R v Brown  1 AC 212 is one of the most popular cases among law students and it raises issues which conflict with what we are socially ‘comfortable’ to examine, perhaps mainly due to old and established taboos. This case brought under the spotlight activities which take place behind closed doors and, even though these activities were frowned upon, they will still continue to happen.
This case brought under the spotlight activities which take place behind closed doors…
Regardless, one can arguably infer that the force of the argument on the basis of protection of the public overcomes consent in cases of sadistic sexual activity, even if consent is freely granted or the given act is restricted to a private circle of adults. As much as this approach may be considered by some as anachronistic or paternalistic, it must be compared to the wider acceptance of sports such as boxing, mixed martial arts or WWE fights, which can have similar harmful results to sadomasochism, without the sexual gratification factor.
If the courts are penalising sexual acts which result in actual or grievous bodily harm, even if done privately, on grounds of public protection then why are they not doing the same for sports with similar consequences that are open to the public?
Question of public policy
The basis of the court’s decision is that it is not in the interest of the public to allow causation of harm for no good reason – a statement seen in the Attorney General’s Reference (No 6 of 1980)  2 All ER 1057, even though a good reason is a subjective criterion. Certain details, besides the grounds of public policy, influenced the outcome of the Brown case in a more negative manner since the participants were older men who encouraged the participation of boys who were under 21 while using alcohol and drugs. Even though it is a policy issue, the judges had to rule on the basis of certain facts, and though the circumstances were unusual their decisions seem to not fully realise or appreciate the existence of clear and free consent. A conflict about how the majority understands and accepts consent and how the actual participants do arises; and just because the majority view is not able to compromise with the minority that should not necessarily negate consent.
Generally, the causation of bodily harm brings a prima facie unlawfulness, unless it falls under certain exceptions such as lawful surgery, tattoos, ear-piercing and properly conducted sports. The policy that stands above other arguments, such as infringement of private life under Article 8 of the ECHR, is that although a sport such as boxing may cause similar intentional violence as a sadomasochistic sexual act, the courts are not willing to accept the harm done for sexual gratification. The ECHR in Laskey  24 EHRR 39 made clear that even if the prosecution of the defendants can be seen as interference in their private lives it is justified by the protection of public health. Moreover, when considering the nature of sadomasochism there is a point of conflict between human dignity, freedom and respect for private life. Even though boxing is violent it does not affect these factors in such a sensitive way.
Boxing and sadomasochism
According to Lord Mustill:
For money, not recreation or personal improvement, each boxer tries to hurt the opponent more than he is hurt himself, and aims to end the contest prematurely by inflicting a brain injury serious enough to make the opponent unconscious, or temporarily by impairing his central nervous system through a blow to the midriff, or cutting his skin to a degree which would ordinarily be well within the scope of section 20…It is in my judgment best to regard this as another special situation which for the time being stands outside the ordinary law of violence because society chooses to tolerate it.
Even though boxing is violent it does not affect these factors in such a sensitive way.
Arguably, compared to other martial arts sports the difference as to damage is minimal, if a player abides by the rules then it should be considered lawful. Athletes consent to a risk within the set of rules, anything beyond that would be excessive and cruel violence. Foul strikes and hits between rounds would constitute that exact breach of consent. Otherwise we will find ourselves in a chasm arguing about the prohibition of all martial arts and violence related sports.
In R v Coney (1882) 8 QBD 534 the defendant was involved in an illegal prize fight which immediately – due to the element of illegality – made consent invalid.
An interesting point raised by Cave J and supported by Stephen J was that:
I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault…If this view is correct a blow struck in a prize-fight is clearly an assault; but playing with single-sticks or wrestling do not involve an assault; nor does boxing with gloves in the ordinary way.
This approach has been followed in cases like R v Johnson (1986) 8 Cr App R 343, where a rugby player bit his opponent during a match and was punished by six months imprisonment. In R v Lloyd (1989) CLR 513 a rugby player kicked another while he was on the ground, breaking his cheekbone. It was held that the act was autonomous and unrelated to the game. In R v Billinghurst  Crim LR 553 a rugby player punched another fracturing the jaw. It was considered that although players consent to force that is reasonably expected to happen they do not consent to unlimited force that crosses the line, the defendant was sentenced to nine months imprisonment. In R v Cey (1989) 48 CCC (3d) 480 where the defendant injured another player during a hockey game, the trial judge’s rationale was that since the force was to be expected and the other player continued the game after the injury he was giving an implied consent. The court also mentioned that in the future, consent in sports should be examined in reference to factors such as nature and standards, the state of mind of the accused and the extent of force and harm.
Arguably, if one wants to develop the meaning of consent, he or she could also take into account each person’s threshold of pain…
Arguably, if one wants to develop the meaning of consent, he or she could also take into account each person’s threshold of pain, whether it be a boxer who decides to return to the fight after a severe hit or an adult who practices sadomasochism in a private environment. Such an approach could be undertaken for cases of sadomasochism which would be brought to the court, this would be a more liberal rather than complete interventionist stance.
Moreover, there is a question about how such acts would be dealt with if rather than grievous, actual bodily harm is caused. Stephen J in Coney requires maim (threat to life or limb) before negating consent, according to this view then should a boxer who receives a concussion or a broken arm that leads to a disability be considered to have consented to that degree of damage? Likewise, should a sadomasochist who causes – by violent means – no permanent harm be criminalised?
It’s important to note that on a legislative basis more emphasis will be given to the position of the Parliament and what it considers correct. If it deems necessary to criminalise sadomasochistic acts then it will have the ability to legislate on the issue and possibly amend the Offences Against the Person Act 1861. Arguably, it becomes a question of future deterrence, a minimisation of harm, boxing and similar sports are too widely accepted to be leashed by the Courts; except only in cases where violence gets beyond certain limits. In a field of social sensitivity and taboos the court is ‘stepping’ on safer grounds by following a paternalistic rather than liberal approach with regards to sadomasochism.