By Sonya Clarke. 13th May 1996
(author's permission still sought)
In R v Brown , the House of Lords held that sado-masochistic acts committed in private that caused wounding and actual bodily harm, with the consent of the injured party, were offences under section 20 and section 47 of the Offences Against the Persons Act 1868. This was the widely publicised as the "Operation Spanner" case, the culmination of the prosecution of a group of men on the basis of video recordings of their meetings over a long period. During the meetings they performed homosexual sado-masochistic acts, including genital torture. It is the only major case in English law on this subject; there has been no comparible ruling before or since.
There are indications that the law on sado-masochism may change. Since Brown, the Law Commission has discussed the issues of consent and offences against the person in a consultation paper, and has recommended that control of public morality, decency and order be distinctly separate from the law of sexual offences and offences against the person, and that it should not be a criminal offence to non-permanently injure a person who is a capable adult and understands what is being done to him and freely consents to it. Earlier this year, a man who branded his name on his wife's bottom with her consent had his conviction for ABH quashed on appeal. The case of Brown will shortly be heard by the European Court of Human Rights ("the ECHR").
At present, however, Brown reflects the law, which is, briefly, as follows: While a person may consent to a common assault, he cannot consent to grievous bodily harm, although the law on actual bodily harm is less clear cut. The strict rule, under AG's Reference (No 6 of 1980), is that consent does not prevent criminal liability for an offence if ABH is caused. ABH is any hurt or injury (not only physical injury) calculated to interfere with the health or comfort of the victim. The rule stems from reasonable concerns that it is not in the public interest for people to go about causing each other ABH without good reason. There may be a good reason in some cases, such as when "blows are given in the course of friendly athletic contests [or] rough innocent horseplay". This includes boxing (but not bare knuckle prize fighting or pub brawling, even though the injuries sustained in a boxing match can be considerable), other properly conducted games and sports, reasonable surgical interference, dangerous exhibitions and lawful chastisement in correction.
Violence in the pursuit of sexual gratification is not mentioned. There were no certain precedents for the judgement in Brown, although, in Donovan  it was held that a caning given in a flagellation session by a man to a 17-year-old prostitute, with her consent, did not negate an assault. There have also been cases in which the courts have decided it is not in the public interest for people to injure each other in a fight. In Jones , however, the convictions of boys who tossed two other boys up into the air, causing a ruptured spleen and a broken arm, were quashed.
The European Convention on Human Rights provides in Article 8 that:
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
In Dudgeon v. the United Kingdom, the ECHR reviewed the legality of the law in Northern Ireland, since repealed, under which buggery and gross indecency between consenting males were criminal offences. The court stated that homosexual male conduct, and other forms of sexual conduct, should be regulated to some degree by the criminal law. To avoid a breach of Article 8, however, such regulation had to be "necessary". A restriction on the right in Article 8 would only be "necessary" if it was "proportionate to the legitimate aim pursued". The court found that the law was not necessary in this case to protect society and any benefit that it had was outweighed by the infringement of the privacy of those affected by the law. Dudgeon is distinct from Brown because of the considerable violence involved in Brown, which may affect the ECHR's judgement in the latter case.
The right to sexual privacy is a valid consideration. The acts committed by the appellates in Brown were performed in private, between fully consenting adults. The injuries, while more than trifling, were not permanent and there were no complaints to the police. The video tapes came to police attention by chance. The evidence they contained was not, however, deemed by the House of Lords to be a good enough reason to negate criminal liability for assault.
Libertarians argued that personal distaste at sexual violence and homosexuality coloured the judgement. It is true that the views of the Lords on homosexual sado-masochistic activity contrasted with the opinion of the appeal judge in the bottom-branding' case mentioned above, when ruling on heterosexual violence, that "Sexual activity between husband and wife in the privacy of the matrimonial home is not, in our judgement, a matter for criminal investigation, let alone criminal prosecution."
Even so, the Law Lords in Brown did consider the more relevant issues of privacy and violence, both of which are matters of public interest. Lord Lowry distinguished between incidental violence in games and sport and violence inflicted in the pursuit of cruelty, which to his mind was not in the public interest. The public interest and good reasons for violence were not conclusively defined and remain grey areas. It would be unwise to allow rights to privacy, sexual and otherwise, to be a blanket licence for acts of violence, regardless of consent. The parameters of acceptability and the balance in the public interest between privacy and protection from violence have not yet been clarified. The degree of violence and moral repugnance are probably key factors, and are likely to cause further controversy if the law is changed.