R v Brown
Can only consent to assault/battery (busy public place, sports etc.)
Implicit consent to the possibility of harm
Consenting to harm in surgery
R v Brown 1994:
o If A wounds B in a sadomasochistic encounter, can the person who consented actually consent to the harm?
o No one sought medical attention in the 10 year period
o It was in private and they all ‘consented’
o The videos were for private use
o Appellants:
- The conduct was about sexual activity, not violence
- The conduct was private and consensual
- Wasn’t in the public interest to classify it as ‘criminal’
o Crown:
- The conduct involved harm, which is unlawful
- This harm wasn’t within any public policy exceptions (e.g. sporting events in battery) that would call it lawful apart from OAPA 1861
- OAPA 1861 was made to stop harm to any person
o Ruled:
- Consent is not valid in these situations: ‘Sadomasochism is not only concerned with sex. Sadomasochism is also concerned with violence.’ Lord Templeman
- Can people decide what they want to do with their body?
- Age gap (40+ inflicting harm on 20 year olds)
- Danger things could get out of hand: ‘indulgence of cruelty by sadists and degradation of victims…’
- Other groups could be influenced and might not be as controlled: ‘must consider the possibility that these activities are practiced by others and by others who are not so controlled and responsible…’
- The judges said it’s up to Parliament to allow these activities to be an exception to public policy: ‘it is for Parliament with its accumulated wisdom…’ Lord Jauncey
- Minority said it was more about sex than violence and it concerns private morality (Lord Mustill and Lord Slynn)
- Minority was not convinced of risks referred to by the majority (infections not too serious); hypothetical groups referred to by the majority still may not exist, it’s not for the courts to say
- No evidence of dangers to public health
- It’s for Parliament to decide if it wished to legislate against these activities – not for the courts to act paternalistically (shouldn’t tell people what they can/can’t do) – only criminalise where there is a definitive reason to do so
- Minority said the participants wouldn’t know that it was illegal
- Moral cement: what interests of society should trump individual interests?
- If the state allows something, does that mean society approves of it?
o Principles of criminal law relevant to this case:
- Should treat people as autonomous beings who know what they are doing, and if they do wrong, they are responsible for their actions (principle of individual autonomy)
- People should be given fair warning that they may be prosecuted for their actions (principle of maximum certainty)
- If you will criminalise somebody, there needs to be a real reason for doing so: there needs to be a positive effect, or a reduction in this activity (principle of minimal criminalization)
- To what extent did the House recognize the importance of these principles?
- To what extent can these principles be reconciled?
Implicit consent to the possibility of harm
Consenting to harm in surgery
R v Brown 1994:
o If A wounds B in a sadomasochistic encounter, can the person who consented actually consent to the harm?
o No one sought medical attention in the 10 year period
o It was in private and they all ‘consented’
o The videos were for private use
o Appellants:
- The conduct was about sexual activity, not violence
- The conduct was private and consensual
- Wasn’t in the public interest to classify it as ‘criminal’
o Crown:
- The conduct involved harm, which is unlawful
- This harm wasn’t within any public policy exceptions (e.g. sporting events in battery) that would call it lawful apart from OAPA 1861
- OAPA 1861 was made to stop harm to any person
o Ruled:
- Consent is not valid in these situations: ‘Sadomasochism is not only concerned with sex. Sadomasochism is also concerned with violence.’ Lord Templeman
- Can people decide what they want to do with their body?
- Age gap (40+ inflicting harm on 20 year olds)
- Danger things could get out of hand: ‘indulgence of cruelty by sadists and degradation of victims…’
- Other groups could be influenced and might not be as controlled: ‘must consider the possibility that these activities are practiced by others and by others who are not so controlled and responsible…’
- The judges said it’s up to Parliament to allow these activities to be an exception to public policy: ‘it is for Parliament with its accumulated wisdom…’ Lord Jauncey
- Minority said it was more about sex than violence and it concerns private morality (Lord Mustill and Lord Slynn)
- Minority was not convinced of risks referred to by the majority (infections not too serious); hypothetical groups referred to by the majority still may not exist, it’s not for the courts to say
- No evidence of dangers to public health
- It’s for Parliament to decide if it wished to legislate against these activities – not for the courts to act paternalistically (shouldn’t tell people what they can/can’t do) – only criminalise where there is a definitive reason to do so
- Minority said the participants wouldn’t know that it was illegal
- Moral cement: what interests of society should trump individual interests?
- If the state allows something, does that mean society approves of it?
o Principles of criminal law relevant to this case:
- Should treat people as autonomous beings who know what they are doing, and if they do wrong, they are responsible for their actions (principle of individual autonomy)
- People should be given fair warning that they may be prosecuted for their actions (principle of maximum certainty)
- If you will criminalise somebody, there needs to be a real reason for doing so: there needs to be a positive effect, or a reduction in this activity (principle of minimal criminalization)
- To what extent did the House recognize the importance of these principles?
- To what extent can these principles be reconciled?