure. The increasing license of society is being reflected in these arguments and, hence, there is an attitude that any sanction of the criminal law where an injury has occurred from sexual gratification is obsolete. The textual references that promote this argument are in the context "of a society which no longer openly condemns either heterosexual or homosexual sexual experimentation and the line between SM and ‘normal’ sex is increasingly blurred.² There is a suggestion that a ‘stable proportion of the population’ who would not identify themselves as sadomasochistic enjoy sexual acts that involve some level of ‘pain’.³ The argument for removing the criminal sanction has been framed by a strand of jurisprudence that presents legal precedent as relevant in public policy decision making. Sharon Cowan, in The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic ‘Assaults’ states "A contextualised analysis of the opportunity that participants have to freely agree to sexual activity is a more morally sound basis for the criminalisation of (sexual) assaults than a (hetero)normative assessment of ‘normal’ as opposed to ‘abnormal’ (perverted) sexual behaviour or relationships, and ‘normal’ as opposed to ‘abnormal’ levels of injury".⁴

Cowan draws on Andrea Beckmann’s study of SM participants whereby she attempts to ‘deconstruct the myths’ surrounding the activity, and emphasises how many of them viewed their behaviour as less risky than ‘regular’ sex. She takes as her example the response to HIV and AIDS, when both heterosexual and gay subjects considered practising SM as a method to avoid the risks of ‘normal’ penetrative intercourse. ⁵ These arguments have been furthered as having made SM more accepted by society at large and Beckmann regularly refers to elements of consensual SM as being part of the ‘subterranean values of society’. ⁶

This contention aims to provide a legal sanction to SM acts and is intended to elevate consent as the deciding factor in its commission. It is projected that the mens rea element of ‘assault’ usually requires a hostile animus which is clearly lacking in the context of consensual SM. This rationale has been supported by the ‘Feminist Judgments’ project which is a collaboration by a group of legally qualified scholars who have established a framework for the postulation of the ‘missing’ feminist rulings in key cases where there has been gender/sexual interaction or, providing a powerful example of the manner in which cases could have been decided differently in the courts. ⁷

In the leading case of Rv Brown [1993] 2 All ER 75 the accused who performed SM acts were convicted under sections 47(Assault occasioning actual bodily harm) and section 20 (malicious wounding and inflicting grievous bodily harm) of the OAPA 1861. Robin Mackenzie argues the acts were carried out by the accused as " a legitimate sexual preference of some proportion of the population’, particularly when involved in BDSM (bondage, and discipline, dominance and submission, sadism, masochism) communities ". ⁸ In furthering her critique, she argues a need to facilitate education about sado-masochistic practices, and therefore, the promotion of citizen’s health and well-being in the context of legalising these acts. ⁹

Mckenzie's criticism of the substantive ruling in Brown as reaching the wrong legal threshold for the qualifying level of harm is based on the estimate that it be determined by judicial creativity on a case by case basis.¹⁰ Her contention is that the SD activity should be allowed even if it causes physical harm unless it leads to GBH and death (where consent cannot be valid) and not if it has led only to the lesser levels of physical injury where consent can be valid. ¹¹ This reasoning has been developed by the feminists who view the development of SM as an opportunity for women to ‘step outside the traditional gendered socio-sexual scripts of passivity and victimhood, and away from subordination-laden protectionism’. ¹² They have couched their argument in terms of public policy and as the equalisation of the sexes by its promotion of a legal sex act by virtue of it being consensual.

The argument that is conspicuously lacking is the harm that SM causes and the gratification which is completely for selfish purposes. There needs to be a response to the one dimensional perspective that threatens to carry away with it the need for objective analysis and consideration for the well being of society. This paper will attempt to fill the dearth in literature on the erosion of morality and the increasing license towards those who not accept their behaviour can undermine the value system of society. The case law is examined that defines sado-masochism as a crime; degrees of knowledge, capacity and compulsion as factors capable of vitiating consent as developed by the courts, and the argument is made for its retention as a category of offences covered by the OAPA.

Consent to acts of self inflicted violence

English law has criminalised acts of violence when they have been self inflicted even where there has been consent that has been vitiated by the definition of offences framed under the Offences against the Persons Act 1861. There is a separation between those cases where consent is relevant to the non criminalisation of activities, and those instances which are unlawful in themselves, whether consented to or not.¹³ These are acts where the qualifying level and circumstances of harm has gradually brought the ‘exceptional categories’ into being, while SM acts by contrast are defined by the law as inherently ‘violent’ as opposed to ‘sexual’ and, thus the operation of consent in such a context is rendered irrelevant.

This principle has been upheld by the courts in the recent case law and there is a leading authority for it in the House of Lords decision that establishes a precedent that is binding in law. In R v Brown (See Above) there were acts of sadomasochism between a group of men who consensually and enthusiastically engaged in acts of violent sex against each other, particularly exposing their private parts (genitalia including testicles, buttocks, anus, nipples) by branding with a heated wire, using sharp tails and genital torture for sexual pleasure. It had gone on for ten years and they were discovered by the police randomly after which they were charged with sections 47(Assault occasioning actual bodily harm) and 20 (malicious wounding and inflicting grievous bodily harm) of the OAPA 1861.

The House of Lords held by a 3-2 majority ruling that the consent was not an acceptable defence in the commission of this crime. Lord Templeman ruled that sadomasochism is not just concerned with sex but also by "...violence which is inflicted for the indulgence of cruelty. The sadists draw pleasure from the infliction of pain, bloodletting and the smearing of human blood produced excitement’. ¹⁴ The implication was that what was really of concern here was not merely the perception of the gaining of sexual satisfaction from the infliction of pain but the level of pain and injury involved. His Lordship contended that the appellant’s acts were ‘degrading to body and mind’ and ‘developed with increasing barbarity’. ¹⁵

Lord Templeman rejected the defence argument under Article 8 of the European Convention of Human Rights that protects a Right to Privacy. His Lordship 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." ¹⁶

Lord Lowry concurred in this judgment and also continually stressed that he would not allow an exception for sado-masochistic activity that is not recognised in law. His Lordship held

'What may be "good reason" it is not necessary for us to decide. It is sufficient to say, so far as the instant case is concerned, that we agree with the trial judge that the satisfying of sado-masochistic libido does not come within the category of good reason nor can the injuries be described as merely transient or trifling.'.¹⁷

The two dissenting judges Lord Mustill and Lord Slynn would have allowed the appeals and quashed the convictions on the basis that their acts were not covered by the statutory regime under the OAPA. Lord Mustill held that the 1861 Act had been intended to apply to violence, not acts of sexuality (even sexual acts with violent aspects)." ¹⁸ His Lordship stated that the privacy provision of the ECHR supported his conclusion, but he did not rely upon it for reaching that result.¹⁹ He also noted that the that the defendants' actions did not warrant a prosecution and the policy issue of whether they should be made subject to prohibition was the remit of Parliament,²⁰ and he concurred with the majority view that the burden of proof in the case might be more onerous if the consensual SM activities had formed one of the limited group of activities exempted from the section. ²¹

Lord Slynn held that as a matter of current law, consent was generally a defence to assaults done in private which fell short of grievous bodily harm or death as in this case. ²² His Lordship added, that "[i]f Parliament considers that the behaviour revealed here should be made specifically criminal, then the Offences Against the Person Act 1861 or, perhaps more appropriately, the Sexual Offences Act 1967 can be amended specifically to define it". ²³ This would then have the effect of legalising SM as a legal homosexual act and its commission by consent even if it led to injury would no longer constitute a crime.

The House of Lords judgment expressed the view that where the activity under scrutiny was not in the public interest, any consent given would not accepted by the courts. It reflected the spirit of the Attorney General’s Reference (No.6 of 1980) where the Court of Appeal stated that, “it is not in the public interest that people should try to cause or should cause to each other actual bodily harm for no good reason”. ²⁴ His approach was based on the assumption that at the point where ABH results, the conduct is prima facie unlawful and, therefore, subject to prosecution. It implies that unless there is sufficient public interest or good reason to enable consent to amount to a defence, the conduct ultimately becomes criminal.

The academic criticism of the ruling in Brown is intense because it relied on both sections 20 and 47 of the OAPA 1861 in the same indictment and did not distinguish between the ambits of these provisions. This failed to separate in the view of its critics the infliction of grievous bodily harm and actual bodily harm. Dennis J. Baker states in a criticism of the Brown ruling that there needs to be a distinction between the levels of harm caused under each section and only the more serious harm should be penalised.

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 actual bodily harm. Those who regularly inflict actual bodily harm 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 actual bodily harm, but recover." ²⁵

The courts have distinguished Brown in subsequent case law where there had been violence in the consummation of a sex act. In R v Wilson(1996) 2 Cr App Rep 241 the defendant was charged with assaulting his wife and causing actual bodily harm contrary to section 47 of the OAPA 1861. He admitted to the police that he had used a hot knife to brand the capital letters ‘W’ on one, and A on the other, of his wife's buttocks and he was convicted on the basis of the ruling in Brown and he appealed against the judgment.

The Court of Appeal held that there was no factual comparison to be made between either the instant case or the facts of Brown due to the fact that the accused's wife had not only consented what was akin to a tattoo but had instigated it. ²⁶ There was no aggressive intent on the part of the appellant and he had not wished injury to his wife, in fixing the personal adornment.

Lord Russell ruled :

We are abundantly satisfied that there is in our judgment Brown is not authority for the proposition that consent is no defence to a charge under section 47 of the 1861 Act, in all circumstances where actual bodily harm is deliberately inflicted. It is to be observed that the question certified for their Lordships in Brown related only to a "sadomasochistic encounter". However, their Lordships recognised in the course of their speeches, that it is necessary that there must be exceptions to what is no more than a general proposition.²⁷

The facts in Brown were distinguished by the circumstances that existed in that case where there was a possibility of blood contamination, HIV transmission and serious injury. The act of the appellant in the present case if carried out with the consent of an adult, did not involve an offence even if that actual bodily harm was deliberately inflicted and it was the consensual activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation or prosecution. The effect of this ruling was that the Appeal Court viewed it as falling in the same category "as a tattoo", which is a lawful activity while accepting the defence of consent. ²⁸

There is also evident from this reasoning that the judgment in Brown is not authority for the proposition that consent is no defence to a charge under section 47 of the Offences Against the Person Act 1861 in all circumstances where actual bodily harm is deliberately inflicted. The principle in English law that an illegal contract cannot be enforced may also override any consensual agreement where injuries are a consequence of SM activity. In Sutton v Mishcon de Reya [2003] EWHC 3166, there was an agreement in which the Chancery Division had to deliberate about the lawfulness of a sadomasochistic agreement signed by a same sex couple, Mr Sutton and Mr Staal. The pair's deed of cohabitation purportedly bound them to a 'master and slave' relationship, with Sutton, a former Virgin Atlantic cabin crew and male escort as the master and Staal, a wealthy Swedish businessman designated as his slave.

The SM activity led to injury to Staal and he reported his 'master' to the police and when the matter came to trial for an assault Sutton pleaded the signed contract as giving rise to consent. The judge held that there was an assault under Section 47 because the consent was null and void due to the fact that English law does not recognise the institution of slavery. Hart J, held that a statement of trust represented "an attempt to express [the couple's] sexual relationship in property terms and the relationship "sprang from" the desire to give the sexual role play verisimilitude". This was "an attempt to reify an unlawful ideal" and was thus unenforceable.²⁹

The pressure has increased to overturn the judgment in R v Brown because of the removal of SM from the Diagnostic and Statistical Manual of Mental Disorders (DMS).³⁰ This has emboldened those who consider SM as a mainstream and normal activity and, therefore, acceptable even if there is violence accompanied in its commission. It needs an examination of the change in the boundaries of acceptable conduct that is deemed as normative behaviour which no longer needs the sanction of law.

Removal of the Victim complex

The definition of sadomasochism as a crime has been diminished by the academic discourse in medical science on the practice and conditions of sadism and masochism that it is no longer seen as an indication of mental disorder. The process began in 1994, the same year as the decision in Brown when the American Psychiatric Association modified and redefined “sadism” and “masochism” in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM IV). ³¹ This defined the consensual sadomasochistic behaviour as no longer a manifestation of sexual disorder. The DSM-IV Text Revision-TR (2000) states that sadomasochistic behaviour is a sexual and mental disorder if the patient “has acted on these urges with a non-consenting person” and if “the urges, sexual fantasies, or behaviors cause marked distress or interpersonal difficulty”. ³²

The Diagnostic and Statistical Manual of Mental Disorders (DSM V) accepted it as a ' paraphilia' which is a feeling of intense sexual arousal. This can be legally construed as a normal act carried out in the way of achieving sexual gratification or pleasure.³³ The demand for the greater toleration of the BDSM through its redefinition has been interpreted as part of social and legal discrimination against diverse forms of sexual conduct or inclinations and it has made the act carried out in a state of overdrive as the natural and probable outcome of achieving satisfaction whether it was performed by natural intercourse or in a homosexual interaction.

In the UK there have been changes in the law that facilitate the achievement of a high state of delirium in the attainment of sexual pleasure. This has been recognised in legislation where the effect of pornography has been deemed to be an aid to sexual performance and it has been manifested by the enactment of the Criminal Justice and Immigration Act 2008. The statute deals with the issue of sex as fantasy and it anticipates that an act may be stimulated by sexual imagery that leads to gratification.

Section 66 has legalised the defence of consent in the state of intense sexual activity, and it may exonerate a person if under (1) (a) person (“D”) is charged with an offence under section 63, and (b)the offence relates to an image that portrays an act or acts within paragraphs (a) to (c) (but none within paragraph (d)) of subsection (7) of that section. (2) It is a defence for D to prove— (a)that D directly participated in the act or any of the acts portrayed, and (b)that the act or acts did not involve the infliction of any non-consensual harm on any person. (3)For the purposes of this section harm inflicted on a person is “non-consensual” harm if— (a)the harm is of such a nature that the person cannot, in law, consent to it being inflicted on himself or herself; or (b)where the person can, in law, consent to it being so inflicted, the person does not in fact consent to it being so inflicted.³⁴

The enactment of this legislation has been accompanied by the availability of literature on the market that has brought SM acts into the public domain. There has been an industry that is growing in the attempt to locate a readership and an audience to project SM as a commodity in the enhancement and enjoyment of a sexual relationship. In 2011, the Fifty Shades of Grey was published which is a graphic novel that portrays a hetro sexual relationship with content that explicitly draws on erotic imagery involving bondage/discipline, dominance, and sadism/masochism (BDSM). ³⁵ The book became a bestseller and it has inspired a film that will illuminate the SM techniques not as an art house production but for the purposes of general public's viewing.

This book has already influenced those who want to emulate the practices described of the BDSM behaviour and there has been illustration of this in a case that involved self induced violence, sexual ecstasy and the issue of consent. In R v Lock 22 January (2013) at Ipswich Crown Court the case involved a couple who had re-enacted a scene depicted in Fifty Shades of Grey in which there was a consensual agreement by which the man tied the woman to the bedroom floor, and whipped her repeatedly with a rope causing her some bruising on the buttocks and neck. This was replicated in the real life fetishistic romance of Lock and Ms X which began over the internet and had within a year become drawn to the BDSM techniques of threesomes and bondage sessions. Ms X then took the step of entering into a 'slavery' agreement with Mr Lock as her 'master' and she branded herself with a tattoo marked 'the property of Steven Lock'.

Ms X then entered into a written 'contract' with Mr Lock granting him power over her until 12pm on 11 August 2012. She signed in the document that she was of "sound body and mind" which was affected as a binding agreement between the couple. Mr Lock fixed Ms X by her wrists to a bolt embedded on the floor, tied a string around her neck, and then beat her buttocks with the looped rope. There were fourteen bruising strikes that landed on Ms X's bottom that caused injury and which led her to report the incident as an assault upon her.

Mr Lock was arrested and charged under the OPA section 47 for an assault occasioning actual bodily harm. During his trial Mr Lock admitted to administering the allegedly offensive blows and it was apparent that he had at least recklessly caused actual bodily harm. He also admitted that it was the book "Fifty Shades of Grey ' from where he imbibed the concept of BSDM, but he also contended that there was no case to answer because there was consent on the part of the alleged 'victim'. The testimony of Ms X was that she "knew what was coming" but did not realise the defendant would use "full force" in the infliction of the violence.

However, Mr Lock was acquitted under Section 47 as this case was one where the participants had willingly taken part in the bondage and Ms X may be judged to have given her consent by the acceptance and the steps were carried out in accordance with the graphic details in the novel. ³⁶ The book was fictional but it had received popular acclaim and this could have swayed the judges to give their judgment to exonerate the defendant on grounds of the public interest and to not convict him of the charge under section 47 of the OPA.³⁷

Duty of the Courts as moral guardians

There is an apprehension that the increase in the volume of literary material celebrating SM will lead to more cases coming to court where the defence of consent will be enacted. It will be set against the injury caused by the activity in question that had been agreed upon by the consenting adults and the harm caused to the victim. The courts would then have to uphold precedence or sanction the assault within the ambit of sections 20 and 47 of the OPA which will be a balancing exercise that is at present governed by the leading case of R v Brown.

However, this approach that is based on the facts of each case does not accord with the protection of 'health' and morals that are traditionally a bedrock of English law. In the Enforcement of Morals (1959) Lord Devlin affirmed that morals are a central tenet of the criminal law.

Thus, if the criminal law were to be reformed so as to eliminate from it everything that was not designed to preserve order and decency or to protect citizens (including the protection of youth from corruption), it would overturn a fundamental principle. It would also end a number of specific crimes. Euthanasia or the killing of another at his own request, suicide, attempted suicide and suicide pacts, dueling, abortion, incest between brother and sister, are all acts which can be done in private and without offence to others and need not involve the corruption or exploitation of others. ³⁸

Lord Devlin was categorical in assuming law and morality were inseparable and underlined that by stating : " I think it is clear that the criminal law as we know is based upon moral principle. In a number of crimes its function is simply to enforce a moral principle and nothing else. The law, both criminal and civil, claims to be able to speak about morality and immorality generally".³⁹ The concept of private morality under this formulation is part of the consideration in criminal law and it will not allow any private agreement to be outside its jurisdiction. This expressly rejects the personal morality argument where a person can carry on an activity simply on account of the fact that it does not effect public morality. ⁴⁰

This appears to contradict the theories of individual liberty devised in the 19 th century which emanated with John Stuart Mill's harm principle set out in On Liberty : 'thou shalt do no harm to others... unless they eagerly want you to'.⁴¹ It assumes the principle exists that each individual has the right to act as he wants, so long as these actions do not harm others if the action is self-determining and it affects the person undertaking the action than society has no right to intervene even if it feels the actor is harming himself. ⁴² However, even Mill's argues that individuals are prevented from doing lasting, serious harm to themselves or their property by the harm principle. This is because no-one exists in isolation, harm done to oneself also harms others, and destroying property deprives the community as well as oneself.⁴³ He is also against the persuasive power of fashionable public opinion and shows concern for individual self-development:

‘Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling, against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them…’ ⁴⁴

Mill's drew a distinction between self and other- regarding acts which would come under the sanction of the criminal law if the intention was such that it would contaminate others. This meant "that the mischief which a person does to himself may seriously affect, both through their sympathies and their interests, those nearly connected with him and, in a minor degree, society at large".’ It implies that when harm that one does to himself has detrimental effects on others, or on society at large then it must be taken out of the self-regarding class and considered an affront to public morals, so that it does not render legitimate the legal prohibition.

This is an acknowledgment that "Whenever there is a definite damage, or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty and placed in that of morality or law ". ⁴⁵ Further development of the distinction would cause Mill to frame ‘harm to others’ principle within the notions of interests, rights, and duties which will be defined on the basis of recogised legal rights and obligations. ⁴⁶ This has preserved Mill’s articulated theory of legal rights by its association with his Humboldtian vision of human self- development that he perceived in an individual who was a conscious being and who could distinguish the utility of his acts.⁴⁷

In The Collapse of the Harm Principle Redux: On Same-Sex Marriage, the Supreme Court’s Opinion in United States v. Windsor, John Stuart Mill’s essay On Liberty (1859), and H.L.A. Hart’s Modern Harm Principle Bernard E. Harcourt affirms that the harm principle as originally expounded by Mill does not serve as a limiting principle on the legal enforcement of morality.⁴⁸ He contends that there was an important distinction based on the construction of Mill's theory which was an intricate platform about the protection of certain express and customary legal rights in order to further an ethical vision of individualism, diversity, creativity, and human self-development. The complete theory had to be distinguished from the statement of a simple harm principle focused on the basic notion of ‘harm to others’ because it encapsulated "a utilitarian approach".⁴⁹

This is a refutation of the harm principle developed in the 20 th Century by the liberal legal theorists such as H.L.A. Hart, Joel Feinberg and Herbert Wechsler who drew on Mill’s concept of a simple "harm to others’ to advance a modern interpretation of the harm principle".⁵⁰ There was a debate with legal moralists such as Lord Devlin, over the enforcement of morals and it was triggered by the Report of the Committee of Homosexual Offences and Prostitution (‘The Wolfenden Committee’) 1957 that examined the purpose of the criminal law in relation to the sexual choices of others.

It affirmed that the criminal law was designed to ‘…preserve public order and decency, to protect the citizen from what is offensive and injurious, and to provide sufficient safeguards against exploitation and corruption of others…It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any pattern of behaviour, further than is necessary to carry out the purposes we have outlined.’ ⁵¹

This resulted in Hart’s notion of the harm principle that focused on the basic notion of ‘harm to others’ and ‘human suffering,’ in an unregulated sexual activity. His maxim was the "[l]aws enforcing sexual morality create misery of quite a special degree… it is one thing to disapprove of and criticise… but another to impose legal liability". ⁵² He set out his argument in the context of values by stating : “The unimpeded exercise by individuals of free choice may be held to be a value in itself with which it is prima facie wrong to interfere; or it may be thought valuable because it enables individuals to experiment – even with living – and to discover things valuable both to themselves and others”. ⁵³

This is a clear repudiation that there is a value of society that binds individual acts to the general betterment of society. The issue of legalising SM is essentially about reaching a public policy decision that differentiates between which protections are more compelling than others and arguments that are about reducing social harms. The principle does not perform a limiting function and the decision whether to legally enforce morality becomes, in essence, the prevention against self interest which is based on the elaborate theory of interests and legal rights that Mills defined. It is within this construction of a framework of collective rights that the courts can continue the task of acting as the moral guardians of society.

The purpose of the law as a moral guardian has recently been supported by Sir Rabinder Singh, QC a High Court judge who stated in a university lecture that many legal rules were intended to “give effect to certain basic values of a society”, and this provided “much of the moral force which is needed to support positive rules of law, in particular the rules of criminal law”. ⁵⁴ He gave the example of "the Ten Commandments” which were " rules that reflected fundamental values which might have derived from religious traditions but were needed even in a wholly secular society". There was an analogy with civil law in “the principle of good faith in the law of contract; the law of equity's historical foundation was based upon principles of conscience; and in tort the “duty of care” was owed to one’s fellow man as a “neighbour” and these were instances of courts reasoning that depended on moral concepts.

Sir Rabinder's main focus was that even though the secular courts now disavow any duty or intention to enforce morals, the law which they apply is still based on and reflects a value system. He acknowledged that although a judge was not entitled to impose on society his own subjective views of what was morally correct there were many instances when simply applying the text was not enough to arrive to a judgment that reflected the “interests of justice”. This also included other examples such as a “contrary to public policy”, “unreasonableness” and acting “in the public interest”.

The judge had to determine these questions by applying values and this could be done by using the conventional techniques of legal reasoning and by reference to the “fundamental values" and the rationale was that even if the law did not enforce morals it was "not immoral or even amoral" . It is based on values, which are part of its foundations, but inherent in that concept was that those values that it was "not necessarily right to impose as a subjective code of private or sexual morality on an individual.”

Public interest and the law

The House of Lords decision in R v Brown confirmed that consensual SM acts did not provide a 'good reason' for causing bodily harm and consent has not been a defence for dominators and dominatrixes to ABH or GBH. Their Lordships upheld the homosexual appellants' convictions for these offences under the OAPA despite the fact that the victims had willingly consented to stinging nettles being rubbed on their nipples; their testicles being held with spiked gloves; their scrotums being sandpapered; and their prepuces being nailed to boards of wood.

The appellants in Brown had eventually taken their case to Strasbourg where in Laskey, Jaggard and Brown v United Kingdom (1997) 24 E.H.R.R. 39, the European Court of Human Rights rejected their appeal that was based on the breach of the Right to Privacy under Article 8. The Court had to decide if there had been an infringement of this right by the national authorities under Article 8 para. 2 by determining if the prosecution and conviction was necessary in a democratic society for the protection of health and morals within the meaning of this section.

The judgment affirmed that the interference of this Right to Privacy was pursued in the legitimate aim of the "protection of health or morals"(parah 35) because the applicants’ activities were of a " significant nature and degree", and of an "extreme character"; it was within the States "margin of appreciation in order to protect its citizens from real risk of serious physical harm or injury". (parah 41) and it was within "the prerogative of the State on moral grounds to seek to deter acts of the kind in question"(para 51).

There is a need to enquire if the defendants in Brown will be acquitted now if the case came before a jury. In R v Walsh 12 August (2012) at Kingston Crown Court Mr Walsh, a barrister and former aide to mayor of London Boris Johnson was accused of possession of extreme pornographic images of fisting and 'urethral sounding'. The pictures were taken at a private sex party involving willing and consenting adults. Walsh was acquitted at Kingston Crown Court after his counsel argued that the images were not 'extreme' because the acts portrayed were relatively safe and not uncommon within the gay community; and that they were not 'pornographic' pictures but personal records of a private event.

The acquittal of the defendant in this case suggests that they may not be convicted if the objections were simply based on their purported homosexual conduct of their actions and they can provide a defence of the injury not being severe or intentionally inflicted. In striking an appropriate balance between personal autonomy and issues of public welfare, the courts have not set out an underlying principle but there is a distinction between certain types of activity and their intended and/or anticipated outcome. The distinction between injury that is caused intentionally and harm that has been caused unintentionally seems to be the only definitive principle that has emerged in the decided cases upon which the public policy grounds of judges can be inferred for basing their reasoning.

W Wilson states in Criminal Law : Theory and Practice as follows:

“[I]t appears that the public interest test varies according to whether the injury consented to is inflicted intentionally or unintentionally. If it is inflicted intentionally, the Attorney-General’s Reference, supported by Brown, tells us that ‘good reasons’ in support of the activity which produced the injury must be adduced — a challenging burden. If it is inflicted unintentionally, R v Slingsby, R v Meachen and R v Dica indicate that the public interest test requires no good reasons in support of the activity. Rather, it is satisfied as long as no weighty public policy reasons count against the activity — a less challenging burden.”⁵⁵

The difference in the approach of the courts in dealing with the facts in each case represents a dilemma and a confused position in law as to what is deemed in the public interest. The distinction between consensual violence which is legal for being in the public interest and that which is illegal because it is arguably against centres on policy, which influences the decision to prosecute any suspected criminal activity. This is dependent upon the prosecution being ‘in the public interest’, as well as there being sufficient evidence that there is a reasonable prospect of securing a conviction. However, there has been an increase in the legal willingness to respect autonomy regarding physical acts over a person’s own body. The sexual freedoms concerning an individual's right over their body have come to the fore in recent years, in which the focus has shifted away from sexual paternalism towards a liberal view of sexuality as a private matter. There have been laws granting legal status to homosexuality, transgender sex and cross gender acculturation. ⁵⁶

The criminal law is increasingly reluctant to regulate the private, sexual activities of consenting adults, where those activities do not adversely affect parties other than the participants. Where there has been violence as in R v Brown as a consequence of SM conduct it will be a crime if it leads to ABH or GBH as a result of the conduct of the defendants. It will not matter that there has been consent between the parties involved in the commission of the act because it is not possible to separate the effectiveness of consent in criminal law from the making of a value judgment about the activity concerned, but argues, recognising that inevitability does not render the proposed approach unworkable. ⁵⁷

Kell observes in 'Social Disutility and Consent' that, in deciding "whether or not allowing consent to operate as a defence for intentionally inflicted injury, English Criminal law prioritises the social utility of permitting the conduct, over the reasons why prosecution may not be appropriate".⁵⁸ The defendant's obligation is to disclose why the conduct was engaged to satisfy the binding ‘social value’ requirement, thereby exposing him to defend his conduct publicly. This confirms the presumption in favour of prosecution, meaning that where behaviour is prima facie illegal, it must be in the public interest for an indictment to be served.⁵⁹

The majority judgments in Brown have led to its detractors to argue that the defence to consent in SM is based on whether the putative victim’s consent will be sufficient to relieve criminal liability in establishing whether they were guilty of the offence. Lord Jauncey, one of the judges in that case argued that this was an essential feature in attributing criminality to the conduct of the defendant. ⁶⁰ This was an issue which had become the focus of judicial scrutiny in the preceding case law where consent was a factor after the defendant was accused of occasioning actual bodily harm.⁶¹

While the judicial perspective that consent can operate as a defence to conduct which would otherwise be unlawful, their Lordships altered the approach in Brown and moved from one in which a lack of consent is an element of the offence itself. ⁶² This is significant, as in doing so the presumption in favour of an act’s legality where it has been engaged in consensually is reversed. Instead, it is replaced with an approach in which the starting point is to declare the conduct prima facie unlawful, and subsequently determine whether there are good reasons to refrain from criminalising it.

The majority approach in Brown almost directly reflects the approach taken by the Court of Appeal in Attorney General’s Reference (No 6 of 1980) in which Lord Lane effectively operated to introduce a test of ‘public interest’ and ‘good reason’ in which he rejected that lack of consent as an element of the offence. ⁶³ His approach was based on the assumption that at the point where ABH results, the conduct is prima facie unlawful and, therefore, subject to prosecution. It implies that unless there is sufficient public interest or good reason to enable consent to amount to a defence, the conduct ultimately becomes criminal.

The majority of the House of Lords, in accepting Lord Lane’s approach in this case confirmed that the presumption of illegality is at the core of the issue. The moral standards of the judiciary are the ultimate factor in deciding whether or not to exempt SM injury from criminalisation. Certainly, this is evident from the fact that their Lordships decision was not unanimous, and that the judgments of the majority and minority prioritise different factors in assessing how the public interest is best served in public law discourse.

In Brown the majority of House of Lords had stipulated that it was necessary and in the public interest not to sanction SM violence, which became a recurring theme in the judgments of Lord Templeman, Lord Jauncey and Lord Lowry. ⁶⁴ Their Lordships considered both the hypothetical consequences which could have resulted in the case ,⁶⁵ and additionally, how a judgment that the infliction of such violence did not amount to a criminal offence may lead towards undermining society’s moral code, thus corrupting the vulnerable members of the public.⁶⁶ However, the majority judgments in Brown were able to offer support for the proposition that the purpose of the OPA was to protect against aggression and brutality, by categorising sado- masochistic behaviour as violent rather than sexual. ⁶⁷ The inextricable link between sex and violence in the case of SM has resulted in a legal grey area, in which the minority judgments of Lords Mustill and Slynn inferred that ‘the law of private sexual relations, if about anything at all’ felt the OAPA was designed to combat harms ‘of a kind far removed from the appellant’s behaviour’.⁶⁸

This reveals a lack of a unitary approach which undermines the case as precedent and strengthens its critics for reform on the basis of privacy, autonomy and the parameters of legally valid consent. The Court of Appeal in Wilson favoured the minority opinion in Brown, by beginning with a presumption of legality and subsequently examined whether it was necessary in the public interest, to extend the criminal law to the appellant’s activities. It is important to note that such an approach cannot be reconciled with majority's reasoning in Brown.

Lord Jauncey and Lord Lowry in Brown focused on the issue of where to draw the line between consensual conduct which was legal and which was criminal, highlighting the fact that criminal liability arises for the common law offence of assault, and the offence of assault occasioning ABH under section 47 OAPA. However, it is clear that the conduct in question in Wilson was capable of being an offence under section 47 but the Court of Appeal placed the conduct on the other side of the divide by exonerating the defendant. The two cases may be distinguished by the fact that the judges in Wilson were reluctant to regulate the private conduct of married adults where criminal sanction was unnecessary. The majority of House of Lords in Brown viewed it as their role to protect society against what they viewed morally repugnant harms. This is evident in Lord Templeman’s conclusion that, ‘pleasure derived from the infliction of pain is an evil thing and 'cruelty is uncivilised’ and accordingly, ‘society is entitled and bound to protect itself against a cult of violence’.⁶⁹

It is obvious that the judiciary have considerable discretion in determining which conduct merits criminal sanction, and the moral standards of the judges involved often influence their decisions. Paul Roberts argues in Consent in the Criminal Law as follows :

The complicated ratio of Brown stands leaving the lower courts with two options which is to adhere to an approach of criminalising behaviour which may not merit legal sanction; or manipulate Brown to achieve a fair result, at the expense of legal certainty and consistency. That the lower courts even have to make such a decision shows the obvious need for reform and clarification of this area of law. Ultimately, the presumption that injurious yet consensual sexual conduct is illegal unless the judiciary decide otherwise is anomalous, in light of the judicial willingness to tolerate the same level of injury where it occurs in other contexts. ⁷⁰

The Law Commission Report into Consent in Criminal Law supports the reasoning of the judiciary in Brown and left it to the policy makers after defining the ambit of the law under the statute. ⁷¹ There was no clear definition for any expressions of a value to be protected and there appeared to be a separation between any moral considerations and any realistic understanding of society's desire for pleasure as expressed in the SM activity. It recommended the defence of consent "should be extended to the consequences of sado-masochistic encounters could only be decided by consideration of policy and public interest ". (10.16)

This has not led to any Act of Parliament that has attempted to over rule Brown and it still stands as current law. There has been no legislation that has been framed to under pin public policy and bring SM with the realm of activities where the resulting injury is deemed as part of a voluntary activity. It is still within the context of public policy that the judges to interpret the law based upon the arguments of what they consider to be in the public interest and that means taking into account their traditional role as the moral guardians.

Conclusion

The courts are at present powerless to stop the public pressure building up to legalise conduct that amounts to SM or BDSM behaviour. This is because as the dissenting judgments in Brown showed the OAPA 1861 was intended to defend against harms that were remote from those that were the consequence of sado masochistic behaviour. It was a view that was based on the reasoning that consent was not relevant where the offence was such that it repudiated the accepted basis of society's toleration and was against the health and safety of the general public. It shows a strong element of a policy based approach by the judges that they were not prepared to exonerate the defendants who had infringed the section 20 and 47 of the OAPA in the course of their conduct.

The critique of the ruling in Brown has come from the Feminist Jurists who have cited this case as one of several that is based on old fashioned principles which reinforce a value system in society that leads to patriarchy. This case for them is a reflection of control over the body of individuals by the society and comes in a category of judgments where the power should be left under the persons own choice and discretion as to how to regulate its activity. They have adopted a strand of jurisprudence that aims to reverse the judgment of the courts by placing undue pressure on courts to treat values as relative in the progression of society.

However, this reasoning is based on selfish motives and is narrow minded in its approach, because it does not consider the moral principles and strong belief system in society. The moral argument requires a clearer understanding of the harm principle and it is argued that individuals have a responsibility to conduct themselves in the interests of preserving the social fabric of society. The harm principle which Mills introduced as the guide for regulating public liberty is in danger of being misquoted if it not set in the context of the society and well being and development of individuals. The notion that he development was not a license for individual liberty but a Humboldian vision of human progress in an enlightened environment and was not meant for gratification.

The unwillingness of the courts to enact a moral argument and to couch their reasoning in terms of public policy means that they can be swayed by opinion. This could be to the detriment of the majority of the society and its existing bounds of acceptability and the need is for the concepts advocated by Lord Devlin, and which can also be discerned from closer reading of Mill's harm principle, to be interpreted by the judges acting as the guardians of morality.

The presumption of legality must not be extended to consensual sexual activity which results in injury that leads to an offence under the OAPA. The comparison with sport does not exist where the participants enter into a competition which is regulated by professional organisations and which have codes of conduct as to the level of physical contact. The entrants have also to be fit in body and mind and expected to perform within the rules which provides a good reason why their activities are not criminalised in the event of injury. There is also no danger of the vulnerable being the victims of an enterprise where some of the participant are minors.

The uncertainty in the law should be removed and a clear perspective should be formulated by the courts which is an affirmation of why certain activities should be illegal. The public interest factor must outweigh any other consideration and it must also override consent where the injury has been self inflicted. The lack of consistency in the decision making is reflected in the judgments of the courts after Brown that have led to the exoneration of the defendants if the acts were part of an existing pattern or conduct in the community. This allows for a disparity in the manner in which rulings are arrived at and this reflects a subjective approach of the courts.

If the law cannot deal with new or novel cases, let alone hard ones, or those that arouse moral indignation then it is time to reflect what society tolerates, how it reaches that decision and who is representative of the society and, therefore, in the position to consecrate the legal principles. In the attempt to normalise SM conduct by repudiating Brown the intention is to provide a license for all kinds of sexual conduct that is accompanied by violence as long as it is done privately and with consent. This should not be allowed to cloud the vision of the judges who should continue to give a general direction to society to raise the consciousness of good citizens