To what degree of harm should Article 8 protect the right of the individual to consent?

Of all the potential limbs of Article 8(2) it would seem that the most likely means by which a person might claim that the breach of their private life is not justified is on the grounds it was not ‘necessary in a democratic society’ to take such action. It is obvious, in say criminally prohibited sadomasochism, that such a prohibition will be ‘in accordance with the law’ and in order ‘to protect the health of others’. However, the real elements that an applicant would seek to attack are the moralistic and social grounds for such a prohibition (rather than say the more political-legal reasons), and a challenge to its necessity in a democratic society provides such a platform.    

‘Necessary in a democratic society’

Much has been made of the opening line of Article 8(2) with much contention resting upon what exactly is necessary in a democratic society. In considering the meaning of such a phrase the Court has often concluded that in order to fall within the parameters of ‘necessity’ various criteria need to be satisfied. First, the interference must correspond to a pressing social need. Second, the response must be proportionate to the legitimate aim pursued. Finally, the court would have regard for the ‘margin of appreciation’ and whether the national authorities had gone beyond the leeway afforded to them in adhering to the requirements of the convention.

‘Pressing social need’

In determining questions of a ‘pressing social need’ the Court accepted that one of the roles which the State is entitled to undertake is the regulation, by the way of the criminal law, of activities involving the infliction of physical harm, whether the activities occur during the course of sexual conduct or otherwise. In the first instance a determination of the level of harm that should be tolerated by the law in situations where the victim consents is a matter for the State concerned. However, the court has reasoned that the State must still have regard for a balance, on the one hand, between public health considerations and the general deterrent effect of the criminal law, and on the other hand, respect for the personal autonomy of the individual. Whilst there is balance between the State’s concerns and the autonomy of the individual in areas concerning crime and public health the State’s concerns are given much more weight than the individual’s autonomy, or rather there exists a quite wide ‘margin of appreciation’. The Court would effectively be weakening a State’s control in such areas if they created domestically unsanctioned exceptions based on the very different jurisprudence of the ECtHR and this could have a significantly detrimental effect on society as a whole.

The Court will also look at the seriousness of the harm when deciding exactly how pressing a social need is present. In those instances of sexual violence where the applicant’s actions were likened to ‘genital torture’ or ‘akin to acts of rape’ the Court held that these could not be ‘ignored as transient or trifling’. The difficulty that those seeking to use Article 8 to protect their right to consent to harm will face is that so often these cases are concerned with violence of some gravity. One could submit that this is obviously so for otherwise consent would most probably form a viable defence at domestic law. The inherent trap in this is that if the harm is too serious for domestic law to allow a defence it is more likely that the court will find that there existed a pressing social need to prohibit and punish such conduct.

‘Proportionate to a legitimate aim’

In addressing the issue of proportionality one must have regard for the measures taken against the applicants and their proportionality in relation to the seriousness of the offence. If we are to assume, as submitted above, that only those cases concerning violence of a certain gravity are relevant to an Article 8 claim then proportionality can be linked to the number of charges, the length of the sentence given or even the distance between the act and the charge. In all these instances it is likely that a domestic judicial system will have either precedent or strict guidelines as their guide which will no doubt be easy to justify in relation to proportionality.  

‘Margin of Appreciation’

In general the Court have concluded that the margin of appreciation ought to be wide in this context. Various reasons were offered in support of this proposition. First, the Court have argued that this is a necessity due to the complex and fundamental nature of consent within the criminal law. Second, Judge Petitti, in the Laskey case, suggested that the margin is wide in relation to questions of morals or problems of civil society and above all where the concern of the State was to afford better protection to others.    

One might well highlight the distinction between those cases with public health concerns and those without at this point. In the case of ADT v United Kingdom This case involved the prosecution for gross indecency of a male homosexual after he had produced a video of him and four other men performing sexual acts, the tape was produced for the applicant in the case. Firstly, the court (and one might say crucially) held that the video tape, with regard to production and viewing, fell under the concept of ‘private life’. Secondly they held that only a narrow margin of appreciation need to be applied because of ‘the absence of any public health considerations and the purely private nature of the action’. This led the court to find a violation of Article 8.

The importance of the State being allowed a wide margin of appreciation is crucial in any case, whether it be to do with consensual violence or phone tapping. If the Court does allow a wide margin then the applicant will have a very hard task indeed in proving that the State was operating outside the confines of Article 8(2). It would seem that whilst those activities which are criminal but not necessarily violent (such as gross indecency) the Court will not allow the State to intervene into the ‘private life’ of the applicant. However where there are ‘public health and public moral’ concerns then the Court allows the State a licence to intervene, and much of this is dependant upon the legal moralist conceptions of the criminal law that dictate the more serious the crime the more likely that the State must intervene.    

Legal Moralism and threats to society

It is submitted that the main jurisprudence, or rather the one idea that permeates the legal reasoning in this area, is based on a ‘legal moralist’ conception of the foundations of the criminal law. In cases such as Laskey the Court not only represented the actions of the accused as acts of violence, but as forms of violence that are to understood as acts so evil that they are not only a threat to the individual but threats to society.

This is based on the moral content of the criminal law; few would deny that actions prohibited by the criminal law such as violence or theft have the founding for their prohibition in a moral code. It is this inter-connected relationship between morality and the criminal law that is crucial to the ECtHR’s decision to leave such matters to the determination of national authorities. Each Member State is founded upon its own unique moral code, in the same way that each society offers different cultures. Therefore, when it is submitted that something ‘immoral’ has been done it is supposed to offend against the community as a whole. A line has to be drawn between that which society will allow, or turn a blind eye, or condemn informally and that which it will condemn by the way of the criminal law. Lord Devlin offered a measure as the ‘depth of disgust’. Another, offered by Wilson, is that of the authority being ‘trumped’ where the activity is against the ‘public interest’. In the case of Brown Lord Mustill dissented on the issue of where the line was to be drawn. He argued that such questions were questions of ‘private morality’ unrelated to the Lords opinion on ‘sexual matters’ or even their own ‘moral code’. His argument was founded on the individual’s ‘right to live his life as he may choose’ and that the State should only interfere ‘to ensure a balance between the…special interests of the individual against the general interests of the community as a whole’.  

Lord Mustill highlights a tension between this individual ‘private morality’ and the States duty to regulate against actions which might offend society. It would seem that this returns back to the convention and issues surrounding ‘privacy’. The only justification that the State can give in regulating in areas of consensual violence is that it would harm society as a whole to leave such actions go unpunished. Lord Mustill seems to be articulating the idea that whilst the State should protect the values of society there are areas that it should not encroach upon. This is the highly complex area of ‘privacy’, the very same concept that Article 8 is supposed to protect.    

Privacy    

As the opening quote of this essay articulates, privacy on its own cannot provide an answer to those seeking to use Article 8 to protect their right to consent to violence and this can be perceived as being quite problematic. Privacy is a set of juridical terms and conditions according to which human relations and disputes about those relations are given particular juridical form. While the form itself gives those human relations particular meaning and shape it does not necessarily produce either a single or an inevitable outcome. The juridical terms and conditions give voices to a range of other factors and at the same time mediate them.

With issues of ‘consensual violence’ inherently failing the tests of Article 8(2) and also the operation of the ‘margin of appreciation’ there seems to be a real limit on the scope of privacy. If one is seeking to criticise such a limitation one only need to highlight the purpose of human rights. It can be argued that they are a means of protecting the very humanity of all, however is the humanity of those who derive pleasure from the consensual giving and receiving of pain worthy of recognition? In cases so far it would seem that the Court has denied individuals this humanity. Judge Pettiti provides the clearest articulation of such a view, in his suggestion that ‘The protection of private life means the protection of a person’s intimacy and dignity, not the protection of his baseness or the promotion of criminal immorality’

         

The difficulty in this argument is that it has no regard either for society or the concerns of the State concerned. It is a highly provocative method to challenge the very foundation of human rights in this instance in the failing to protect the humanity of those ‘different’. For it was in the Laskey case that the applicants argued that their sexual personality was an expression of both their private lives and their individuality. However, there are only a few rights which are 'absolute’ and this is for good reason. One must accept in any human rights jurisprudence that there must always be a balance, usually the rules of society against the desires of the individual.

Judge Pettit’s considerations (above) are correct in one sense but seemingly very lacking in another. Whilst it is correct to indicate that in considerations of a person’s private life one does not want the issue to be clouded by any stigma that might be attached to the conduct in question. However, what he fails to accept is the role that the State must play in any such consideration. It is not so much a ‘protection of his baseness’ that the State is concerned with, rather the upholding of a standard to which society must conform.      

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A conclusion

Privacy vs Legal Moralism

The overwhelming tension in this area of law, as so often in human rights cases, is between the individual’s right to autonomy against the State’s right to regulate. It is submitted that the ECtHR’s decision to leave alone questions of quantum in relation to consensual violence was correct. The basis for such a decision can be found in legal moralist theory, a reflection of the necessity for each country to regulate its own society in accordance with its own principles and values. The tension comes from within the convention as it legislates that individuals are allowed ‘respect for their private life’ and this easily comes into conflict with a State’s need to regulate.

Article 8(2) dominates

Whilst one can make a case under ‘necessity in a democratic society’ it is more than likely that acts of gratuitous violence will be held to be ‘necessarily’ prevented. It is the gravity of the violence that triggers ‘public health’ concerns and also makes it more likely that there ‘is a pressing social need’ to prevent such behaviour. All these are likely to be engaged because any claim to the ECtHR that is seeking to have a right to consent to harm protected will be for fairly serious harm, otherwise the defence of consent would operate at domestic level, and the more serious the harm the more likely the Court are to find that public health and public moral concerns are aroused.  

Therefore one may conclude that the degree of harm that Article 8 should protect is included as part of Article 8(2). It is not for the Court to guarantee individuals a private life completely free of interference from a State authority, rather, to ensure that when there is interference it is in line with the convention.

 

     

 

 

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