R v Brown [1993] UKHL 19 (11 March 1993)

Appellants were a group of sado-masochistic homosexuals who willingly engaged in violent acts for sexual pleasure. The House of Lords held that their consent was no defence to charges of assault occasioning actual bodily harm, establishing limits on consensual violent activity.

Facts

The appellants were a group of adult homosexual men who, over a period of ten years, willingly and consensually participated in sado-masochistic acts in private. These activities involved acts of violence, including nailing a person’s penis to a board, branding with a hot wire, and beatings, all for the purpose of sexual gratification. The activities were recorded on videotapes which were discovered by the police during an unrelated investigation. None of the participants had ever complained to the police or required medical treatment. The appellants were charged with offences under sections 20 (unlawful wounding) and 47 (assault occasioning actual bodily harm) of the Offences Against the Person Act 1861. At trial, the judge ruled that consent was not a defence to these charges, leading the appellants to plead guilty. They appealed against this ruling.

Issues

The central legal question certified for the House of Lords 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?’ In essence, the issue was whether consent could be a valid defence to charges for injuries amounting to actual bodily harm (ABH) or grievous bodily harm (GBH) inflicted during private, consensual sado-masochistic acts.

Judgment

By a 3-2 majority, the House of Lords dismissed the appeal, holding that consent was not a defence in these circumstances. The majority judgment was led by Lord Templeman, Lord Jauncey, and Lord Lowry, with powerful dissents from Lord Mustill and Lord Slynn.

Majority Reasoning

The majority held that as a matter of public policy, consent cannot justify the intentional infliction of actual bodily harm or more serious injuries for sexual gratification. Lord Templeman characterised the activities as cruel, degrading, and violent, regardless of the participants’ consent. He argued that society has a right and duty to protect itself from such behaviour. He stated:

In my opinion the authorities show that it is not in the public interest that persons should try to cause, or should cause, each other actual bodily harm for no good reason. It is not a good reason that the person who inflicts the injury should be gratifying his sado-masochistic lust.

Lord Templeman drew a distinction between the appellants’ activities and other situations where consent to harm is permitted, such as properly conducted sports (e.g., boxing), reasonable surgical interference, and tattooing. He argued that sado-masochism did not fall into any of these recognised public interest exceptions and that it would be wrong to create a new one for such conduct, which he described as a ‘cult of violence’.

Dissenting Opinions

The dissenting judges argued that the criminal law should not intervene in the private, consensual sexual activities of adults. Lord Mustill, in his detailed dissent, argued that the case was not about violence in general but about the ‘peculiar’ sexual proclivities of a small group of people. He was concerned about the judiciary creating a new crime where Parliament had not, stating:

These are questions of private morality; the standards by which they fall to be judged are not those of the criminal law; and it would be a misuse of the House’s functions, as I see it, to use the opportunity to express views on private morality, which would be just as authoritative, and perhaps just as little to the point, as if they were expressed in a sermon or a letter to the press.

Lord Mustill argued that there was no general rule that consent was irrelevant to ABH, but rather a series of recognised exceptions. He concluded that the court should be reluctant to extend the law to cover conduct which had not previously been considered criminal, particularly where it concerned private acts between consenting adults.

Implications

The decision in R v Brown established a crucial precedent in English criminal law regarding the limits of the defence of consent. It affirmed that consent is generally not a defence to the intentional infliction of injuries amounting to actual bodily harm or worse, unless the activity falls within a recognised category deemed to be in the public interest (such as sport, surgery, or tattooing). The judgment has been highly controversial, igniting a significant debate about the extent to which the law should regulate private morality and protect individuals from harms they willingly consent to. It highlights the tension between the principles of individual autonomy and the paternalistic role of the state in upholding public morality and preventing violence, even when that violence is consensual and private.

Verdict: The House of Lords, by a 3-2 majority, dismissed the appeals, holding that consent could not be a defence to charges of assault occasioning actual bodily harm and unlawful wounding in the context of sado-masochistic activities.

Source: R v Brown [1993] UKHL 19 (11 March 1993)