Landmarks in regulation: when 5 males have been jailed for consensual intercourse | Finding out regulation
T.The case of five men incarcerated for consensual sadomasochistic sexual acts is one of the few verdicts most law students actually read, and the facts tend to stick with them. Appellants in R v Brown had been convicted of physical injury (ABH) and wounding. A majority decision in the House of Lords said that the fact that the men had consented to the acts which included inserting fishhooks through the penis and nailing the foreskin and scrotum onto a board was not a defense.
The judgment of consent and the limits of criminal law interference in people’s sexual relationships have since been criticized by many as paternalistic and homophobic.
Three years later, the appeals court found the opposite in R v Wilson’s case, in which a husband burned his initials on his wife’s buttocks with a hot knife, ruling that the man had the informed consent.
To fill the loophole, the 1999 appeals court upheld Mr. Emmett’s conviction of assault in R v Emmett, stating that the same rules apply to heterosexual and homosexual relationships.
Eleanor Sharpston QC, one of the lawyers serving the defendants on the BBrown case, said the prosecution was never designed to prosecute consensual sex. The disagreement as to whether it was violence or sex created a 3: 2 split between the judges. “The majority who found the behavior loathsome and disgusting felt it was about violence that they thought had nothing to do with sex,” she says.
The law states that consent is a defense against deliberately causing harm in activities from surgery and circumcision to tattooing, ear piercing, and violent sports like boxing and rugby. The men in the Brown case had argued that consent should defend the charges because people have the right to use their own bodies and the law should not punish consensual achievement of sexual satisfaction.
Lord Templeman said public order means that the law should protect people from “unpredictably dangerous and degrading” practices that included “torture and violence to the buttocks, anus, penis, testicles and nipples”. He said: “Society is entitled and obliged to protect itself from a cult of violence. The pleasure that comes from inflicting pain is an evil thing. Cruelty is uncivilized. “
Lords Jauncey and Lowry agreed, but in a dissenting judgment – which Lord Slynn agreed – Lord Mustill said that consensual, private sexual acts, including the involvement of ABH, should be outside criminal law.
“This is a case about the criminal law of violence. In my opinion it should be the criminal law of private sexual relations, if anything, ”said Lord Mustill. “Aside from reluctance and moral objection, both of which are perfectly natural but are not, in my opinion, reasons the court could properly create a new crime.”
Following the ruling, the Law Commission, which is advising the government on legal reform, published two papers on consent and crimes against the person, both of which suggest a more liberal approach. The latter concluded that while you may not consent to a serious and disabling injury, you can consent to a minor injury in a sexual context.
But, Sharpston complains, it was just a report that never made it into criminal law. The case, she recalls, involved a group of ordinary men who happened to be homosexual and interested in S&M, who would occasionally get together to act out fantasies, receive sexual stimulation, and end up having a cup of tea.
She describes law enforcement as an abuse of power by the state to disrupt personal relationships. “It is not up to the state to sentence people to several years in prison for consensual sex.”
Myles Jackman, a leading profanity attorney, says the Brown case is still the legal “guideline” for physical autonomy, agency, consent to sexual relations, and body modification.
He takes the appeals court decision in 2019 on the case of Brendan McCarthy, the tattoo artist named Dr. Evil, note. There, the judges ruled that the written consent of his clients to perform ear and nipple removals and a split tongue procedure was not a defense. He pleaded guilty to deliberately causing serious bodily harm on three counts and was sentenced to 40 months in prison.
According to a campaign by the “We Disagree” group, an amendment to the Domestic Violence Act aims to establish Brown’s legal principle that a person cannot consent to actual bodily harm or other serious injury. This follows the increasing use of the defense against “rough sex” by defendants in murder cases in which defendants claim that death was caused by sexual activity that went wrong.
Consent does not offer a defense against murder, but according to the group, more than 60 people have been killed in cases where the male defendants alleged the victim agreed to inflict serious harm on them for sexual gratification, meaning they lacked intent kill or cause serious bodily harm.