Brown

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Citation: Brown [1994] 1 AC 212.

This information can be found in the Textbook: Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 656-63.

Contents

Background facts

  • A group of men who engaged in consensual, sado-masochistic, homosexual activities were charged with unlawful and malicious wounding and assault occasioning actual bodily harm.
  • No victim had complained and the charges were laid on the strength of videotapes which police had found in the course of unrelated investigations.

Argument

  • The accused argued that every person has a right to deal with his body as he pleases.

Legal issues

Judgement

Majority Opinion (Lord Templeman):

  • There are circumstances where violence is not punishable because of consent even if it is intentionally inflicted and results in actual bodily harm.
  • However, this refers to consent to minor assaults and deemed consent to lawful activities; eg, surgery, ritual circumcision, tattooing, ear-piercing and violent sports including boxing.
  • It doesn't apply to unlawful activities such as fights and duels, where mutual consent does not prevent assault charges from being prosecuted.
  • The extent or level of the violence is also significant, citing Donovan,[1] which says that once a certain degree of violence has been reached, consent is immaterial.
  • The argument of the accused should not be accepted because it's not good policy and doesn't serve public interest: "it is an offence for a person to abuse his own body and mind by taking drugs... Suicide is no longer an offence but a person who assists another to commit suicide is guilty of murder or manslaughter".
  • There is a danger of infection (blood smearing activities), cruelty and the inclusion of cruelty to animals in the form of bestiality and that “It is not surprising that a victim does not complain to the police when the complaint would involve him in giving details of acts in which he participated. Doctors of course are subject to a code of confidentiality.”
  • In conclusion, the majority dismissed the appeal and upheld the convictions. “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.”

Dissenting Opinion (Lord Mustill):

  • The case should have been about the criminal law of private sexual relations rather than assault, if about anything at all. He examined a number of these instances:
  • The issue of consent should be viewed in consideration of the other “special” instances where the infliction of violence is considered both consensual and legal.
    • Prize-fighting, sparring and other such activities are accepted even though the risks are severe and life threatening.
    • In some sports, the “participant knows that his opponent will try to harm him, and [in] the milder sports... there is at most an acknowledgement that someone may be accidentally hurt".
    • In surgery, assault is lawful when there is actual consent or “the substitute for consent is deemed by the law to exist where an emergency creates a need for action”.
    • Lawful correction or physical harm for the purposes of parental discipline was held to have nothing to do with consent and merely to demonstrate that special exemptions to the use of violence seem to exist only because of society’s toleration.
  • The European Convention on Human Rights was noted to “clearly favour the right of the appellants to conduct their private lives undisturbed by the criminal law".
  • The public versus private distinction was noted as a possible basis for some precedents criminalising otherwise consensual assaults. In this case, the “assaults” took place in private “not only with the consent of the recipient but with his willing and glad co-operation; which is inflicted for the gratification of sexual desire, and not in a spirit of animosity or rage; and which is not engaged in for profit".
  • The conviction should be quashed.

References

  1. [1934] 2 KB 498.
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