R v Wilson [1996] 3 WLR 125

KEY POINTS

• Engaging in a consensual activity between a husband and wife within the confines of their private home should not be subjected to criminal investigation or prosecution. As a result, the defence of consent was considered valid in relation to s47 of the Offences Against the Person Act 1861.

• The principles pertaining to sado-masochism in R v Brown are not applicable in this case.

• Consent to sado-masochist acts in a marriage is a valid defence.

FACTS

• A man branded his wife’s buttocks with a hot knife. The judge said he was bound to convict because precedent suggested that such an infliction was not negated by consent. He was convicted of causing actual bodily harm.

• CA allowed the appeal saying that this was distinct from Brown since:

  1. There was no aggressive intent,

  2. Because the wife wanted it, not out of desire for pain, but as an adornment, not, according to CA, unlike jewellery,

  3. R v Brown was merely ruling on sado-masochism, whereas this was essentially similar to tattooing and lastly,

  4. It is not in the public interest that a husband and wife’s private activities should be regulated, whereas that is not the case of violent sado-masochists. 

COMMENTARY

• This judgement is probably fair in that the concern of safety for the individual in the sado-masochism was extreme, whereas this was a fairly harmless exercise (the public interest test provides a good distinction between those cases where harm is acceptable and where it is not).

• However, the aggressive intent argument is weak because in both Brown and Wilson there is an intent to cause at least actual bodily harm.

ORIGINAL ANALYSIS

• A man branded his wife’s buttocks with a hot knife.

• The judge said he was bound to convict because precedent suggested that such an infliction was not negated by consent. He was convicted of causing actual bodily harm.

• CA allowed the appeal saying that this was distinct from Brown since:

  1. There was no aggressive intent,

  2. Because the wife wanted it, not out of desire for pain, but as an adornment, not, according to CA, unlike jewellery,

  3. Brown was merely ruling on sado-masochism, whereas this was essentially similar to tattooing and lastly,

  4. It is not in the public interest that a husband and wife’s private activities should be regulated, whereas that is not the case of violent sado-masochists. 

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This judgement is probably fair in that the concern of safety for the individual in the sado-masochism was extreme, whereas this was fairly harmless exercise (the public interest test provides a good distinction between those cases where harm is acceptable and where it is not). However the aggressive intent argument is weak because in both Brown and Wilson there is an intent to cause at least actual bodily harm. 

This leaves the law uncertain - In Brown actual bodily harm leads to conviction despite consent, whereas in Wilson it is acquitted, when both, in reality had an aggressive intent (both at least foresaw the harm done to the victim), the only real difference being that the latter was between a man and wife.

In Emmett, where a man seriously injured his fiancée during S & M and was convicted (showing that the distinction was not because of the participant’s marital status). The court said that the true distinction is that Wilson was akin to a tattoo and therefore fell into that category as an exception, whereas Emmett and Brown did not fall into any of the categories in which consent can negative the crime of actual bodily harm or worse

RELATED CASES

• R v Brown