R v Brown (Research) PDF

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Research on the case R v Brown...

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R v Brown http://www.keepcalmtalklaw.co.uk/sadomasochism-following-r-v-brown-domestic-violence-or-sex ual-autonomy-/ ‘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 justify 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. …

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.’ WORKSHOP The aim of this workshop is that you read a case in its entirety from the law reports and get a feel for how a case is decided. You should be able to see the value that each judge provides, including the minority, in helping to bring about a reasoned decision – one that you may not necessarily agree with. Many of you will, as yet, have very little legal knowledge but that should not prevent you from considering these questions – at this stage I would like you to bring your opinions and thoughts forward, where appropriate – indeed, do not bring forward any arguments that rely on any legal knowledge you have which comes from outside of this case. This is a workshop about reading this case, not criminal law more widely. I would like you to read R v Brown – a case about a group of men who carried out sado-masochistic sexual violence upon each other. The case can be read from the law reports in the Brotherton library or electronically, but for the purposes of this session it is available on the Foundations of Law page on Minerva. It is a long judgment – I wouldn’t print it out but if you wish to read a hard copy then look it up in the Law Reports in the library. It can be found in various volumes of Law Reports, for example, The Weekly Law Reports [1993] volume 2 at page 556. Appeal Cases [1994] volume 1 at page 212. Criminal Appeal Reports (1993) Volume 97 at page 44 These are all reports of the same case – only refer to one of them! You will be instructed on how to conduct efficient legal research next week but, for now, this information should be enough for you to find the case. Note: The page references below are to the Appeal Cases Report (and the one on Minerva). The case will take some time to read – it is supposed to be that way! You will get better at this, but for now there is no substitute for getting on with it. You MUST read this full version, not a summary. A summary will miss out some of the reasoning – and that is what we are particularly interested in – not so much the outcome, but why and how the outcome was reached.

Remember what you have been told about reading cases in the lectures. The questions below are designed to help you work your way through the case and think about some of the more salient issues. Prepare some brief thoughts before the workshop. This quick summary of the basic position and key terms will help you to understand the case: Assault: Defendant (D) recklessly or intentionally causes the victim (V) to apprehend an imminent use of force e.g. A approaches B in an intimidating manner Battery: D recklessly/intentionally touches or applies force to V e.g. A smacks B’s face s.47 Offences Against the Person Act 1861: D recklessly/intentionally commits an assault/battery which causes V to suffer actual bodily harm e.g. A punches B’s ear, causing it to bruise s.20 OAPA 1861: D recklessly/intentionally unlawfully wounds V or inflicts grievous bodily harm (GBH) on V e.g. A cuts B’s hand with a knife s.18 OAPA 1861: D unlawfully wounds/causes GBH to V with the intention to do so e.g. A drops a concrete block on B’s legs, breaking them The general rule is that the consent of a victim is a defence to an assault or battery, but not to an offence involving actual bodily harm or more serious injury. However, in certain circumstances consent will provide a defence to an offence involving actual bodily harm or more serious injury. Questions. •

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What was the key issue for the House of Lords to decide? If consensual sadomasochistic acts in the privacy of one’s own home between homosexual men is a crime. Which judges were involved in the appeal? Lord Templeman, Lord Jauncey, Lord Lowry, Lord Mustill, Lord Slynn. Who comprised the majority/minority? Lord Mustill and Lord Slynn comprised the minority.

At p.231C his Lordship states: In the present case, each of the appellants intentionally inflicted violence upon another (to whom I refer as "the victim") with the consent of the victim and thereby occasioned actual bodily harm or in some cases wounding or grievous bodily harm. Each appellant was therefore guilty of an offence under section 47 or section 20 of the Act of 1861 unless the consent of the victim was effective to prevent the commission of the offence or effective to constitute a defence to the charge. • With regard to this last sentence what difference does it make whether consent prevents an offence occurring at all or is a defence to it? This is a tricky question – don’t worry if you don’t have an answer but give some thought as to what it might be. • How does his Lordship narrow down his own enquiry at p.234H (by only looking at which particular aspect)? Having done so, then see the comment at p.236G. To what extent do you

think the analysis of the law (cases) has led his Lordship to this position or is it a case of ex post facto (retrospective) reasoning – in other words, trying to justify a predetermined position? ● A very heteronormative ruling which suggests that if the subjects had been of different sexes, the judgement would’ve been different. Homosexual activities with multiple people are still unlawful, yet this overlooks the bodily harm caused to the ‘victims’ and instead focuses on the sexual orientations of the subjects. • Refer to p.237G. Do you think it appropriate that a decision is made on what is good for ‘society’? What can that mean? • Looking back to p.234H his Lordship spoke of needing to answer the question by considering public policy. The needs of society more widely might be considered to be one aspect of public policy – can you identify others (see, in particular, p.255G-H; p.246A and 246C; p.255G-256A). • Consider the comments at 246F – do you agree that for such conduct to be lawful then Parliament should positively state such? ● They should leave the legalities of such issues to be vague to prevent having to be overly descriptive or exclusive of certain activities. • Look at p.256G – on what basis does his Lordship immediately express doubts about the case? ● That the case should not be a criminal case of violence, but instead one of private sexual relations, if one at all. • Some sports such as football and rugby have deliberate contact as an inevitable ingredient of the sport. Can there be a distinction between these and the sado-masochism involved in Brown (see p.266A-E)? ● If footballers can consent to GBH, then why can’t this group of homosexuals? Both are done for pleasure, except one is done in private and the other in public. However, a line must be decided by the law as to when consensual violence becomes too severe, with the risk of permanent injury. • See p.273A-274G – do you agree? Would you consider the issue to be one for Parliament to determine? When you read a case you should be looking not only at the decision and its reasoning, but the impact the case might have more widely within the legal context. As yet, you do not have a detailed knowledge of the wider legal context, but you can think about the wider implications of the case from a practical perspective. For example, • Is there such a thing as a shared morality that society should seek to enforce through criminal sanctions? Where might we derive a basic set of values from? • How can boxing be justified following this case?

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You can considered the time that this judgement took place and compare it to how opinions may have now changed since then. Boxing also has a ref that can restrict and regulate the violence at any time if it becomes too severe. Would (should) the giving of a ‘love bite’ attract a criminal punishment? Not if it is entirely consensual. Is this an appropriate area to be shaped by unrepresentative judges? When the law begins to regulate people’s personal lives it can quickly become invasive, with the law losing sight of what it intends to protect. What was the point of the prosecution? Who would benefit from it? Who was being protected? How?...