R v Brown

R v Brown
Court House of Lords
Decided 11 March 1993
Citation(s) [1994] 1 AC 212; [1993] 2 WLR 556; [1993] 2 All ER 75; (1993) 97 Cr App R 44; (1993) 157 JP 337; (1993) 157 JPN 233; (1993) 143 NLJ 399
Case history
Prior action(s) None
Subsequent action(s) Laskey, Jaggard and Brown v. the United Kingdom
Court membership
Judge(s) sitting Lord Templeman, Lord Jauncey, Lord Lowry, Lord Mustill, and Lord Slynn
Keywords
Assault, consent

R v Brown [1994] 1 AC 212[1] is a House of Lords judgment in which a group of men were convicted for their involvement in consensual sadomasochistic sexual acts over a 10-year period. They were convicted of "unlawful and malicious wounding" and "assault occasioning actual bodily harm" contrary to sections 20 and 47 of the Offences against the Person Act 1861. The key issue facing the Court was whether consent was a valid defence to assault in these circumstances, to which the Court answered in the negative.

The case is colloquially known as the Spanner case, named after Operation Spanner, the investigation which led to it.

Facts

Five of the appellants of the case engaged in sadomasochistic sexual acts, consenting to the harm which they received. While none of these individuals complained against any of the acts in which they were involved, they were uncovered by an unrelated police investigation.[2] Upon conviction, the appellants argued that they could not be convicted under the Offences against the Person Act 1861, as they had in all instances consented to the acts they engaged in.

Judgment

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 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, Lords Mustill and Slynn dissenting — answered this in the negative, holding that consent could not be a defence to offences under sections 20 and 47 of the Offences against the Person Act 1861.

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.

In Lord Mustill's view, the degree of consent involved could negate the 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]

Criticism

There has been much academic criticism of the judgment's overtones. Baker (Dennis J. Baker, Glanville Williams Textbook of Criminal Law, (London: Sweet & Maxwell, 2012) at pp. 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 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."[5] Marianne Giles calls the judgment "paternalism of an unelected, unrepresentative group who use but fail to acknowledge that power".[6]

More recently, Professor Dennis J. Baker has 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."[7]

Social Impact

There has been much social stigma surrounding this case considering the contrasting case of R v Wilson. It has been said by some academics that the verdict in this case was bias due to views of heteronormativity. However, in the later case of R v Emmett [1999] All ER (D) 641 (CA), the Court of Appeal held that the same rules apply to heterosexual participants in sado-masochistic sex acts.[8]

Citing R v Brown, law professors Fox & Thomson (2005) argue against non-therapeutic circumcision of male children.[9]

See also

References

  1. ↑ R v Brown [1993] UKHL 19, 1 AC 212 (11 March 1993), House of Lords (UK)
  2. ↑ [1994] 1 AC 212, at 238
  3. ↑ [1994] 1 AC 212, at 215
  4. ↑ "Lord Mustill – Obituary". The Daily Telegraph. 30 April 2015. p. 33.
  5. ↑ Cr. Dennis J. Baker, The Moral Limits of Consent as a Defense in the Criminal Law (April 28, 2012). 12 New Crim. L. Rev. 93 2009. Available at SSRN: http://ssrn.com/abstract=1973331.
  6. ↑ Understanding Criminal Law – Rodger Geary – Google Books. Books.google.co.uk. 2012-08-21. ISBN 978-1-84314-482-3. Retrieved 2012-11-21.
  7. ↑ Baker, Dennis J. "Should Unnecessary Harmful Nontherapeutic Cosmetic Surgery Be Criminalized?" New Criminal Law Review, Vol. 17, Number 4, pps 587–630, 10 October 2014. Available at SSRN: http://ssrn.com/abstract=2508333
  8. ↑ http://lexisweb.co.uk/cases/1999/june/r-v-emmett
  9. ↑ Fox M, Thomson M (2005). "A covenant with the status quo? Male circumcision and the new BMA guidance to doctors". J Med Ethics. 31 (8): 463–9. PMC 1734197 Freely accessible. PMID 16076971. doi:10.1136/jme.2004.009340.
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