Yahoo Finance Landmarks in law: when five men were jailed for consensual sex
The case of five men jailed for engaging in consensual sadomasochistic sexual acts is one of the few judgments that most law students actually read, and the facts tend to stay with them. The appellants in R v Brown had been convicted of actual bodily harm (ABH) and wounding. A majority ruling in the House of Lords said the fact that the men had consented to the acts, which included inserting fish hooks through the penis and nailing foreskin and scrotum to a board, provided no defence.
The ruling on consent, and the limits of the intrusion of criminal law in people’s sexual relationships, has been criticised by many since as paternalistic and homophobic.
Three years later, in the case of R v Wilson, which involved a husband branding his initials on his wife’s buttocks with a hot knife, the court of appeal reached the opposite result, ruling that the man had the defence of consent.
In an attempt to close the gap, in R v Emmett in 1999, the court of appeal upheld the conviction of Mr Emmett for assault, stating that the same rules applied to heterosexual and homosexual relationships.
Eleanor Sharpston QC, one of the barristers who acted for the defendants in the BBrown case, says the charges were never designed for prosecuting consensual sex. The disagreement over whether the case was about violence or sex, led to the 3:2 split between the judges. “The majority, who found the conduct vile and disgusting, thought the case was about violence being done, which they thought had nothing to do with sex,” she says.
The law says consent is a defence to the intentional infliction of harm in activities from surgery and circumcision to tattooing, ear-piercing and violent sports such as boxing and rugby. The men in the Brown case had argued that consent should provide a defence to the charges on the basis that people have the right to deal with their own body and the law should not punish consensual achievement of sexual satisfaction.
Lord Templeman said public policy meant the law should protect people from the “unpredictably dangerous and degrading” practices that involved “genital torture and violence to the buttocks, anus, penis, testicles and nipples”. He said: “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.”
Lords Jauncey and Lowry agreed, but in a dissenting judgment – with which Lord Slynn agreed – Lord Mustill said consensual, private sexual acts, up to and including involving ABH, should be outside the criminal law.
“This is a case about the criminal law of violence. In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all,” said Lord Mustill said. “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.”
In the wake of the judgment, the Law Commission, the body that advises the government on law reform, published two papers on consent and offences against the person, both suggesting a more liberal approach. The latter concluded that while you cannot consent to serious and disabling injury, you could consent to minor injury in a sexual context.
But, Sharpston laments, it remained just a report that never made it into the criminal law. The case, she recalls, involved a group of ordinary men who happened to be homosexual and into S&M, who occasionally got together to act out fantasies, got sexual stimulation, and had a cup of tea at the end.
She brands the prosecution as an abuse of power by the state to interfere with personal relations. “It is not the state’s business to sentence people to multiple years in prison for consensual sex.”
Myles Jackman, a leading obscenity lawyer, says the Brown case is still the legal “guideline” for bodily autonomy, agency, consent in sexual relations and body modification.
He notes the court of appeal’s ruling in 2019 in the case of Brendan McCarthy, the tattooist known as Dr Evil. There, the judges ruled that his customers’ written consent to carry out ear and nipple removals and a tongue-splitting procedure did not amount to a defence. He pleaded guilty to three counts of causing grievous bodily harm with intent and received a 40-month jail sentence.
Following a campaign by the group We Can’t Consent to This, an amendment to the domestic violence bill seeks to establish in legislation the legal principle from Brown that a person cannot consent to actual bodily harm or other more serious injury. This follows the rise in the use of the “rough sex” defence by defendants in cases of homicide, where defendants claim that death was caused from sexual activities that went wrong.
Consent provides no defence to murder, but, according to the group, more than 60 people have been killed in cases where the male defendants claimed the victim consented to having serious harm inflicted upon them for sexual gratification, which it argued means they lacked the intent to kill or cause grievous bodily harm.
