Image Source: http://thestudentlawyer.com/2013/03/21/r-v-brown-20-years-on/

– Timothy Wilson (LLB Law, Newcastle University) t.wilson3@ncl.ac.uk

Most law students are familiar with the infamous case of R V Brown, in which several homosexual men filmed themselves consenting in sadomasochistic activities. For the faint of heart, I will exclude details of the acts but they were very extreme. When this tape accidentally found its way into the hands of the police, they were all arrested and charged with Grievous Bodily Harm (GBH). Under s.20 the Offences Against the Persons Act 1861. The House of Lords eventually held that it was not in the public interest for the court to allow members of the public to wound each other “for no good reason”.

The attitude of the majority is best summed up, I feel, by Lord Templeman: “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.”, though it must be mentioned that a huge amount of the judgment focused on the fact that the activities were homosexual. It being considered a “comfort” that one of the “victims” had “settled into a normal heterosexual relationship”. Lord Lowry also continually stressed that he would not allow an exception for “sado-masochistic homosexual activity” throughout his judgment.

A running theme was comparisons made to prize fighting and ordinary sports and boxing. Prize fighting was illegalised because it was not seen to be safe or within the public interest, yet other sports were allowed. This was because they were seen as more noble pursuits but mainly because it was not against the public interest, a main consideration for the court. That the latter has a referee to prevent matters from getting out of hand was also a justification.

The appeal against the previous convictions was passed by a bare majority and so it is useful to see what the dissenting judges had to say on the matter. As Lord Mustill points out early in his judgment, that the men in question would have already have convicted for sexual offences under the Sexual Offences Act 1967 (they were spared because of a statutory time limit) is easily overlooked, however since the Equality Act 2010 came into force, this is no longer an issue to write about, just something that we can sadly shake our heads at in hindsight. Lord Mustill focuses heavily on the 1861 Act itself and wonders whether it can account for activity which did not involve any aggression, brutality etc. against the person but was instead more for the benefit of the person. He also wonders whether the makers of the Act even imagined it could cover such bizarre circumstances.

In considering various cases, Lord Mustill comes to the conclusion that there are so many exceptions to the general rule that it is hard to decide where the case fell. Lord Mustill looks at the case in very narrow spectrums. The topic to focus on is “Fighting” which eventually comes to the conclusion that the courts have veered from earlier decisions in some cases and made a public fight legal because of consent but illegal because it wasn’t in the public interest for people to fight in the street in the case of Attorney-General’s Reference No. 6. Lord Mustill believes that “circumstances must alter cases” far too much for the act to simply be illegal until something else says otherwise.

Lord Mustill didn’t think that the consensual infliction of harm should be illegal under the 1861 Act simply because it is just another violent act. He also distinguishes this case with prize fighting, on the grounds that prize fighting was illegalised because of its inherently disruptive nature and the policy at the time of wanting to prevent this.

Finally the issue of public interest was raised. Lord Mustill made it very clear that this should not be decided on the basis of what was morally right, a view that, from their general demeanour, it could be said that the majority did not share. It is not that he found the actions moral in the slightest; he just didn’t find them a question for the criminal court to decide. He then went on to say that the question was not (paraphrased) “should sexual acts be given special protection” but instead, “should they be actively given condemnation”. Lord Mustill also recognised that given the ritualistic nature of the acts, the risks of serious injury were severely lessened, though if such injury did arise then it would be treated as any other.

There are numerous cases where the decision has been distinguished from “Brown” for seemingly arbitrary reasons, specifically R V Wilson (pages 270, 271 and 273). In this case, the defendant heated a knife and branded her with his initials with her consent. However it was placed in the same category as getting a tattoo and so the defence of consent applied. The courts also made the point that it was not the duty of the courts to interfere in the matrimonial home. The sheer hypocrisy of this decision, in the same year as Brown, should be painfully obvious.

There are other considerations I would like to focus on, especially with reference to sports. Simply, sports are dangerous. People die in sports, bones are broken and some sports exist for the sole purpose of allowing a man to fight another man, yet all is excused by consent and lack of aggression. For example, in the case of Condon V Basi (pages 867 and 868), a foul tackle resulting in serious leg injuries in a football games was only found to be unacceptable because the defendant wasn’t being careful enough. From personal experience, whilst practicing martial arts, my sparring partners and I suffered injuries ranging from broken noses, cuts, unconsciousness and even a broken wrist. However it would appear that because we all took reasonable care not to do those things and because we all consented to the risk, there can be no hope of prosecuting any of us, despite serious injuries.

It is also worth pointing out that the distinction made by the courts involving the lack of a referee is somewhat ludicrous for similar reasons. There was a “very experienced Class 1 referee” in Condon, there were instructors watching over my group and yet injuries still occurred. I would argue that the use of a “safe word” is a far better indicator of when the activity should cease than an outside observer. Pain thresholds differ with people after all.

Here is the crux of the argument though. Though the last legislation passed on this issue was only in the Criminal justice and Immigration Act 2008 in s.63 and s.66, only criminalising vaguely “extreme pornography” and legalised the defence of consent, so long as it was possible to consent to such a degree. Since this time, a number of significant events have occurred. Love it or hate it, the shockingly successful book series “Fifty Shades” dragged the issue into the public eye and it is safe to say that the idea of such actions were somewhat normalised as a result of this success. Shortly after this, the conditions of sadism and masochism were cleared from being an indication of mental instability in the Diagnostic and Statistical Manual of Mental Disorders (DRM5), a prominent publication on the subject. Perhaps most significant of all, in early 2013 Stephen Lock was acquitted by a jury after engaging in sadomasochistic activity. Whilst it was only within the Crown Court, this is a strong indicator of changing attitudes and the defendant drew the comparison to a bad tackle within a game of football as well. These evens show just how far the courts and society have come when a judge is happy to allow a jury to acquit on such reasoning.

This is by no means a complete account of the case for and against such activities, nor is it even a complete summary of Brown but I feel that the points surrounding changing attitudes and irregularities have been covered.

In conclusion, it can be safely said that the reasoning used with Brown is now quite outdated, despite only being 20 years ago. Since then society has become less concerned about differences in sexuality and such acts are no longer scientifically condemned. I do not advocate the domestic abuse portrayed within the book series “Fifty Shades” but nor can I say that two (or more) consenting adults should be at risk of prosecution for private acts no more dangerous than a football game. Given the evidence, it almost seems inappropriate for the courts to have the final say in this matter, given how inconsistent they have been so far. If any solution should be found, I agree with Lord Mustill’s judgment that would be Parliament the best body to decide, after very careful consideration of evidence and attitudes that may be so far unknown to them.