R v Brown – 20 Years On

Case Overview

R v Brown [1994] 1 AC 212 is a case most law students remember long after graduating, so striking are its facts.

By a 3–2 majority, the House of Lords held that the consensual infliction of harm for sexual gratification was not something the criminal law should permit. The judgment has been criticised in academic circles, with some arguing that had the facts involved heterosexual sadomasochistic activity, the outcome may have been different.

Supporters of this view often contrast Brown with R v Wilson [1997] QB 47, a case involving heterosexual sadomasochistic activity which the Court of Appeal found lawful only a few years later. Others criticise Brown for excessive paternalism: if one can consent to the risks of smoking, tattooing or martial arts, why should consensual sexual activity in private be criminalised?

Twenty years after Brown, its principles remain a topic of debate.

Has society moved on from the 1990s understanding of sexual behaviour? Do we view the activities in Brown, and similar ones, differently today? Should private citizens be permitted to consent to injury for sexual gratification within the privacy of their own homes?

R v Steven Lock

Earlier this year, Steven Lock was acquitted of assault occasioning actual bodily harm after engaging in sexual activities inspired by Fifty Shades of Grey.

His case is not a perfect comparator for assessing whether Brown reflects modern attitudes, because a not‑guilty verdict simply means the jury was not convinced beyond reasonable doubt that a criminal act occurred.

It does not necessarily indicate approval of the activities themselves, with Mr Thomson, the counsel for Mr Lock, underlining that Fifty Shades of Grey is not a manual; it is a work of fiction, and this case demonstrates that things can go wrong.”

Consent in R v Brown

There was uncertainty over whether all the activities in Lock were consensual, and similar uncertainty appears in parts of the Fifty Shades of Grey narrative that inspired the couple.

The book has been criticised for its ambiguous treatment of consent.

Sex+ blogger Laci Green, in her video Fifty Shades of WTF, highlights the problematic nature of “not doing it right,” meaning unclear or disregarded consent. This uncertainty is another reason Lock is a poor measure of social attitudes: society does not approve of sexual activity where consent is ambiguous, regardless of the acts involved.

In contrast, consent was central to the appellants’ argument in Brown, and a key reason Lord Mustill and Lord Slynn dissented. The defence framed the issue for the jury as whether the “victims” consented and whether the defendant believed they consented.

According to the House of Lords, this was irrelevant. The participants in Brown asked the court to recognise their acts as lawful because they were consensual, yet Lord Templeman stated that “pleasure derived from the infliction of pain is an evil thing.” Consensual violent acts remained violent acts and were prohibited.

The House of Lords held that although the appellants agreed to participate, it was not in the public interest to allow such behaviour to be encouraged.

Critics argue that the majority’s disapproval was directed not at sadomasochism itself, but at homosexual sadomasochism. Comparisons with Wilson, which involved a heterosexual couple, are frequently used to support this claim.

Social Utility

The Law Commission’s consultation paper Consent in the Criminal Law noted the inconsistency that harm inflicted for sexual gratification was impermissible, yet harm inflicted for religious reasons, such as flagellation, was not.

The House of Lords did not say that consensual harm was always unlawful; it recognised categories where harm was permitted, including surgery, ritual circumcision, tattooing, ear‑piercing and boxing.

The questions then pertinent are:

If harm is not absolutely prohibited, why is sexual sadomasochism treated differently? What qualities do the permitted activities possess that sadomasochism does not?

The likely answer is that the majority did not perceive any social utility in sadomasochistic sexual activity.

Lord Templeman described it as “evil”, Lord Jauncey suggested it was for Parliament to decide whether such acts should ever be lawful, with Lord Lowry stating that “those who inflict and suffer the injury wish to satisfy a perverted and depraved sexual desire. Sadomasochistic homosexual activity cannot be regarded as conducive to the enhancement of family life or the welfare of society.”

A Bestselling Book

In August 2012, The Independent reported that Fifty Shades of Grey was the UK’s bestselling book since records began, with 5.3 million copies sold.

If book sales loosely indicate public engagement with consensual sadomasochism, admittedly a speculative leap, then approximately eight per cent of the population purchased it, a significant figure.

Its popularity may suggest shifting attitudes towards sexuality. Perhaps fewer people now view consensual sadomasochism as “perverted and depraved,” and the topic is ready for reconsideration.

The legal principle in Brown is enduring, but the majority’s moral views may not be. If Brown were revisited today, society’s evolving attitudes towards sexual autonomy might be recognised, and private citizens might be permitted to enhance or enjoy their private lives in ways acceptable to them.