R v Brown (1993) [1993] 2 All ER 75; [1994] 1 AC 212; [1993] UKHL 19

R v Brown (1993)

[1993] 2 All ER 75; [1994] 1 AC 212; [1993] UKHL 19

House of Lords

Lord Templeman, Lord Jauncey, Lord Lowry (majority); Lord Mustill, Lord Slynn (dissenting)

11 March 1993

Criminal law – Assault – Assault occasioning actual bodily harm – Consent – Defence – Sadomasochistic acts – Offences against the Person Act 1861

Appellants: Brown and others

Respondents: The Crown

Facts

The appellants in R v Brown was a group of five adult men who, over the course of over a decade, engaged in a series of severe sadomasochistic sexual activities. The activities involved receiving sexual pleasure from giving and receiving pain where the passive victim consented to each act that was committed, such as 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, in several locations and without causing any disruption to public order. The case arose on the discovery of video recordings of the sadomasochistic activities, which were distributed among the group and found by the police 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 from 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 contended 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 social utility and context of the activity. The courts have evidently 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. Finally, the appellants asserted 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 in private and with consent, is contrary to public policy and the scope of criminal law. The Crown highlighted that consent is recognised in contexts demonstrated in case law that 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. The acts committed by the appellants lacked such justification and were deemed degrading and dangerous, causing physical and psychological harm to all the 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 evidently 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 place limits on when an individual causes harm to another, even with consent. Additionally, there is a lack of evidence that support 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 provide any benefit. Ultimately, he dismissed the appeals. Additionally, Lord Jauncey stated that acts of violence cannot be tolerated purely because they are private and do not cause disruption of public order. Lord Lowry concurred, adding that consensual sadomasochistic acts which involve intentional infliction of pain are exactly the activities that the 1861 Act are meant to prevent. Allowing such harmful acts, driven by depraved sexual desire, would normalise cruelty and essentially provide it with legal permission. Lord Lowry’s overall judgement reinstated the law’s role in protecting society through 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 stated that the state should interfere in private sexual conduct only when it is necessary to protect the public, not to enforce certain moral standards. Disapproval of the appellant’s sadomasochistic acts does not automatically justify criminal liability 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 any body 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 reinstated that it is simply a matter for Parliament, not the Courts, to establish new criminal offences based on moral considerations. If the state unnecessarily intervened in such matters, as occurred in this case, it would certainly constitute an unlawful invasion of privacy. Therefore, he allowed the appeals.

Conclusion

R v Brown determined 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 judiciary’s decision in upholding the appellant’s convictions to continue protecting 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. The dissenting judges allowed the appeals, highlighting the continued tension between state intervention and individual freedom. Brown continues to be a landmark case within criminal law and human rights debates on the boundaries of consent and the state regulation of private conduct.