Law Report: Consensual sado-masochistic acts unlawful: Regina v Brown and others - House of Lords (Lord Templeman, Lord Jauncey of Tullichettle, Lord Lowry, Lord Mustill and Lord Slynn of Hadley), 11 March 1993

Considerations of policy and public interest, such as the protection of society against a cult of violence, the possibility of corruption of young men and the danger of serious injuries, required that consensual sado-masochistic activities in private between homosexuals involving the infliction of actual bodily harm should constitute offences under section 20 and 47 of the Offences Against the Person Act 1861.

The House of Lords (Lord Mustill and Lord Slynn dissenting) dismissed appeals against convictions of unlawful wounding and assault occasioning actual bodily harm contrary to sections 20 and 47. The appellants, middle- aged men, engaged in consensual sado-masochistic homosexual activities in private with youths.

Their activities included genital torture, branding and bloodletting. The activities did not result in any permanent injury or require medical attention.

No complaint was made to the police who discovered the activities by chance. The issue raised was whether the prosecution had to prove the victims' lack of consent to establish guilt under sections 20 and 47.

Lawrence Kershen QC and Pauline Hendy; Baroness Mallalieu QC and Adrian Fulford; Anna Worrall QC and Gibson Grenfell; Ronald Thwaites QC and Jonathan Lurie; Eleanor Sharpston (Geffens; Parkinson Wright; JP Malnick & Co; Hughmans; Shakespeares) for the appellants; Nicholas Purnell QC and David Spens (CPS) for the Crown.

LORD TEMPLEMAN said that in some circumstances violence was not punishable under the criminal law. Surgery involved violence resulting in actual bodily harm but was lawful. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing were lawful activities.

The authorities dealing with the intentional infliction of bodily harm did not establish that consent was a defence to a charge under the 1861 Act. They established that the courts had accepted that consent was a defence in the course of some lawful activities. The question was whether the defence should be extended to the infliction of bodily harm in the course of sado-masochistic encounters. That question could only be decided by consideration of policy and public interest.

The slogan that every person had a right to deal with his body as he pleased did not provide a sufficient guide to the policy decision which must be made. Sado-masochism was not only concerned with sex. It was also concerned with violence. The appellants' practices were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless. There were obvious dangers of serious personal injury and blood infection. There was a difference between violence which was incidental and violence which was inflicted for the indulgence of cruelty.

The violence of sado-masochistic encounters involved the indulgence of cruelty by sadists and the degradation of victims. His Lordship was not prepared to invent a defence of consent for sado-masochistic encounters which glorified cruelty and resulted in offences under sections 47 and 20.

There was no reason to refrain from pursuing charges under the 1861 Act merely because other charges, such as gross indecency which were time barred, could not be pursued. Charges under the 1861 Act were concerned with violence. The violence of sadists and the degradations of their victims had sexual motivations but sex was no excuse for violence.

Society was entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain was an evil thing. Cruelty was uncivilised. The appellants' appeals against convictions were dismissed.

LORD JAUNCEY, concurring, said that the infliction of actual or more serious bodily harm was an unlawful activity to which consent was no answer. Further, the possibility of serious injury and of proselytisation and corruption of young men had to be considered. It would not be in the public interest that deliberate infliction of actual bodily harm during homosexual sado-masochistic activities should be held to be lawful.

LORD LOWRY also concurred.

LORD MUSTILL, dissenting, said that the House of Lords was free to consider afresh whether the public interest required section 47 to be interpreted as penalising an infliction of harm which was at the level of actual bodily harm but not grevious bodily harm, which was inflicted in private and with the consent of the recipient and for the gratification of sexual desire.

The issue was not whether the appellants' conduct was morally right but whether it was properly charged under the 1861 Act. The standards by which questions of private morality fell to be judged were not those of criminal law.

The state should interfere with the rights of an individual to live his or her life as he or she might choose no more than was necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who comprised the populace at large.

The possibility that matters might get out of hand, the interests of public health and the disturbing prospect that strangers might be drawn into these activities at an early age were not grounds for making the activities criminal under the 1861 Act. These consensual private acts were not offences against the existing law of violence.

LORD SLYNN, also dissenting, said that this was a matter of policy for the legislature to decide. It was not for the courts in the interests of 'paternalism' to introduce into existing statutory crimes relating to offences against the person, concepts which did not properly fit there.

Ying Hui Tan, Barrister