CHAPTER 3: THE FORGING OF PUBLIC POLICY AND DEVELOPING SOCIAL
3.2 England
3.2.1 Overview
62
63 an accused could not avoid criminality, despite the consent and willingness of the participants to the practice.309
Public policy in England has rooted beliefs in the concepts of ‘social utility’ and ‘good reason’
in attempting to justify activities that cause measures of bodily harm within the public.310 There have been numerous developments in English law, as mentioned under Chapter 2 of this dissertation, which are accepted by the courts of the land as exemptions to the inherently unlawful harm that is practiced between consenting adults. This is inspired by the displacement of the activities that have garnered a measure of social acceptance and utility within the foothills of public policy.
The emergence of the defence of consent to bodily harm by consensual sadomasochism proves to fail as a justifiable social exemption by the judiciary England in the context of the act itself, for the interests of public safety rebukes such harmful practices on the absence of any apparent social benefit.311 What is pertinent about this submission is that it inflates the brewing cloud of the doctrine of public policy within the jurisprudence of England, carving inroads into both the public and private sphere of autonomous adult interaction as desiring a ‘social benefit’ from sadomasochism for it to be legally valid. The interpretation of public policy at this judicial juncture proved to be as far reaching as to the very sanctums of individual private settings,312 as was later confirmed in R v Brown.313
The judgement of Brown struts and frets within this judicial comparison in a lingering aura of the desired critique regarding the emergence of public policy within the judiciary’s interpretation of consensual sadomasochism. The majority of the House of Lords, in the reliance of the doctrine of public policy to prosecute the actions of the accused sadomasochists, saw the act as cruel and barbaric, unsettling within a civilised society and harmful to the public at large. Lord Templeman of the majority, as quoted earlier, perceived sadomasochism as ‘evil’
within a moralistic society.314 The impetus of Lord Templeman’s viewpoint serves as a caveat to those that would indulge in such ‘pleasures by violence’ that bring actual bodily harm,
309 Attorney General's Reference (No 6 of 1980) [1981] QB 715.
310 Ibid 719.
311 Moulds ‘Is society still shackled with the chains of a 1993 England? Consent, sado-masochism and R v Brown’
(2015) 77.
312 Attorney General's Reference (No 6 of 1980) [1981] QB 715.
313 R v Brown [1994] 1 AC 212.
314 Ibid 237.
64 entrenching the prosecution of this practice that was, and is, perceived as divergent to public policy and failing to fall within the framework of social utility.315
The issue that arises capriciously from the majority viewpoint in Brown, as noted by Kerr,316 is the implementation of what is considered by the judiciary to be ‘in the public interest’; by virtue of a proposed ‘moralistic’ criminalisation of sadomasochism. This stance nestles within the thicket of State paternalism as an over-arching dictator in restricting the autonomy of consenting adults.
Lord Templeman, acting as a custodian for public policy and public safety, vied for a moralistic proposition for the prosecution of consensual sadomasochism, as such existed within sectors of ‘cruelty and evil’. His supporting retinue of Lords, Jauncey and Lowry, brought forward the paternalistic perspective that the State may intervene within the private sexual activities of adults where such is merged with violence to derive gratification, and capable of inspiring public violence. To Lords Jauncey and Lowry, the State has a prerogative in controlling and safeguarding the exposure of the general public to violent conduct that bears no ‘social utility’, that which has the potential of ‘corrupting others’ within the said public. Albeit consensual, the majority deemed the intentional application of force that causes bodily injuries for sexual gratification to be an inherent failure of any ‘social utility’ and unable to add substantial and compelling ‘good reasons’ for the harm itself.
The dissent of Lord Mustill and Slynn gnawed at the validity of the implementation of public policy as a factor of legal consideration of the court prosecuting consensual sadomasochism.
To Lord Mustill, the interests of the community in examining the legality of the case at hand should not be done on default application by a court; rather, such should be inspected upon a case-by-case basis upon individual merits. The doctrine of public policy is a pertinent factor for the uprooting of violent conduct that has seeped through the crannies of the social demographic; however, the judicial granite to combat such conduct must also give way for civil libertarianism, as put forward by the minority.
The reason for Brown’s perpetuity as an ongoing debate, tied to public policy considerations within the prosecution of consensual sadomasochism, is the application of state paternalism lassoing the private sphere of individual autonomy within immediate judicial scrutiny.317 The
315 Kerr ‘Consensual sado-masochism and the public interest: Distinguishing morality and legality’ (2014) 51.
316 Ibid 52.
317 Simester et al. Simester and Sullivan’s Criminal Law Theory and Doctrine (2016) 784 -785.
65 justification of public policy as a factor for prosecution and conviction of the sadomasochists is tailored within a lucid tier of what was considered ‘moral’ by the majority of the House of Lords. The position of the majority, by one fell swoop of their gavels, attempted to safeguard the community at large by prosecuting a minority group’s actions that caused ‘moral harm’ and endangered the health and safety of the public at large. The House of Lords, in attempting to shield the public from knowledge of this practice, inevitably opened a Pandora’s Box of its own making, as the sadomasochistic practices were widely publicised upon the prosecution.
As laden with complexities and debate as the House of Lord’s judgement was, the contrast of the legality of public policy applied in R v Wilson is a reflection of the ‘black and white’ judicial frontier of interpretation within English law.318 The court understood that public policy considerations would not favour a prosecution of the accused to the crime of actual bodily harm, as the action fell within an exempted practice of consensual bodily harm, being that of tattooing. What arises from this submission of public policy, exempting criminal sanction upon a husband who had carved his initials upon the buttocks of his wife, proves that there are established categories of accepted exemptions to a prosecution of actual bodily harm that will be favoured and tolerated as non-criminal by the English doctrine of public policy.319
Just as the myth of Janus, with two heads facing December and January respectively, the judiciary found actual bodily harm to be either inherently unlawful; based on the harm caused by the consensual practice within society, or exempt from criminal sanction where such harm fell within a niche of acceptance by means of social utility or social cognisance. The stark duality between Brown and Wilson in applying public policy as a deciding factor to the unlawfulness of consensual harm exposes a multitude of social and moral facets considered by the respective courts.
One of the factors in safeguarding societal and public interests by the House Lords in Brown was to prevent against the real risk of HIV infections,320 whereas such was not the consideration of public policy in Wilson, as such was viewed in light of tattooing.321 As paternalistic as the majority judgement of the House of Lords may be, such has come under the scrutiny of
318 R v Wilson (1996) 2 CR App Rep 241.
319 See Attorney General's Reference (No 6 of 1980) [1981] QB 715.
320 See A Kelkar “Blurred Vision: How Flawed Was R v Brown?” (11 February 2013), Retrieved from http://durhamprobono.blogspot.com/. where the House of Lords Judgement in R v Brown has been scrutinised as homophobic. (Accessed on 22 June 2018).
321 Ibid.
66 implementing a criminal sanction at the moral behest of the individual Lords themselves,322 rather than the values entrenched by the criminal law and the doctrine of public policy. Both cases involve consensual harm occasioning in actual bodily harm, yet Wilson went by unpunished, as the conduct of the participants were deemed to be ‘within the norm’ of socially sanctioned forms of bodily harm (tattooing) between consenting adults.
Furthermore, the House of Lords found justification in its comparison of the violence within the sexual practice to the violence within a recognised sport. In light of the doctrine of public policy, a decisive test of the exemption of actual bodily harm caused in recognised contact sports is viewed as incidental to the game.323 The objective of the sporting activity is to win the game, and any form of sporting violence is not done in revelry.324 Consensual sadomasochism, in light of the assessment by the doctrine of public policy as raised by the House of Lords, administers a form of violence that is pursuant of hedonism. The two philosophies of violence exist in separate planes within the application of public policy by the courts.
The House of Lords, exposed by the majority judgement, put forward a consideration for the necessity of a prosecution of an unidentified practice, such as sadomasochism, that has an objective to inspire violence, which brings actual bodily harm for sexual gratification. It is not as simple as defining the rules of sporting activities which are regulated by codes and governing bodies, whereas sadomasochism is generally structured and regulated by the participants themselves. The State shall allow such authoritative bodies to control sports, yet restricts individuals to control their private and consensual sadomasochistic activities. Thus, the court in Brown regarded public policy considerations to supersede that of sexual expression. W Wilson stated interestingly that:
‘It is arguable that the House of Lords decision in Brown should be treated not as a test case for sexual freedom, but for the idea that even a tolerant, pluralistic society must enforce one fundamental residual moral value.325’
The judiciary of England, post-Brown, proved that it would not allow the public to intentionally injure and inspire the recreation of an act of violence. However, as evidenced in Wilson,326 such
322 Stuart as cited in Kerr ‘Consensual sado-masochism and the public interest: Distinguishing morality and legality’ (2014) 61.
323 J. Standen ‘The manly sports: The problematic use of criminal law to regulate sports violence’ (2009) 99 Journal of Criminal Law and Criminology 633.
324 Ibid 623.
325 W. Wilson ‘Is hurting people wrong?’ (1992) 14 Journal of Social Welfare and Family Law 388.
326 R v Wilson (1996) 2 CR App Rep 241.
67 may be exempt from punishment where there are sufficient ‘good reason’ and ‘social utility’
for the purpose of the conduct. These two pivotal prodigies of the English law’s stance bring a double-edged sword into the assessment of consensual harm. Public policy is an ever-evolving and developing principle, that which is projected within a kaleidoscope of relevant legal developments. The legal approach of the judiciary in applying the doctrine of public policy is an important facet of the approach of a court when hearing a matter regarding consensual sadomasochism.
The English judiciary, and its readily implemented doctrine of public policy is populated by judicial intrigue regarding the existence of other avenues of legal focus. The judgement of Brown gave no quarter for individual autonomy, as the House of Lords wished to give credence to the interests of public health and morality. Thus, to the House of Lords, the public interest must encompass that which is morally shared by the community at large and the implementation of state paternalism exposed the sexual behaviour as contrary to such principles. However, as the years of judicial development grew within the country, the understanding of that which is ‘morally frowned upon’ did not essentially demand criminal prosecution to be rigidly implemented by courts.327
A transparent and guided definition by a court regarding the actual definition of public policy within England appears to be omitted by the judiciary as far as the Attorney General’s decision is concerned. Moreover, the compelling factor of prosecution for ‘no good reasons’ to a practice that brings degrees of harm exists within an obscurity of fact if the act in question cannot satisfy the ‘good reasons’ requirement, rendering such as prima facie criminal. Thus, the discretion of the judiciary becomes a noteworthy factor of consideration when interpreting the entirety of public policy in determining the legality of consensual sadomasochism that causes actual bodily harm. Therefore, without a clear illumination on what a ‘good reason’ is within the concept of the England’s public policy, the possible perspective of the judiciary’s personal prerogatives are allowed to sprout and sculpt a final decision based on such liberty.
The causing of actual bodily harm remains the commanding benchmark of judicial intervention when public policy is concerned, leading to the prosecution of sadomasochistic activities. The findings at the judicial juncture, catapulted by the court in R v Brown, proved that even the private activities of consensual conduct fall within a trembling crescendo of State intervention, by virtue of the proposed public policy considerations.
327 See Kerr ‘Consensual sado-masochism and the public interest: Distinguishing morality and legality’ (2014).
68 The Law Commission of the country contended the stance adopted in Brown upon its consultation of public policy’s proposed footing regarding consent to actual bodily harm in the criminal law.328 The Commission observed that no immediate interference by courts into the private lives of the consenting sexual partners is necessary, provided the interests of society and the public are upheld and protected within the sexual dynamic. The Commission went on to acknowledge that the nature of sadomasochism involves humiliation and/or physical violence to attain sexual gratification, and heighten the desired sexual experience of the partners.329 The Commission advocated for a clearer definition of consensual sadomasochism and evidentially strays away from the approach adopted by the House of Lords. This was done in hopes of bolstering a clearer social meaning to consensual sadomasochism and its accepted limits in the eyes of English law. To the Law Commission, the public interest may be utilised to interpret the participants’ individual rights of autonomy with the sexual relationship.
The Commission, drawing inspiration from the academic opinion of Bamforth,330 illustrated that the social definitions of the practice of sadomasochism should ideally derive from those who participate in such activity.331 Bamforth concludes by surfacing a point of interest, which nudges the doctrine of public policy forward within this stream of criminal law, asserting that sadomasochism should be interpreted within its sexual nature, rather than the violence it stirs within the private relationship. The Commission’s proposal for reforming the reach of public policy within the legality of consensual sadomasochistic relationships is assessed in the following measure:
‘[No one] may give a valid consent to seriously disabling injury, but subject to this limitation the law ought not to prevent people from consenting to injuries caused for religious or sexual purposes.332’
This endures as a testament to the growing consideration of individual autonomy of the participants to sadomasochism, and the State balancing its duty to safeguard the fundamental rights of its citizens by placing either exemptions and/or limitations on consensual activities that were earlier deemed as criminal. The State’s decision to prosecute a ‘seriously disabling injury’ that arises during sexual intercourse between consenting partners is derived from the sheer intensity of the harm caused that may affect the public at large, rather than the harm
328 Law Commission of The United Kingdom "Consent in the Criminal Law: Consultation Paper, No. 139” (1995), 24.
329 See para 10.48 p145.
330 Bamforth as cited in the Law Commission report.
331 Ibid.
332 See para 10.52 p146.
69 inflicted upon the consenting parties.333 However, the Commission exposes that public policy may prove to be a zealous leap in the determination of a threshold to the nature of the harm that may be permitted within a private sadomasochistic relationship, where there is no ‘serious disabling injury’.
Such a mustering of the doctrine of public policy, implemented in accordance with individual autonomy and sexuality rights, could serve in overturning the ambiguity of Brown’s proposed policy considerations for a prosecution of consensual sadomasochism. Professor David Feldman,334 as mentioned within the Commission’s report, challenges the notion of public policy establishing a ‘social utility’ in violent practices such as boxing, but automatically discrediting the violence within sadomasochism.335 The Law Commission, by propelling Feldman’s opinion, submits that by endorsing sexual expression within the public sphere, the prevailing personality rights of the participants to sadomasochism may allow for a more favourable judicial interpretation of the practice.336