Authored By: Nina Angela Fernando
Middlesex University Dubai
House of Lords
Lord Templeman, Lord Jauncey, Lord Lowry (majority); Lord Mustill, Lord Slynn (dissenting)
11 March 1993
Assault – Assault occasioning actual bodily harm – Consent – Criminal law – Defence – Offences against the Person Act 1861 – Sadomasochistic acts
Appellants: Brown and others
Respondents: The Crown
Facts
The appellants in R v Brown were a group of five adult men who engaged in a series of severe sadomasochistic sexual activities for over a decade. The activities involved receiving sexual pleasure from giving and receiving pain. The passive victim consented to each act that was committed, including the deliberate infliction of genital torture, branding, cuts, bruising, and other acts of actual bodily harm. The men did not intend to cause serious injury or death, did not suffer any permanent injury, and sought no medical attention. All activities were committed privately, albeit video recorded and distributed among the group, in several locations without causing any disruption to public order. The case arose because the police discovered the video recordings through an unrelated investigation. Despite the consensual nature of this case, the five appellants were prosecuted and charged with unlawful and malicious wounding and assault occasioning actual bodily harm, contrary to section 20 and section 47 of the Offences against the Person Act 1861. The question on appeal was whether prosecution had to prove the victims’ lack of consent. The appellants argued against the conviction, given that they had provided consent to the sadomasochistic activities. However, the trial judge ruled that consent was not a sufficient defence for charges on actual bodily harm or the deliberate infliction of actual bodily harm. All appellants then pleaded guilty and were sentenced to imprisonment. Finally, the Court of Appeal upheld their convictions on a point of public importance.
Legal Issues
- Whether the prosecution must prove lack of consent from the victims under section 20 and section 47 of the Offences against the Person Act 1861, in cases involving sadomasochistic sexual activities.
- Whether an individual can lawfully consent to the deliberate infliction of actual bodily harm for the purpose of private sexual gratification.
Arguments
The Counsel for appellants argued that consent is a sufficient defence because every individual has autonomy over his own body, particularly in private sexual matters. Through their reliance on case law, they stated that their private and consensual sadomasochistic activities should not constitute criminal liability. For instance, in R v Wilson [1996] 2 Cr App R 241 (CA), a wife was consensually branded by his husband for sexual gratification. The court held that the activity was comparable to tattooing, therefore, it was lawful. Furthermore, in R v Jones [1996] 2 Cr App R 241 (CA), schoolboys engaged in rough sexual play that caused actual bodily harm. The court held that consent was a valid defence with consideration to the social utility and context of the activity. In these cases, the courts have accepted consent as a sufficient defence to the infliction of actual bodily harm in the course of lawful activities. Secondly, the appellants argued that consent should only be extended to actual bodily harm under section 47 of the Act and not to the infliction of grievous bodily harm under section 20 of the Act. Considering the lack of grievous bodily harm in the activities committed, they argued that the convictions under section 20 were inappropriate and the scope of lawful consent had been misapplied. Ultimately, the appellants submitted that the sexual appetites of sadomasochists and sadists can only be satisfied through the infliction of bodily harm, thereby deeming the activities lawful.
Alternatively, the Counsel for the Crown argued that consent is not a sufficient defence to charges under sections 20 and 47 of the Offences against the Person Act 1861 where actual bodily harm was deliberately inflicted. The deliberate infliction of pain, even when private and consensual, remains contrary to public policy and the scope of criminal law. The Crown highlighted that consent is recognised where the acts serve broad social or medical purposes, such as tattooing in R v Wilson [1996] 2 Cr App R 241, organised sport in R v Barnes [2005] 1 WLR 910, and surgery in R v Donovan [1934] 2 KB 498. However, the acts committed by the appellants lacked such justification and were both degrading and dangerous, inflicting physical and psychological harm to all individuals involved. Furthermore, recognising consent as a sufficient defence would set a dangerous precedent that would normalise violence and ultimately undermine the integrity of criminal law. The state had a legitimate interest in protecting society from the dangers posed by such practices, thereby deeming the activities unlawful.
Judgement
The House of Lords, by a majority of three to two, dismissed the appeal and upheld the convictions. The majority, Lords Templeman, Jauncey, and Lowry, held that consent was not a sufficient defence to charges under sections 20 and 47 of the Offences against the Person Act 1861 where actual bodily harm was deliberately inflicted during sadomasochistic activities. Alternatively, the dissenting judges, Lord Mustill and Lord Slynn, emphasised the importance of individual autonomy and privacy. They argued that the courts should not intervene in private consensual activities of adults where no grievous bodily harm was inflicted and no public disruption was caused.
Legal Reasoning
The Majority
Lord Templeman stated that society has the right to protect itself against a cult of violence, emphasising that the protection of society must prevail over individual autonomy. Firstly, because sadomasochists cannot foresee the degree of harm they inflict, it is impossible for the jury to satisfactorily apply the differences between actual bodily harm and grievous bodily harm to determine conviction. Secondly, Lord Templeman stated that the idea of possessing the right to do whatsoever you want with your body is too simplistic, given that the appellants were not only harming themselves but also other people. The law must continue to impose limits where an individual causes harm to another, even with consent. Additionally, there is a lack of evidence that supports the idea that sadomasochists can only satisfy their sexual desire through the infliction of bodily harm. Finally, the appellants were not exercising their right to private and family under Article 8 of the European Convention of Human Rights because their activities did not constitute any benefit. Ultimately, Lord Templeman dismissed the appeals. Similarly, Lord Jauncey stated that acts of violence cannot be justified solely because they are private and do not disrupt public order. Lord Lowry concurred, adding that consensual sadomasochistic acts involving intentional infliction of pain fall within the the activities that the Offences Against the Person Act 1861 are meant to prevent. Allowing such harmful acts, driven by depraved sexual desire, would risk normalising cruelty under the guise of consent. Lord Lowry’s overall judgement reaffirmed the law’s role in protecting society by preventing such dangerous activities.
The Dissenting
Lord Mustill emphasised individual autonomy and argued against the question of whether the appellant’s consent was acceptable or correct in a moral sense, but whether the charges under the Offences against the Person Act 1861 were proper. He emphasised that the state should interfere in private sexual conduct only where necessary to protect the public, rather than to enforce certain moral standards. Moral disapproval alone is insufficient to render the appellants’ sadomasochistic acts criminal under the Act. Claims on the mortality of the appellants’ actions and potential health risks such as AIDS transmission or corruption of youth are not for anybody but Parliament to address. As the acts were consensual, private, and posed no social risk, he allowed the appeals. Similarly, Lord Slynn concurred that the law should respect individual autonomy and their private sexual conduct. As the law stands, adults who consent to private sexual acts that do not result in grievous bodily harm should not be held criminally liable to the 1861 Act. He reaffirmed that it is simply a matter for Parliament, not the Courts, to establish new criminal offences based on moral considerations. If the state continues to unnecessarily intervene in such matters, it would certainly constitute an unlawful invasion of privacy. Therefore, he allowed the appeals.
Conclusion
R v Brown established that consent is not a sufficient defence to charges under sections 20 and 47 of the Offences against the Person Act 1861 where actual bodily harm is deliberately inflicted in sexual sadomasochistic activities. The ruling highlighted the decision to uphold the appellant’s convictions and protect society from harm, even at the expense of restricting personal autonomy in private life. The majority grounded the dismissal of appeals on the grounds of public policy and morality. Alternatively, the dissenting judges allowed the appeals and highlighted the continued tension between state intervention and individual freedom. Brown continues to be a landmark case in criminal law and debate on the boundaries of consent and the state regulation of private conduct.
