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Criminalisation is not enough: regulate the exploitative revenge porn host websites

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7 October, 2014
Civil Liberties, Criminal Law, Dr Nikki Godden, Media Law
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Image from Stop Revenge Porn Scotland Campaign

Image from Stop Revenge Porn Scotland Campaign

Dr. Nikki Godden (Lecturer in Law, Newcastle Law School) – nikki.godden@newcastle.ac.uk

This post was first published on Inherently Human: Critical Perspectives on Law, Gender and Sexuality 

Chris Grayling, the Justice Secretary, has announced that the Government is ‘very open to having a serious discussion’ about the problem of revenge porn, in response to the call from Maria Miller, former Culture Secretary, for a change in the law to address the ‘appalling’ practice ( Justice Questions, House of Commons, 1 July 2014 : Column 745). This ‘appalling’ practice, whereby men (most commonly) distribute intimate and sexual images or videos of women (usually partners or ex-partners) on the internet without consent, is becoming more prevalent in the UK. And the effects of revenge porn upon its victims can be significant. Media reports highlight that victims have experienced personal and professional degradation and humiliation which have, in some cases, led to suicide.

The gender dimensions to revenge porn cannot be ignored. First, revenge porn is typically not an isolated abusive incident in a relationship but rather is one – albeit relatively new – method of control and violation in a wider context of domestic violence (see Scottish Women’s Aid’s Briefing Stop Revenge Porn on this point). Secondly, the fact that it is by far more common for men to distribute images/videos of women and girls contributes to and entrenches the sexual objectification of women, the sexualisation of young people, and gender inequality more generally. As such, it is important that the Government address this growing problem. It seems that the way it will do so is to consider creating a new criminal offence, or amending existing sexual offences to capture all instances where pornography is distributed without the subject’s consent. However, while further criminalisation may be helpful, the focus should be on preventing revenge porn by better regulating internet behaviour, which is a dimension of resolving this developing problem that has typically been absent from public discussions and proposed responses.

It is fair to say that current criminal laws do not properly capture revenge porn, although some can and have been used to tackle the problem. For example, victims can pursue a criminal and civil case against the person who uploaded/published the image for harassment (Protection from Harassment Act 1997). Or, where the victim is a child, the published, distributed or possessed image/video will be classed as child pornography which attracts criminal liability (Protection of Children Act 1978, s 1; Criminal Justice Act 1988, s 160). However, current offences are not designed to address the problem of ‘revenge porn’, leading to doctrinal difficulties (eg proving a ‘course of conduct’ for harassment (Protection from Harassment Act 1997, s 7(3), (4)), and conceptual issues (for example, the offences of distributing or possessing child pornography do not capture the abuse the individual suffers). Stemming from similar concerns, new criminal offences have been created in some states in America (for example, New Jersey, Texas, Utah, Wisconsin, New York, Maryland, and California), Israel, and some Australian jurisdictions, while other countries, such asCanada, Brazil, and Japanare currently considering similar solutions.

Nevertheless, there are significant limitations to existing and new criminal offences where the remedy is directed at the person responsible for uploading the image. It is likely that in many cases it will be difficult to prove that a particular individual posted the image or video on the website, meaning a criminal or civil case may be unsuccessful. Evidence is lacking to prove that crime and punishment have a deterrent effect; and in relation to gender-based crimes, scholars and activists have argued for a long time that law reform alone is insufficient to prevent such crimes. Another point here is that women will be reliant on police taking complaints of revenge porn seriously, and responding appropriately. But as with rape, for example, it is likely that victim-blaming attitudes will influence decision-making in the criminal justice system, inhibiting the effective implementation of laws addressing sexual abuse. The view expressed by Hunter Moore, founder of IsAnyOneUp, a (now obsolete) revenge-porn website, may be shared by others:

‘Oh the girl crying because she sent titty pics to some fool who put it on the internet … Why would you protect those people… How about this, you take responsibility for your actions and stop pointing the finger at other people.’

This is not to say that further criminalisation is unnecessary or futile, but it is to say that, unfortunately, it is going to be of limited value. What needs to be paid serious thought is the possibility of regulating and creating remedies against the websites which host and propagate the images.

Regulations and remedies targeting websites are central. The websites in question tend to be run for profit – typically through the display of advertisements – and are often extremely profitable, with revenues in the order of thousands of dollars per month. They are, in other words, exploiting these images – and their female subjects – for their personal financial gain. For instance, according to Moore, his website was earning around $10,000 per month from advertisement revenue. Equally, from the point of view of the victim, what is far more important is preventing websites from publishing these images, and providing a quick and easy ‘take down’ process to have them removed. Consequently, the websites sometimes advertise takedown processes – but they often charge hundred of dollars for the service, and are frequently run by the site owners themselves.

The contrast with commercial and intellectual property law is stark. Regulations and mechanisms in these contexts are directed at the website hosts and which are focused on making it simple to compel websites to remove infringing material. As such, it needs to be investigated whether similar mechanisms could be used to tackle revenge porn. In addition, as it is spread across the world wide web, an international conversation is needed. The Coalition Government focusing on localised criminal offences is insufficient. The message must be conveyed that a wider view of the problem and solutions are essential.

 

Female Genital Mutilation: A page turned after three decades on the books?

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27 March, 2014
Criminal Law, Law & Equality, Law & Practice, Nikita Beresford
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female

Source: Road sign campaign against Female Genital Mutilation in Uganda by Amnon Shavit

-Nikita Beresford, (LLB Law, Newcastle University)

The first ever prosecutions for female genital mutilation (FGM) have been announced, 28 years after the offence was first specifically criminalised under Prohibition of Female Circumcision Act 1985. The act was replaced in 2003 with the Female Genital Mutilation Act without any prosecutions ever taking place. This decision is a positive step to combatting honour-based violence in Britain; it does not excuse the shocking record of past decades.

 

FGM is not a small-scale or trivial crime. The procedure can involve the full or partial excision of clitoris, labia minora or labia majora, and the subsequent sewing up of the vulva region, with only a small whole left for urine and menstrual blood. In the most extreme cases, women have to be cut open to allow for intercourse and childbirth, and are subsequently re-sewn. The physical risks include blood loss, shock, infection, urinary infections, abscesses and difficulties in passing menstrual blood, having intercourse, or giving birth. A 2007 study estimated that 23,000 girls resident in the UK under the age of 15 were at risk, while almost 66,000 women were already victims. More recent research indicates the number of at risk children could be much higher, more than double what was previously thought.

 

It is shameful that, given the number of potential victims, it is only now that the CPS has found a case in which it believes there is a reasonable chance of conviction. Offences of this nature are notoriously difficult to detect and investigate, with witnesses and victims unwilling to testify, and very few referrals being made to the police. But I share the sentiments of other bloggers that with so many instances of the crime, and the genital mutilation of young women itself being evidence of (at the very least) parental complicity, it is inconceivable that it has taken almost three decades to assemble enough evidence to go ahead with a prosecution. Hopefully the upcoming proceedings mark a watershed in public awareness and prosecutorial discretion, and in the future preventing and punishing FGM will be given the status it deserves.

 

The hearings of Dr Dharmasena, charged with committing an act of female genital mutilation, and Hasan Mohamed, who faces a charge of intentionally encouraging FGM, and a second charge of aiding, abetting, counselling or procuring an act of FGM, begin at Westminster Magistrates’ Court on April 15.

 

More information:

Forward UK – Key Issues – FGM

NHS Choice – Female Genital Mutilation

 

 

 

Domestic Abuse: Time for A Specific Offence?

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19 March, 2014
Criminal Law, Lewis Bedford
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USMC-04952

– Lewis Bedford (LLB Law, Newcastle University) l.bedford@newcastle.ac.uk

The highly anticipated private members Bill, purporting to overhaul the law underpinning domestic abuse, is set for second reading early June this year. The Bill intends to create a separate offence running in parallel to the current Offences Against the Persons Act 1861.

Elfyn Llwyd, sponsoring the Bill, hopes the proposals will bring domestic abuse laws up-to-date by codifying the cross-government definition of domestic abuse adopted last year; a definition that the current law does not fully accommodate. If successful, the Bill will criminalize all elements of domestic abuse including what has been coined coercive control (ibid):

[A]n act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim

If the Bill is passed, perpetrators will find themselves facing a custodial sentence of up to fourteen years. Moreover, under the judiciary’s discretion, there is a possibility that the accused must attend a domestic violence rehabilitation program whilst in prison.

A number of measures are also being proposed in retaliation to the perceived justice gap and attrition problem inherent in many domestic offences. Concerns have been raised as to why cases often fall through in the prior stages to prosecution.

WomensAid underline how victims, predominantly women, may feel pressured into dropping charges post-incident in order to maintain a family’s reputation.  Additionally, particularly among Minority Ethnic communities, women often feel ostracized within their local areas due to ‘allegations of disloyalty or collusion’. Only making matters worse, the long costly nature of the court process leaves victims at risk of suffering further domestic abuse whilst waiting for cases to be heard. Arguably, because of these hurdles, victims are less inclined to report domestic abuse. Statistically, only 20% of rapes or sexual assaults are reported to the Police. Less serious cases of domestic abuse also share similar statistics.

Llwyd, hoping to address these issues, stated how the Bill intends to tighten up the investigatory process, create duties upon the police force in respect of domestic abuse call-outs, and provide statutory training in relation to such cases. However, with the Bill being what Llwyd calls a ‘working draft’, what these provisions specifically entail is yet to be specified.

Jamie Doward believes the Bill will be similar to its US counterpart, the Violence Against Women Act (VAWA). By strengthening penalties for re-offenders, creating dedicated hotlines, and ensuring police responses, the Act hoped to tackle similar issues that are faced in England and Wales today. In light of the Bureau of Justice’s statistics, the Act was, in the most part, successful. After the Act’s inauguration, intimate partner violence decreased by 64% – a statistic VAWA advocates have been keen to underline.

It’s supposed success was accredited to a combination of factors. Most notably, however, the Act has sectioned funds for training in how to cope with domestic abuse call-outs for over half a million law enforcing personnel every year. With Llwyd pointing towards training himself, it seems England and Wales may make similar provisions.

Lanette Ruff concluded in 2012, that training does matter. Ruff explored the responses of police officers with regards to domestic abuse call-outs in Fredericton, Canada. By drawing upon statistics compiled both before and after training, Ruff concluded that officers were more likely to report crimes once training had been completed. As somewhat of a corollary, guilty verdicts also marginally increased. Ruff found particularly promising how ‘ongoing training allows police officers to reflect on the importance of treating each domestic dispute call like it is their only opportunity to provide intervention’. Indeed, there has been a pressing concern that some forces in the UK are harboring a ‘culture of disbelief’ with regards to the more serious domestic offences. Active participation in training would go some way to correct this injustice (ibid):

[T]raining provides… an opportunity to reflect on their own biases and stereotypes… and how their views can have an unintended impact on their response to accused and victims

On the other hand, Ruff’s analysis also found that post-training, a majority of officers responded in a similar fashion to how they always had. Police still seemed reluctant to contact a temporary shelter or mention third party help centers.

Furthermore, Kate Pickert suggests that the fall in domestic violence in the US is more likely attributable to the general nationwide drop in domestic abuse, irrespective of the Act being implemented. Pickert believes that rather than shortening the justice gap, the VAWA spurred a counterproductive culture change in law enforcement. She believes particular training has the capacity to foster a culture whereby police are more willing to arrest on arrival. As such, women may be discouraged from reporting domestic violence in fear their partners will be arbitrarily detained in custody. Indeed, it is generally held among commentators that victims of domestic abuse are often dependent, particularly financially, on their abusive partners. If such is the case, foresight of an arrest surely works as a disincentive rather than encouraging women to speak up.

The Bill’s proposed obligations on officers might also prove ineffective. Llwyd, in his ten-minute motion, made little reference to what obligations police forces in England and Wales would be subject to. Catherine Baksi interprets Llwyd as proposing a duty to investigate.

Under such a scenario, officers will most probably be obliged to investigate if they hold a reasonable suspicion that the supposed offence had occurred. In most cases, the accused will unreservedly deny any accusations, leaving any reasonable suspicion grounded solely on the victim’s testimony. Officers will find themselves faced with little option but to side with one or the other; accused or accuser. The bottom line is, those making callouts will be caught in an uncomfortable and cost-ineffective situation. Furthermore, having to deal with a barrage of similar in-conclusive scenarios, officers may become desensitized towards those less serious, non-evidential abuses within the home that the Bill aspired to address. Indeed, this may work as a catalyst for the ‘culture of disbelief’ [quote other article here] some commentators are keen to underline.

Clearly, the proposals may prove ineffective in tackling the issues faced by the law related to domestic abuse. Some have questioned whether reformulating the law is even necessary with the Offences Against the Person Act and subsequent case law already providing adequate legislative underpinning. Instead, focus should be placed more readily upon cutting domestic abuse before it happens, rather than finding justice for victims. Personally, however, I believe reforms should be welcomed with open arms.

Providing a separate offence will not only clarify what domestic abuse entails, but also provide a platform whereby change, both legal and social, can be obtained. The criminal law undoubtedly holds an overwhelming ideological and discursive power among those subject to it. By coherently setting out the offence, Parliament sends a strong moral message about intimate partner abuse. In effect, the law can be used as a tool to further the changing attitudes and ideals in relation to domestic abuse. Indeed this is increasingly important for those offences that don’t ‘leave scars or bruises, but [are] every bit as debilitating’. Such offences are relatively new within the sphere of what constitutes domestic abuse; society must be reminded that coercive control should not, and will not, be tolerated. Nevertheless, it must be borne in mind that change can go two ways. Hopefully, those drafting the particular Bill are appreciative of how particular proposals can prove counterproductive, not just for victims but society as a whole.

Pursuing a Career at the Criminal Bar – A Fool’s Choice?

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6 March, 2014
Criminal Law, Law & Practice, North East Law Review Blog Competition, Sophie Allinson
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JS30825769-6472529

Image Source: http://www.gazettelive.co.uk/news/teesside-news/legal-aid-cuts-protesting-barristers-6472513

– Sophie Allinson (LLB Law, Newcastle University) s.allinson@ncl.ac.uk

“Today our worst fears have been confirmed, another round of cuts, after three years of cuts, cuts and more cuts“.

Nicholas Lavender QC

 Uncertainty is a theme increasing in prominence throughout all practices at the Bar, but none more so than the Criminal Bar. Cuts to the criminal legal aid budget were confirmed yesterday, reducing the funding available by £220 million. Widespread opposition and strong condemnation has been voiced, with Nicola Hill, president of the London Criminal Courts Solicitors Association, damning the confirmation of the cuts as, “a shameful day in legal and criminal justice”. Such a measure of austerity will mean fewer people than ever before will qualify for legal representation, and worryingly, many will find themselves unable to afford access to justice. The closure of several high-profile chambers is indicative of the crisis facing the criminal bar. Barristers of the highest quality are struggling to fill their diaries. Many junior criminal barristers have made it plain that they cannot survive on their wages. Such a crisis begs the question, who could possibly still want to pursue a career as a criminal barrister?

It is true that cases will not vanish, there will always be crime. The law will not cease to operate simply because funding has been withdrawn. Representation, however, is in great danger of disappearing, as barristers seek to make ends meet in other fields of law. This raises extremely alarming questions about the possibility of miscarriages of justice and the upholding of democracy, as quality barristers are forced out. The legal profession has voiced their fury by holding a half-day demonstration. This is the first time barristers have completely withdrawn their labour in support of a cause, with a further strike planned. Those already trained within the profession are struggling to see a viable future for their career. Ministry of Justice figures show that criminal barristers have an average income of £56,000. However, Nigel Lithman QC, chairman of the Criminal Bar Association explains this is before all other costs have been deducted. Lithman argues the number of bankruptcies in the junior bar is increasing at an unheard of rate, with the majority struggling to meet the cost of living.

Junior barristers currently undertaking pupillages at criminal sets have reported annual incomes of no more than £24,000. To put this in perspective, this is equivalent to a basic cleaner’s salary and lower than entry level jobs in nursing, local government or the police. The amount of debt accrued in the years of university and graduate training outweigh the financial reward substantially. It is true that many are doing rewarding work which they are passionate about, yet the truth remains that these students will have financial obligations to meet. The old mantra of sticking with it to reap the eventual reward appears to have been wiped out. Hearings in the magistrates’ court are usually in the range of £50 – £80 and Crown Court work is increasingly scarce. The majority of those at the junior end are still saddled with student debt, combined with rising living costs, particularly on the South Eastern Circuit. The profession appears to no longer be economically viable.

It is true that in times of austerity, every publicly funded area must bear the brunt of cuts. Nevertheless, the cuts announced this week have been criticised as unprecedentedly harsh. The Ministry of Justice made few concessions, despite a sustained campaign emphasising the cut’s irreconcilability with the public interest. Consequently it is expected that skilled and experienced advocates will be pushed away from publicly-funded criminal work. Indeed some chambers have found themselves unable to continue operating. Tooks Chambers, having worked on landmark cases such as Hillsborough (although not as a criminal set), began dissolution in 2013, directly blaming legal aid cuts for their inability to continue.

What do these cuts mean for students? For those seeking a profession as a solely criminal practitioner, the outlook is decidedly bleak. Chamber sets specialising in criminal law rely overwhelmingly on cases funded by legal aid. The steady reduction in this source of income has left a large number of chambers economically vulnerable, and unable or unwilling to provide financial support to their pupils. For several sets, funding for pupils has been entirely withdrawn. The majority of those wishing to undertake the BPTC must now fund the absolute minimum £12,000 tuition fee entirely on their own, with no guarantee of a job upon completion of their training. If only a privileged minority can fund their course independently, surely the criminal bar is inaccessible to the majority of students who cannot justify this financial risk, especially without the guarantee of an income at the end.

However, attempts to support those who still seek a career at the Bar cannot be overlooked. The Inns of Court have pledged significant financial contributions in an effort to encourage chambers to continue offering pupillages in the short-term. The “pupillage matched funding scheme” will provide 50% of the fees offered to trainees by chambers. James Wakefield, director of the Council of the Inns of Court insists that the decreasing availability of opportunities for hopeful barristers will be tackled by the funding scheme. Of course, the introduction of this funding will prevent the profession from dominance by the financially privileged. On the face of it, those who cannot afford the onerous costs of the BPTC should not be deterred, as there will still be financial assistance available during training.

However, whilst the scheme may keep the opportunities for training open, what follows after that? Ultimately, with less paid work on offer for junior barristers, what good will a pupillage be? This has been acknowledged by the Inns, who have announced a review of the scheme in 2015.  Furthermore it has been stated funding may be withdrawn entirely if the scheme proves unworkable. Critics of the proposal, including Nicola Hill, have already pointed out that the result will be an abundance of qualified junior barristers, fighting for the few remaining cases available. Whilst such a scheme may be successful in ensuring students are not deterred from undertaking training, it will be unsuccessful in finding these students work when they need it.

Nevertheless, during such times of uncertainty, it can only be a good thing that the doors to the profession are being propped open for as long as possible, denying them the chance to slam shut infinitely. The economy is recovering, albeit is slowly and incrementally. Whilst it is unlikely that the Government will restore the legal aid budget in its entirety, alternative courses of action will develop over time. Chambers specialising in criminal law will adapt to survive. It is expected that many sets will branch out into other areas, pursuing cases in fraud, bribery and regulatory law to bring in stable fees. This will certainly reassure those who plan on becoming a criminal barrister, however it must be noted that the type of casework is likely to be less socially rewarding than it has been over previous years, as the focus is changed. Those who were once drawn to the criminal bar to pursue ideals such as ‘innocent until proven guilty’ will find themselves working towards substantially different mantras.

Ultimately though, it is argued that it would be naïve to ignore the fact that the Criminal Bar appears to be a sinking ship. With those already in the profession being compelled to make the choice between abandoning, or being forced to walk the plank, students who are yet to finalise their career choices would be well advised to stay away from the profession.  To those already at the criminal bar, the choice is clear-cut, leave voluntarily or wait to be forced out. Huge financial risk is unlikely to be outweighed, as the potential for reward is being increasingly reduced, with very little indication of an imminent return. There will always be crime, thus there will always be cases. But the availability of these cases, and the money gained from undertaking the enormous level of work demanded appears to render a choice to pursue a career as a criminal barrister as nonsensical. It is a saddening truth to realise that the criminal bar is no longer a realistic option for students with aspirations to become a barrister. With this said, it can only be hoped that as the economy commences its recovery, the legal sector may slowly begin its revival.

R V Brown: Where are we now?

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6 March, 2014
Criminal Law, North East Law Review Blog Competition, Timothy Wilson
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Fifty-Shades-of-Grey-1200x500

 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.