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Sadomasochism following R v Brown: Domestic Violence or Sexual Autonomy?

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About The Author

Sarah Barber (Guest Contributor)

Sarah is an aspiring barrister. She studied law at the University of Southampton. Sarah recently completed the BPTC at the University of Law, London. She has a particular interest in family law issues and now works for a local authority providing legal support in care proceedings. Sarah's other interests include singing for the Military Wives Choir and writing a parenting blog.

The question whether the defence of consent should be extended to the consequences of sado-masochistic encounters can only be decided by consideration of policy and public interest.

Lord Templeman

The infamous case of R v Brown [1994] led to discussions in England and Wales as to the social attitudes towards sadomasochism, and whether or not these attitudes constituted sufficient legal foundations for extending the scope of the physical assault offences under the Offences Against the Person Act 1861 (OAPA 1981). In an attempt to justifiy the outcome of R v Brown [1994], Joel Feinberg has stated that 'the need to prevent harm (public or private) to parties other than the actor is always an appropriate reason for legal coercion'. That need to prevent harm is intertwined with the notion of social taboo other social attitudes towards the issues at hand.

Since R v Brown [1994] was heard by the House of Lords and the European Court of Human Rights (ECtHR) in the 1990s, academic debate has dedicated itself to considering the role of context explicitly, using the litigation as a benchmark by which all cases involving either heterosexual or homosexual sadomasochist behaviour are compared. This article will explore the way in which sexual acts are perceived in wider society following the landmark ruling in R v Brown [1994] compared with modern representations of sadomasochism in the media.

The Implications of R v Brown for Heterosexual Sadomasochism

The defendants in R v Brown [1994] were a group of homosexual men who, for years, had been engaging in sexual activity in private. These acts were severely violent, including the nailing of foreskins to wooden boards for sexual pleasure. During a police investigation into other activities, video recordings of the sexual acts came into police possession, and the men were subsequently charged with actual bodily harm contrary to Section 47 of the OAPA 1861 and unlawful wounding contrary to Section 20 of the OAPA 1861.

In addition, one of the group was a 15 year old boy. As such, the Court of Appeal (CA) considered that these ‘sadists’, as they were called, 'were responsible in part for the corruption of a youth'.

Although the case dealt solely with a group of homosexual men engaged in sadomasochism, R v Brown [1994] necessarily had implications for participation in consensual sadomasochism more generally. It is a widely accepted principle of English law that consent is a defence to minor bodily harm. However, this litigation qualified the instances in which consent would be a defence, with Lord Templeman in R v Brown [1994] observing that:

The question whether the defence of consent should be extended to the consequences of sado-masochistic encounters can only be decided by consideration of policy and public interest.

The consideration of the public interest in answering the question of whether one can consent to sadomasochism is inherently biased in itself, and engages many of the criticisms advanced by Leon Kass in allowing the so-called ‘yuck factor’ to play a part in judicial proceedings. Indeed, it is noteworthy that the House of Lords in R v Brown [1994] consisted of heterosexual, white males, and the judgment was given at a time when homosexuality was less widely accepted than it is now.

Certainly, the overt disgust expressed by some of the Law Lords clearly demonstrated how the judiciary’s own values and acceptance (or, rather, lack thereof) of either homosexuality or sadomasochism, let alone a combination of both, impacted on the outcome of these proceedings. As noted by Elaine Craig:

The justifications for imposing legal rules that limit capacity to consent to sexual touching are often different than the justification for the legal rule prohibiting unwanted sexual touching.

However, in R v Brown [1994] it is arguable that this is exactly the intention of the majority: limiting capacity to consent. Such an infringement of liberty and individual rights has a significant impact on consent in any context. Despite this, the case law subsequent to R v Brown [1994] demonstrates that, in fact, the context of heterosexual sadomasochist relationships are understood in English law to fall into the category of the exercise of sexual autonomy, rather than violently inflicted bodily harm under the OAPA 1861.

The case of R v Wilson (1996) 2 Cr App Rep 241 demonstrates this difference in treatment. This case concerned Alan Wilson (A), who had branded his initials onto his wife - Julie's (J) - buttocks at her request; the wounds became infected and the husband was subsequently charged with assault occasioning bodily harm under Section 47 of the OAPA 1861 despite the wife consenting to the act.

The Court of Appeal quashed A's conviction, with Russell LJ advancing four reasons why the earlier case of R v Brown [1994] could be distinguished, and thus did not apply to the facts of R v Wilson (1996) 2 Cr App Rep 241 . Firstly, J consented to the act; secondly, the act was analogous to tattooing (one of the permitted acts of bodily harm to which consent is a defence under R v Brown [1994]); thirdly, there was no aggressive or sexual intent from A; and finally, it was not in the public interest to interfere in private marital relations.

A questionable aspect of Russell LJ’s justifications for distinguishing R v Wilson (1996) 2 Cr App Rep 241 from that of R v Brown [1994] is the emphasis placed on Mrs Wilson’s being a competent adult capable of consenting to the act. By using this line of reasoning, Russell LJ implies that the men in R v Brown [1994] were not competent or capable of consenting to the harm, due to the context of the harm taking place outside of a marital relationship. Russell LJ's final justification was also grounded in similar heteronormativity: that the marital relationship exists in a private sphere outside of the public interest. It raises the question: should the private setting of the sexual activities in R v Brown [1994] not also have benefited from the same element of privacy?

This line of reasoning – that marital relationships hold a unique form of privacy – returns to the dangerous territory of the marital rape exemption that was removed in favour of protecting vulnerable women. As such, many sex-positive feminists commend works such as Secretary and Fifty Shades of Grey for their representations of the female pursuit of desire traditionally considered ‘taboo’. However, Brenda Cossman notes that these desires are still:

[D]omesticated through the discourses of marriage [and] legitimated and contained within a heteronormative world.

Furthermore, there is at least one clear instance of rape in the Fifty Shades of Grey novel, in addition to a litany of other sexual offences; such acts, however, are normalised in the text, likely due to the fact that they take place within a hyperbolised heterosexual relationship. As such, the context of the heterosexual marital narrative is absolutely fundamental to societal and judicial acceptance of sadomasochism, romanticising what is and should be considered abuse, whereas homosexuality does not afford the same contextually romantic narrative.

However, it does appear that English law recognised the inconsistencies that favour of heterosexual married couples in this line of precedent in the case of R v Emmett [1999]. This involved sadomasochist activity in a heterosexual, cohabitational – as such, unmarried – relationship. When upholding the conviction of Mr Emmett for assault, the Court of Appeal drew attention to the supposed irrelevance of the context of the relationship and stringently applied the precedent from R v Brown [1994], though Wright J did acknowledge that 'since the prosecution was launched, they [the defendant and his partner] have married each other'.

Umni Khan addressed this statement as substantial proof that the courts of England and Wales are still preoccupied with the notion of marriage, intimating that:

[W]hile being married, heterosexual, and monogamous does not completely immunize a couple from conviction in Britain, it can apparently buy some leniency.

The case law and academic commentaries therefore do suggest that, in England and Wales at least, the context of the relationship and societal attitudes do contribute magnanimously to the way in which the courts will categorise sadomasochism.

Canadian Attitudes to Sadomasochism

By way of comparison, the Canadian case of R v JA [2011] presents a far more balanced view of heterosexual sadomasochism. Although presenting a rather paternalistic legal principle, it is clear that the Canadian courts agree with John Stuart Mill’s assertion that:

[T]he only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.

R v JA [2011] involved erotic asphyxiation and sexual contact (and penetration) whilst the victim, KD, was unconscious. The assertions of prior consent as a defence to the sexual contact were arguably rightly refused (despite the fact that KD attempted to revoke her complaint of non-consensual sexual activity after the act had taken place) as there is clear precedent – like the English case of R v Bree [2007] – within the Commonwealth that consent cannot be revoked, or given, with hindsight.

The consideration of McLachlin CJ that KD had no way of knowing what occurred while she was unconscious justifies the requirement for ongoing consent in the context of protecting victims of sexual abuse worldwide. However, sex-positive feminist theory argues for the acceptability of consenting to sadomasochism in advance, which would enable the couples in these agreements to engage in sexual activity while unconscious. The ruling in R v JA [2011] prevents these arrangements from constituting consensual sex, as the judiciary recognised that during a period of unconsciousness a person is not able to consent to any sexual act, whether pre-agreed or not.

Commendably, the judgment in R v JA [2011] does not consider marital status, yet the contextual elements regarding society generally and the previous history of JA in his convictions for violence help to characterise this relationship as one of domestic violence rather than sexual autonomy. A more carceral feminist approach is taken in the judgment, enhancing a woman’s power to say no at any point throughout a sexual encounter, yet critically speaking this could have implications for women within the context of sexual scripts.

For example, much in the same way that gender stereotypes can contribute to regimented conformity within the perception of that ‘gender’, sexual scripts reinforce the idea of women as submissive, and men as dominant, within the heterosexual context. This is further considered by David Gurnham, who explains that:

 Women are… less driven by the need for sexual satisfaction and more attuned to a sense of vulnerability.

The outcomes of cases such as R v JA [2011] enhance the vulnerable perception of women in society as a group that needs protection. Yet this contention ignores the ability of the fully competent woman to consent, placing more weight on the societal context of sadomasochism.

Conclusion

While it is clear in English law that the context of the heterosexual marital relationship plays an important role in determining whether a conviction will be imposed for sadomasochist relations (despite denial by the courts that it does so), the Canadian jurisprudence and academic commentary stemming from each illustrates that the contexts of societal values in general and the individual contexts of the relationships have as important a role in determining whether or not to convict.

The protection of the ‘victim’ in these cases appears to be paramount, with that principle always extending beyond the scope of the case at hand, though conveniently denying the "victim" their autonomy to consent to acts of a sadomasochist nature.

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Tagged: Criminal Law, Equality, Human Rights, LGBT, Sexual Offences

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