Brown
Brown [1993] 2 All ER 75 House of Lords In Brown's case , the House of Lords were split on the issue of whether the consent of victims could be defence to a charge of assault. The 3:2 majority based their judgment on the general rule that a victim cannot consent to an assault occasioning actual bodily harm or more, unless the defendant's actions were within lawfully recognised exceptions. This decision has been widely criticised for placing limits on individual autonomy.Brown's case involved a group of men who engaged in consensual, sado-masochistic activities over a period of ten years. The activity came to the attention of the police because it had been videotaped and subsequently distributed. Five of the men were charged with assault occasioning actual bodily harm and wounding. The accused appealed to the House of Lords.Lord Templeman in the majority held the view that a general rule exists in relation to consent: namely, that consent ordinarily precludes liability in cases of assault. Examples of 'lawfully recognised exceptions' to this general rule include properly conducted sports such as boxing, medical and dental treatment, tattooing and bona fide religious mortifications. In
Despite the majority decision in Brown, there are indications that the law on sado-masochism may change. Lord Templeman explicitly states that his decision will be made by consideration of policy and public interests. Lord Mustill in the minority takes an entirely different approach. A simple answer to the question whether a person can consent to an assault would be: no, not unless the defendant's action was within lawfully recognised exceptions. ' The appeals were dismissed on the grounds that sado-masochistic activities should not be an exception to the general rule by reason of policy and public interest. It is difficult to draw out a general principle from Brown's case that can be applied to those problem areas involving the consensual causing of harm. Lord Templeman did not expand on this concept, but it may be assumed to involve factors such as the degree of violence endured by the victims and moral repugnance, which relates to the social and cultural acceptance of sado-masochistic activities. His Lordship concludes his argument with the following words: 'Society is entitled and bound to protect itself against a cult of violence. The balance between one's privacy and protection from violence has not yet been clarified. In R v Wilson , a man who branded his name on his wife's bottom with her consent had his conviction for actual bodily harm quashed on appeal. According to their recommendations, the victim's consent to conduct causing serious harm, or risk of death or serious harm, should negative criminal liability if the conduct by the accused was socially acceptable and reasonable. Pleasure derived from the infliction of pain is an evil thing. His Lordship, in consideration of the issue, argues that since the activity raises the question of private morality, it should fall outside the scope of the criminal law:'the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interest of the individual and the general interests of the individuals who together comprise the populace at large' He argues that even if these activities 'should' be suppressed, it would be by way of self-imposed moral standards or by community values - not by the criminal law.
Common topics in this essay:
Lord Templeman,
Lord Mustill,
Brown According,
House Lords,
,
Officers Committee,
Discussion Paper,
Offences Person,
sado-masochistic activities,
Lord Mustill's,
lord templeman,
house lords,
individual autonomy,
policy public,
bodily harm,
public interest',
consent assault,
actual bodily,
actual bodily harm,
concept 'policy public,
lawfully recognised exceptions,
'policy public interest',
recognised exceptions,
occasioning actual bodily,
|
Acceptance Essays
