Critically discuss R v Brown PDF

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STUDENT ID: 51982274 Critically discuss the case of R v Brown (1994) 1 AC 212. The case of R v Brown (1994) demonstrates problems surrounding the authority of consent and whether it could be disregarded in certain circumstances, which has led to a variety of exceptions regarding consent. This case is highly controversial, and this essay will discuss R v Brown highlighting, the significance of consent, the criticisms, and following cases regarding consent. In this case, five homosexual men – the appellants - willingly partook in sexual activity. The sexual acts were of a violent nature, which is called sadomasochism. These actions included genital torture, but all five appellants involved had consented to such actions. The sexual activities occurred in private, but they were recorded for their own enjoyment. The appellants were convicted of malicious wounding and assault occasioning actual bodily harm, under section 20 and 47 of the Offences against the Person Act 1861. This case raised the question as to whether consent could be used as a defence for the appellants. During the first trial, it was held that the consent of the victim was irrelevant, and it did not count for a defence. After this, the appellants appealed, with the argument that a person is not guilty of assault if the act was consensual and occurred privately. This argument, however, was dismissed by The Court of Appeal. The appellants then appealed to the House of Lords which stated that sadomasochistic act which result in actual bodily harm amounts to assault, even if the act was consensual. The House of Lords decided "Where A wounds or assaults B occasioning him actual bodily harm in the course of a sadomasochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A's guilt under section 20 and section 47 of the 1861, Offences Against the Person Act?" It was held that this decision was made in the interests of public policy, therefore the appeal was dismissed with a 3:2 majority. The law became that consensual assault causing ‘harm’ above the level of assault is unlawful unless such behaviour is included in one of the specific categories produced by common law. These activities include: sport, dangerous exhibition and bravado, rough horseplay, surgery, tattoos and piercings, religious flagellation, infection due to intimacy. In the case of R v Wilson (1997), a wife consented to be branded on her buttock with a hot butter knife by her husband. However, she had to go to hospital because her skin got infected, and the incident was reported. The husband was charged with Actual Bodily Harm under s.47 OAPA. The husband appealed and he was successful, and the wife’s consent was seen as valid, and it was not his attention to cause her pain. The Court also saw the branding similar to tattooing rather than sexual gratification. They also held since the actions occurred in the privacy of a matrimonial home, this was not a matter for public authority. However, this case is often seen as contradicting R v Brown, therefore questioning whether prejudice could have occurred in R v Brown. Both defendants were convicted of s.47, however, the case including a heterosexual couple was successfully appealed, but the homosexual were not. There is an argument suggesting that there was prejudice swayed the decision, as Lord Lowry, who stated he would not make an exclusion for “sadomasochistic homosexual activity” therefore highlighting the decision may have been swayed due to the sexual orientation of the defendant. On the other hand, it is also agreed that the decision reached was in the interest of the public. Lord Templeman reasoned “there was no control over the harm that was to be inflicted”. He pointed out that there are rules that apply to sports which maintain the violence, and as well as this medical attention is sought if injury occurs. In sadomasochism, injury is intentional and the focus of the

STUDENT ID: 51982274 activity. In addition, activities involved a risk of accelerating the spread of HIV, and wounds becoming septic, inflicting pain and injury beyond what those had consented. In R v Slingsby [1995], the defendant penetrated his sexual partner’s vagina with his fingers, but accidentally cut her with a ring he was wearing. The victim developed septicaemia and died. The defendant was charged with manslaughter under section 20 and 47 OAPA but was acquitted. The difference between Brown and Slingsby, was that the harm caused in Slingsby was accidental, while in Brown the harm was intentionally. As well as this R v Emmett (1999) shows a heterosexual couple that engaged in sadomasochistic behaviour, and consent was also deemed irrelevant, due to intent to harm. Most of these cases where the appeals are successful are distinguished from Brown, by the fact that the harm caused is not intentional, while in Brown the mens rea to harm is present. As well as this in Wilson, the activity they were partaking in was not sexual. However, in R v Lock (2013), a couple re-enacted a sadomasochistic scenario from a book, in where the woman was treated like a dog and was whipped, causing bruising on the buttocks and neck. However, unlike Brown, the defendant was acquitted as this was a consensual activity between adults. Lock argued that they had a safe word, but this was true in the case of Brown as well, which is very contradicting. To conclude, the decision made in R v Brown was not influenced by prejudice, as it is seen in R v Emmett that it is not only homosexual sadomasochistic behaviour that accounts as harmful, but heterosexual too. Additionally, it is clear that the judges were concerned of the harmful nature of the actions, as the judges express their concerns of others, and express moral outrage at the appellants, calling the activities an ‘indulgence of cruelty’. However, the case of Brown is outdated, and it has been suggested that public attitudes towards sexual matters have moved on from Brown, and that Courts should also move on from this case. The case of Lock shows that the defence of consent is inconsistent and exemptions that contradict the justification from Brown, determining that this restricts the ability of consent from individuals and therefore is need of reform....