criminal Essay

R v Wilson contrasts with the above cases.  Here, a wife asked her husband to brand her buttocks with a knife because he did not know how to tattoo her.  The court acquitted the defendant of an s.47 charge, stating that branding was no more dangerous than tattooing.  An implicit policy agenda appears to figure in the decision following the verdict in R v Emmett, where the defendant was convicted under s.47 OAPA after asphyxiating and burning his fiancé for pleasure.  The court ruled this to be distinct from the facts of Wilson because the injuries “plainly went far beyond that…in Wilson”.  It seems that public policy did not demand that the activity in Wilson be criminalised; it did in Emmett.  This draws a distinction between the level of consent that applies to married and unmarried couples.  Indeed, in Wilson, Russell LJ stated that sado-masochism would probably be lawful if consenting married couples engaged in it. This is a prejudice that should not be allowed.  However, Emmett did serve to suppress some of the criticism levelled at Brown, namely that it contained bias against homosexuals, by convicting the defendant.

Brown also established exceptional cases in which consent acts as a defence, despite the infliction of assault occasioning actual bodily harm under s.47 OAPA and unlawful wounding under s. 20.  These include lawful sports and ‘rough horseplay’.  The latter takes the ‘boys will be boys’ attitude, allowing injuries caused during ‘manly games’.  This was evident in the acquittal of the defendant in R v Aitken, who burnt thirty-five per cent of his friend’s body.  A possible reason for this is the lack of a sexual element but it is difficult to comprehend how, in an area dominated by public policy, this activity is in the public interest.  The legality of boxing was also considered; the court held that, applying R v Coney, boxing was a lawful sport and it would be contrary to the public interest to criminalise it.  It seems inconsistent that sado-masochistic acts are criminalised; yet sport potentially leading to death or grievous bodily harm is held to be of public interest.

It is evident that public policy is the key influence over the law in the area of consent, as it can override even private actions.  There is debate as to whether this is acceptable.  The libertarian view of Hart and the authoritarian stance of Devlin provide commentary on this topic.  The former states that society should not interfere with individual liberty by imposing restrictions on behaviour, unless the prevention of harm to others necessitates it.  The latter, in contrast, sees suppression of vice as the business of the law.  Authoritarianism was the approach adopted by the majority in Brown.  However, Lord Mustill, favouring libertarianism in his dissent, claimed that this standpoint contravened Article 8 of the European Convention on Human Rights, the right to privacy.  Lord Templeman rejected this view, concentrating on protecting society from violence.  The difference of opinion in this sphere seems to undermine the common law.  The narrow majority in Brown supports this; it demonstrates uncertainty in the law.  The majority were not willing to create a new defence of consent for the purposes of sado-masochism because there was no good reason for doing so.  Templeman also advanced technical reasons for not extending the common law, stating that it would create an anomalous distinction within s.20 OAPA, whereby consent would be a defence to wounding but not to grievous bodily harm.  He further asserted that, on grounds of policy, the acts were immoral and deserved to be criminalised.

Problems result from this.  Firstly, Lord Mustill disagrees with Lord Templeman’s statement, declaring that the “decks were clear” for the court to clear up the issue of consent within s.47 OAPA.  Criticism has been levelled at the existing statute, branding it “ripe for reform”.  The question is raised as to why a person should be convicted because of an outdated statute; it is unjust and unprincipled.  Furthermore, the culpability of the defendants was not examined.  Instead, the culpability of sado-masochism as a concept seemed to be on trial.  This is dissatisfactory and prejudiced against the defendants because of their sexual preferences.  It seems that, in Brown, the court never acknowledged the sexual nature of sado-masochism, focusing on the violence of assault, despite the two concepts being entirely separate.  Thus, the court has ignored an aspect central to the case and proved itself incompetent.  Each member of the court expressed their distaste for the defendants’ activities, yet only the dissenting judges decided the case on the law rather than on morality; this is highly inconsistent.  This is emphasised in the distinction between Brown and Wilson.  The cases were decided on policy grounds, the infliction of harm for sexual gratification outside marriage falling outside the ambit of consent, whilst harm for personal adornment within marital bonds was held lawful.  These cases were not decided on any clear principle of law, simply the public interest in the eyes of the court.  In Wilson, it was held that the husband’s desire to give his wife something she wanted was analogous to tattooing and, therefore, lawful.  However, desire is conjoined to motive, an irrelevance to liability.  Instead, culpability should be determined by the intention of the defendant.  Therefore, the principles in the cases of Brown, Wilson and Emmett were the same.  The people involved wanted the acts to happen; the court failed to understand that people would enjoy pain for sexual pleasure.  This stresses an inconsistency in the law.  A-G’s Reference supports this statement.  The issue of consent in the case was affirmed by reference to R v Savage.  However, this case failed to address the issue of consent, demonstrating that the common law is founded on unclear principles.

Another contentious issue throughout the common law on consent is where the line should be drawn in terms of the maximum level of harm that people can consent to.  The court in Brown ruled that assault occasioning actual bodily harm or greater could not be consented to unless there was a good reason for it.  However, this is common law authority.  Therefore, if there is no express legislation to criminalise sado-masochistic activities, why should the law be allowed to interfere in private consensual acts?  It seems wrong to convict someone for carrying out the ‘victim’s’ wishes; no rights have been infringed and so it is purely an issue for policy to decide upon.  It seems that policy provides a useful tool for the court to impose its moral opinions.  This conflicts with the judgement in A-G’s Reference, which stated that consent as to the act, and whether the act was one that could be legally consented to, was a matter of law for the court to decide.

In terms of the rule of law, the common law authority contravenes it.  All laws should be open, prospective and clear, meaning that people should be able to determine the law in order to abide by it.  However, the current law is so inconsistent and devoid of principle that it fails to guide people as to what they are permitted to do.  The independence of the judiciary must also be guaranteed, and there must be an absence of bias.  The conflicting decisions in Brown, Wilson and Emmett seem to highlight a distinct bias towards married couples.  The independence of the judiciary is also questionable because they appear to base their decisions on pre-conceived morals, not the law.  This indicates that the common law is unclear, devoid of principle and riddled with inconsistency.  If people are unaware of their fundamental rights, it restricts their freedom and breaches the basic principles of democracy and the rule of law.  This casts illegitimacy over Parliament and the judiciary, as they are responsible for ensuring that we live in a non-discriminatory environment.

Thus, “the existing law is…inadequate”.  A more appropriate standard would be to impose liability only if the force applied is greater than that assumed by the recipient, and this results from an intention to exceed the limits, or recklessness as to either the level of harm, or continuation of the act after consent is withdrawn.  This would avoid convicting those who exceed the expected harm by mischance.  The Law Commission has also suggested extending the boundary of consensual activity to anything below ‘serious disabling injury’, as defined in paragraph 4.51 of Consultation Paper No. 134.  This would allow more scope for consensual acts to occur, such as sado-masochism, without fear of breaking the law.  

In conclusion, analysis of the case law has provided a mechanism for assessing the effectiveness of the common law regarding consent.  The respective case law has highlighted great uncertainty, a lack of principle, some prejudice and inconsistency; if the rule of law is to be respected within a democracy, reform must ensue.  Putting the issue of consent on a statutory basis would adhere to the rule of law and expectations of a democracy, as people would be aware of their rights.  Although an incremental approach to the law of consent would also provide benefits, namely that the courts could adapt to the changing opinions of society when delivering judgements, a repeat of decisions such as Brown cannot be risked.  The case law illustrates that consent is a complicated matter.  It would seem favourable to have a statutory basis to rely upon, to guide the courts towards clearly defined decisions, which are consistent, lack prejudice and prevent miscarriages of justice.

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