CHAPTER 3: THE FORGING OF PUBLIC POLICY AND DEVELOPING SOCIAL
3.1 Introduction
In an attempt to decipher the criminal law’s perspective of consensual sadomasochism between adult partners within South Africa, the inspection of the international judicial precedent within the preceding chapter spurred the surfacing of public policy as a prominent consideration of a court’s inquiry of consensual harm caused. To the developing international considerations, prosecution of an injury caused by a consensual sadomasochistic act, bringing either actual or serious bodily harm, should not be tempered by the assessment of the harm alone. The developing trend for courts from both Egnland and Canada is to consider the hazy allure of the ever-changing principles of public policy. This chapter shall highlight the prominence of the application of public policy in reinforcing a prosecution for consensual sadomasochism, derived from the legal principles that have evolved within the relevant international spheres.
England’s affinity for applying public policy when assessing the harm caused by consensual sadomasochism shall be reviewed by the judicial viewpoints of ‘no good social use’ and ‘the public benefit’ of the consensual acts. These legal perspectives shall be contrasted to the current position of England regarding the demographics of the contemporary social sphere’s exposure to the sadomasochistic material and whether the prominence of such material may restrain the
60 spearheading of public policy in achieving a prosecution. Lastly, the influence of the pornography industry, depicting sadomasochistic and BDSM pornography within the public sphere, shall be interpreted in light of relevant legislative aids. This inquiry shall consider the possible influence that such material has upon the private sexual behaviour of the public.
The willingness of implementing the doctrine of public policy in sadomasochistic cases arising in the Canadian criminal law jurisprudence shall be mirrored by a similar orbit as that of English law. The Canadian law’s stance on the ‘social utility’ of the practice of sadomasochism shall be considered in light of sexual material available to the public at large, along with other contemporary cornerstones of relevant statutory and social intrigue. This consideration will be projected by the initial failure of the courts in departing from a consistent loop of blanket- interpretation to all sadomasochistic occurrences under past public policy considerations. This will pave the foundation of the criminal law jurisprudence of Canada regarding such occurrences by the eventual blossoming of the contemporary outlook that was brought forward in Regina v Price.293
Lastly, public policy considerations of South Africa will be interpreted in light of the Constitution and its supporting retinue of legal concepts that give effect to fundamental public policy considerations. This shall be drawn from the applicability of the boni mores criterion and the concept of Ubuntu as champions to public policy perspectives within South African law. The exploration will attempt to paint a clearer portrait of what the current public policy truly is and the reach of this concept to cases that involve harm to the public. This shall summon insight into the gravity of the legal moralism of the community at large, and whether public policy will be extenuated by South African courts in adding to the legal-arsenal of the State’s possible prosecution of acts that cause public harm. This, in turn, will spur the outlook of community harm and Constitutional imperatives of ensuring public safety. Finally, this will attempt to ascertain whether a South African court, if faced with a matter that brings such harm, would allow for the triumph of public policy considerations over the autonomous actions of the consenting adult partners.
Chapter 2 of this thesis examined relevant cases from both Canada and England regarding the assessment of sadomasochism and the varying degrees of consensual bodily harm. Such shall not be revisited, and only relevant policy considerations will be plunged into this chapter’s realm of legal examination. The concord of implementing public policy by both the English
293 Regina v Price 2004 BCPC 0103.
61 and Canadian courts are harnessed as a decisive factor in the justification of the State’s prosecution of sadomasochism; albeit with scrutiny and much debate along the ripples of time.294 To determine the relevance of public policy within this grey-area of criminal law, an exploration into the foundations of the concept must be explored.
The High Court, in the South African case of Minister of Education v Syfrets Trust Ltd NO defined the concept of public policy as:
‘[Just as] its synonyms, boni mores, public interest and the general sense of justice of the community – is not a static concept, but changes over time as social conditions evolve and basic freedoms develop.295’
The aforementioned consideration illustrates that the public interest is a synonym for public policy,296 along with the allotting of the boni mores criterion within this niche in South African law. At its core, the evolution of time moulds the transition of public policy to be malleable within the current paradigm of social perspectives and in the direction of an authoritative creation of values, objectives, and goals within the public at large.297 Guidelines in developing and honing policy considerations of the public should be created upon the needs of the public itself.298
Jean-Baptiste Alphonse Karr stated within his epigram, ‘plus ça change, plus c’est la même chose’ which loosely translates as ‘the more things change, the more they remain the same.299’ This stands within a cacophony against the principle etymology of public policy, as the nature of public policy is not static.300 Instead, public policy exists as a panoply of the Constitution of South Africa.301 Therefore, the State is under a duty of care to the public at large in order to facilitate the constitutional foundations that influence the public sphere and to prevent against such foundations befalling harm and infringement.
294 The case of R v Brown [1994] 1 AC 212 endures as a much debated node within the legality of consensual sexual violence and its permissibility within a legal system.
295 Minister of Education v Syfrets Trust Ltd NO [2006] ZAWCHC 65; 2006 (4) SA 205 (C) (24 March 2006) at para 24.
296 See Curators, Emma Smith Educational Fund v University of Kwazulu-Natal [2010] ZASCA 136; 2010 (6) SA 518 (SCA) which confirms the comprehension of public policy as the 'public interest', at para 40.
297 N.L. Roux ‘Public policy-making and policy analysis in South Africa amidst transformation, change and globalisation: Views on participants and role players in the policy analytic procedure’ (2002) 37 Journal of Public Administration 425.
298 Ibid 421.
299 V. Bhargava ‘Plus ça change, plus c’est la même chose [the President's Page]’ (2013) 51 IEEE Communications Magazine 6.
300 Minister of Education v Syfrets Trust Ltd NO [2006] Zawchc 65; 2006 (4) Sa 205 (C) (24 March 2006) at para 24.
301 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) at para 28.
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