R v Brown [1993] UKHL 19 | Criminal Law

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In this video, we look at R v Brown, a Criminal Law case that comes under the Non-Fatal Offences topic. Its facts are… peculiar, but the case is also significant in that it establishes the general rule that the consent of a victim cannot be a defence to an OAPA offence.

NOTE: Only things in quotation marks (“”) are actual direct quotes from the case. All other lines of dialogue, depictions of documents, or any other piece of writing, have been added for illustration purposes only. Images used to represent parties are merely used for illustration purposes, and do not represent their brands or intellectual property. These videos are intended as an educational resource, and, while they are highly accurate and detailed, it is often best to read the full court judgment to learn about a case. This video does not provide legal advice.

TRANSCRIPT

Facts

1. A group of men were involved in sadomasochistic activities with each other, of whom some were sadists, some masochists. The masochists consented to having some pretty violent stuff happening to them, which you’re free to research for yourself if you wish.

2. The sadists, who had committed the violent acts, were convicted of assault occasioning actual bodily harm (AOABH) under the s.47 OAPA offence, as well as the s.20 wounding offence.

3. The sadists appealed their convictions, arguing that they should be overturned since the masochists had consented to the violent acts being inflicted upon them.

Judgment

4. The majority in the House of Lords rejected the appeal. Lord Templeman stated that, in general, consent is no defence in cases where either actual bodily harm, wounding or GBH have been inflicted. In other words, consent can’t generally serve as a defence to the OAPA offences.

5. However, there is an exception to this rule where the violent act occurs within the framework of a ‘lawful activity’. Lawful activities include surgery, boxing, tatooing, and ear-piercing.

6. Lord Templeman went on to say that sadomasochistic activities should not be added to this list of exceptional activities, as it wouldn’t be in the public interest, as “Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised”.

7. In a dissenting judgment, Lord Mustill stated that “these are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law”.

Commentary

8. This case is a rather controversial one. On the one hand, it’s been criticised as not respecting the autonomy of consenting participants in this form of sexual activity. On the other hand, it can be argued that there’s a legitimate public interest in stopping consent being a defence here. Firstly, unlike activities such as surgery and boxing, the potential for harm isn’t outweighed by the benefits of the activity – for example, boxing is highly regulated and it generates economic activity. Secondly, it prevents the excuse of ‘rough sex’ being used as a defence for sexual violence. Allowing this defence to be used could allow many defendants to escape liability for violence that wasn’t consented to by the victim, as the prosecution may struggle to prove beyond reasonable doubt that the victim did not consent to the violence.

NOTE
Only things in quotation marks (“”) are actual direct quotes from the case. All other lines of dialogue, depictions of documents, or any other piece of writing, have been added for illustration purposes only. Images used to represent parties are merely used for illustration purposes, and do not represent their brands or intellectual property. These videos are intended as an educational resource, and, while they are highly accurate and detailed, it is often best to read the full court judgment to learn about a case.
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