R v Brown [1994] 1 AC 212

• A group of homosexual sado-masochists were convicted of wounding under s.20 and all offences under s.47 of Offences Against the Person Act. 

• They appealed to CA on the basis that the victim of harm consented but CA dismissed their appeals.

• HL also dismissed their appeals on the basis that it was against public interest to allows people to hurt each other for “no good reason” (why is sexual fulfilment not a good reason?)

Lord Templeman

• Says that:

  1. Sado-masochism is not merely sexual, as contended, but is in fact violent which inflicts an unpredictable degree of damage (in the past excessive excitement had led to blood letting through which people had contracted AIDS, while instances of branding occurred). 

  2. The defence said that one may do as one pleases with one’s body. This is not true (mind altering drugs are illegal), while also being irrelevant (in this case it was several men inflicting damage on a boy’s body). 

  3. The line between consent and rape is very narrow, given that the masochist is generally tied up and, though he might ask others to stop, this would depend on the personalities and possibly level of excitement involved. 

  4. To allow a defence for this behaviour would glorify cruelty. 

• (Arguments 1,2,and 3 are very sound reasons for not allowing a defence of consent for sado-masochism, though 4 is not since a defence would not glorify it, merely legitimise it).

• Argument 1 is particularly strong given that one could easily foresee a situation in which death would occur where it got really out of hand (instances of branding, piercing penises with fish hooks, etc. show level of harm to which these people are prepared to go) and this would clearly be against public interest. 

Lord Mustill

• Dissented saying:

  1. That it is a matter of private morality, and whether or not we think morally wrong, disgusting etc, it is not the business of the law to regulate private sexual affairs.

     • This is true, but it does not negate concerns for the safety of those involved, which ,it is well established in, for example, the banning of class A drugs, IS the business of the state. This is different from contact sports as there is no referee or regulator

  2. Where problems do occur, e.g. a really serious death or harm, they may be prosecuted in the normal way

     • RIDICULOUS ARGUMENT! This is just such a case and yet Mustill is pushing for acquittal. 

  3. It is a bad argument proposed by Lord Jauncy, that there is a danger of young people being “corrupted into this practice” since whether or not it would be a “corruption” depends on whether or not it is legal, which is the point of investigation of this trial. 

     • True - also the moral argument is flawed so matters like “corruption” are irrelevant. 

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