CHAPTER 6: AMALGAMATION OF THE ARGUMENTS, RECOMMENDATIONS AND
6.1 Summary of the Research Findings
The case of R v Brown and its retinue of developing matters from both England and Canada may undoubtedly influence the possible stance of the South African Criminal law regarding the legality of consensual sadomasochism.1027 Where consensual sexual violence arises in varying degrees of bodily harm, it is likely that the criminal law will launch a multi-faceted investigation into the harm caused. This will also give credence to the specific Constitutional rights of the participants. The debate surrounding the validity of consensual sadomasochism may borrow a judicial perspective from the positions of England and Canada in sculpting a guiding rubric for the South African legal sphere. However, without specific legislation that outlines the validity of the varying degrees of harm emanating from consensual sexual violence, the existing legislation and common law positions of South Africa are the probable avenue of accessibility for a court to determine such matters. The inquiry of a court will be hinged upon the nature of the consensual relationship and the degree of the harm caused by the partners.
The premise of this dissertation intended to determine the response of the criminal law to private displays of consensual sadomasochism, as it is within this network where the greatest infringements of personality rights arise by both the actions of the participants and the possible intervention by the State. It was not the intention of this dissertation to determine whether consensual sadomasochism may be classified as predominantly violent, or a form of sexual expression. Merely, this dissertation sought to interpret the relevant case law and supporting pieces of legal literature to draw a predictive outline of the South African law’s approach if a similar matter arises within its jurisdiction. Further, consensual sadomasochism practised in the public sphere was not the focus of the dissertation, for a prosecution of the practice is highly likely in this medium, based on the widespread exposure of the harm to the public. The legal validity of consensual sexual violence within the private confines of adult interaction is a far
1027 R v Brown [1994] 1 AC 212.
170 more intricate web to decipher, yet the dissertation has considered multiple areas of inquiry that potentially outline the direction of a South African court if faced with such a matter.
Thus, it is suggested that just as the criminal law interprets dangerous consensual activities that bring variant degrees of bodily harm, it should also adopt a similar approach when dealing with private consensual sadomasochism. Within the early investigation of valid consent to bodily harm, the applicability of the common law doctrine known as the volenti non fit iniuria takes flight. Even though such has greater application in the law of delict, the criminal law may rightly borrow from this doctrine in the assessment of consent. This draws inspiration from the submissions of chapter two of this dissertation regarding consent to bodily harm – echoing the element of intention to cause and receive specific bodily harm. The volenti non fit iniuria doctrine may be applied in light of consensual sadomasochism arising in serious bodily harm in the South African legal system. This will reflect the voluntary acceptance of the risk of a partner to the consensual harm and the waiving of their right to claim damages, or effect a prosecution, against the harm-bringer if the outlined harm arises.1028 However, the intensity of the harm that is practised greatly moulds the application of the doctrine and it may not always exist as the clear-cut colloquialism of ‘he who consents cannot be injured.1029’
Chapter two found limitation in the exploration of the South African perspective on varying degrees of consent to bodily harm. The jurisdictions of England and Canada drew the line of invalidly of consent at the occasioning of actual bodily harm practised in consensual sadomasochism. The criminal law of South Africa highlights two forms of assault, namely common assault and assault within intention to do grievous bodily harm. In the hopes of following the guidelines of the international precedents, a South African court may draw an equitable line regarding the invalidity of consent to sadomasochism where grievous bodily harm arises, even if the element of consent is present.1030
Therefore, the objective of chapter two was to illustrate a coherent balance between the extent of valid consent to bodily injury and the entanglement of consensual sadomasochism in this inquiry. It was explored that this investigation will be determined by the nature of the harm caused within the consensual relationship and that valid informed consent is not an absolute defence to avoid criminal liability where grievous bodily harm arises. Evidently, chapter two
1028 See Plumridge v Road Accident Fund (2656/2009) [2012] ZAECPEHC 48 (7 August 2012) at para 11.
1029 See Roux v Hattingh (636/11) [2012] ZASCA132 (27 September 2012) at para 41.
1030 See S v Ngubeni (A459/2008) [2008] ZAGPHC 178 (17 June 2008) at para 25.
171 highlights the volenti non fit iniuria doctrine’s correlation with public policy and various protected autonomy rights of the consenting sadomasochists.
Under chapter three, public policy prerogatives of England, Canada, and South Africa were respectively probed in juxtaposition to harm caused by consensual sadomasochism. This inquiry, feeding off the thread from chapter two, considered a contemporary outlook of public policy and its toleration of consensual harm that brings varying degrees of bodily injury.
Specifically, the chapter drew inspiration from the developments of the law reform commissions of the England and Canada, which focussed on the prevention of harm unto the members of the public. The consideration of the ‘Social Utility’ principle, regarding the validity of a consensual sadomasochistic practice,1031 was disputed as being inadequate to stand as the sole reason to criminalise such conduct.1032 The Law Reform Commission of the England notably attempted to shed a clear resurgence of public policy and its interpretation of the variant harms caused within private consensual sadomasochism. In terms of its more notable submissions, the Commission proposed that the policy considerations would not allow the validity of consent to excuse criminal liability where seriously disabling injury is practised.1033 This exists as a paramount contemporary position, as it is aimed at the prevention of widespread harm unto members of the public and to control the practices of private consensual sadomasochism that brings such serious harm.1034 Further, the chapter outlined the growing social prominence of sadomasochistic material that exists within the accessibility of the contemporary public spheres of the world.
The aim of chapter three was to show the possible outline of South Africa’s public policy considerations to consensual sadomasochism, bringing varying degrees of bodily harm and broader social infringement. The content of the chapter projected the legal aids that inhabit the considerations of public policy, influenced by the Constitution, as well as the boni mores criterion and Ubuntu. These factors mould and guide the possible South African policy considerations regarding consensual harm emanating from sadomasochism and the permissible degrees such harm may include. The chapter, by the implementation of the aforementioned legal aids, arrived at a candid reflection of the duty of care for the autonomy rights of the
1031 Bielefeld ‘The culture of consent and traditional punishments under customary law’ (2003) 145.
1032 See R v Jobidon 1991 2 SCR 714.
1033 See para. 10.52 of "Consent in the Criminal Law: A Consultation Paper, No. 139," 146.
1034 Ibid see para. 2.18 (7), 20.
172 consenting sadomasochists when facing a possible criminal prosecution by the State.1035 Yet, the converse exposed that a criminalisation of consensual sadomasochism may be effected where the practice is sufficiently probable in causing widespread harm unto the public.
Chapter four resumed the ignited debate of the sanctity of the autonomy rights of the consenting sadomasochists and sought valued direction from the precursor international conventions for human rights.1036 The chapter explored the progressive jurisprudential amalgamations of the concept of autonomy and narrowed the investigation into three paramount rights, as contained within the South African Constitution. The right to privacy1037 echoes the chapter’s drive to safeguard the private dwelling of the autonomous actions of the consenting sadomasochists.1038 It appears that if the State infringes the right to privacy, a collection of other autonomy rights will also fall into limitation. The chapter further sought to reflect the right to freedom of expression within consensual sadomasochistic relationships and its internal controls and limitations, as accounted for by the South African Constitution.1039 The right to human dignity brings the most difficulty in terms of jurisprudential clarity, based on its subjective-objective construct.1040 This, however, appears to strengthen the argument for the safeguarding of the practice of consensual sadomasochism, even in the commission of grievous bodily harm, if the harm is truly desired by the injured party as part of their dignity. Therefore, the right to human dignity and its creation of an intrinsic bulwark for each individual serves as a potential repellent to the criminal prosecution of consensual sadomasochism.
The broad consideration of chapter four illustrated the conglomerate of human rights linked to the practice of consensual sadomasochism within a collaborative nature. It is within human dignity that the rights to privacy and freedom of expression may grow, however, section 36(1) of the Constitution limits the absoluteness of these rights under a defined and stringent framework.1041 The chapter arrived at the conclusion that where an appropriate South African court is faced with consensual sadomasochism bringing grievous bodily harm and injury, it may rightly limit the autonomy rights that give rise to such harm; namely the rights to privacy,
1035 See Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC).
1036 See UN General Assembly "Universal Declaration of Human Rights" (1948) and Council of Europe
"Convention for the Protection of Human Rights and Fundamental Freedoms" (1950).
1037 Section 14 of the Constitution of the Republic of South Africa.
1038 Mosley v News Group Newspapers Limited [2008] EWHC 1777 (QB).
1039 Section 16 of the Constitution of the Republic of South Africa.
1040 Section 10.
1041 Section 36(1).
173 human dignity, and freedom of expression. Here, the appropriate balance between the protected constitutional rights of the participating sadomasochists and the compelling interests of the State may be achieved by the potential limitation of the autonomy rights under section 36(1),1042 based on the severity of the harm caused. This, however, as explored within the confines of chapter four, is dependent upon a case-by-case basis and the individual facts presented before the appropriate court.
Chapter five of the dissertation interpreted the probability of consensual sadomasochism enduring as a victimless crime within the South African legal sphere. This penultimate chapter showed the detachment of the appropriate international criminal spheres from the influence of public morality in shaping a criminal prosecution. Clearly, the South African Constitution propels a broad collective moralism by entrenching such values across numerous internal provisions, whilst tacitly influencing other pieces of legal literature to adopt a similar stance.
However, it is likely that the common morality of the broader public may not influence the dispensation of the criminal law, as such is likely to derive itself from its statutory virtues.
Therefore, moral pluralism is an important consideration for an appropriate court to consider if interpreting the harm from private consensual sadomasochism and the moral tolerance of the practice itself.
In the absence of any defined statutory or common law definition of consensual sadomasochism bringing varying degrees of bodily harm, it is likely that a South African court will juxtapose such to either common assault, or assault with intention to do grievous bodily harm. Ultimately, private consensual sadomasochism causing transient and trifling harm may suffer no criminal sanction, and thus, may evade the definition of a victimless crime and the implementation of a prosecution. The penultimate chapter asserted that where the private consensual activities bring grievous, or serious, bodily harm, it is necessary for the criminal law to effect a prosecution, based on the consensual practice exceeding the desired legal threshold of valid consent to bodily harm.1043 A defence of reasonableness to the harm caused by an accused will likely fall away where the nature of the harm was serious, or grievous in its nature and has infringed the Constitutionally protected rights of a person.1044
1042 Ibid.
1043 See R v BM [2018] EWCA Crim 560.
1044 See YG v S (A263/2016) [2017] ZAGPJHC 290; 2018 (1) SACR 64 (GJ) (19 October 2017).
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