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Street fights and BDSM

Giovanni Martino

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Consent as a defence in non-fatal offences

In the law of England and Wales consent is a defence to assault provided there is no intention to cause actual bodily harm or worse – as decided in the case of R v Donovan. Actual bodily harm (ABH) – a criminal offence under s. 47 of the Offences Against the Person Act 1861 – is any injury intended to interfere with the health and comfort of the victim (as per R v Miller), including psychological injury where this is a recognised medical condition. ABH involves, for instance, bruising or injuries requiring stitches. It does not involve however injuries where the continuity of the skin is broken or in general really serious harm, like stabbing injuries – which are classified as grievous bodily harm, or GBH. 


The reasoning behind the current state of the law is that it is not in the public interest that people should cause each other bodily harm for no good reason. Suppose a group of people agrees to take part in a street fight. Many perhaps would agree that the express or implied consent on the risk of injury should not provide these people with a defence in case any of them is actually injured, as it is not in the public interest to encourage violence of this type.


The exceptions to this general rule appear to be based again on public policy. For example, it is clearly in the public interest that patients are allowed to consent to surgical operations and that surgeons are not liable for committing forms of aggravated assault. By analogy, in R v Wilson this exception has been extended to ear piercing and tattooing but not to sadomasochistic activity, due to the controversial judgment in R v Brown, to which I return below. 


Another exception relates to properly conducted sport. Again, there is clearly a strong public interest to allow properly conducted contact sport to take place without fear that the participants may be prosecuted for injuries caused whilst playing within the rules of the game. 


A third exception applies to injuries sustained during rough behaviour or horseplay. In the case of R v Jones schoolboys were convicted of inflicting GBH on two fellow schoolmates having thrown them into the air with the intention of catching them. They had dropped them resulting in serious injury. The evidence was that the boys had previously engaged in the activity without injury and that it was taken by all as a joke with no intention to cause any harm. The convictions were quashed as it was held the victims had impliedly consented to their injuries. 


In the case of R v Brown, a group of men were convicted for their involvement in consensual sadomasochistic sexual acts over a 10-year period. Lord Templeman gave the leading judgment for the majority in which he held that at present sado-masochistic activity was unlawful and it would be up to Parliament – i.e. legislation by statute – to change the law. Lord Templeman’s pejorative language to describe sadomasochism suggests that he believed such behaviour was morally repugnant when arguing that the “glorification of violence and cruelty” was not in the public interest. It was further argued that during such activities things could easily get out of control and that a victim may not realise to what degree of harm he or she had consented, stressing the principle that people should not cause each other bodily harm for no good reason.


There are a series of arguments criticising the judgment in R v Brown and the state of the law in general.


The current law appears paternalistic in that it does not allow people to exercise their freedom to a reasonable degree, even in the privacy of their own homes and when everyone involved gives express consent. This may be objectionable, particularly where an activity is done for the sake of pleasure, such as BDSM. 


The judgment in R v Brown has become controversial, as it shows how judges may potentially find an activity illegal just because they find it morally repugnant. This is worrying, particularly when the views of the judges may not be reflected within society as a whole. In general, subjective repugnance and moral objection is not a proper legal basis for creating an offence – see Lord Mustill dissenting in R v Brown


The decision in R v Brown is also difficult to reconcile with R v Wilson. In the latter case, the defendant, with the consent of his wife, branded his initials on his wife’s buttocks with a hot knife. Her skin became infected and the doctor reported the matter to the police. The defendant was charged with ABH, but the consent of the wife was held to be valid; this was seen more like a tattooing case. This decision may have been influenced by the fact that the defendant and the victim were married as the judges held that consensual activity between husband and wife in the privacy of the matrimonial home was not a matter for the courts. But then we are left to wonder why matrimonial privacy should matter more than privacy in the sado-masochistic activities of R v Brown


One could finally contrast R v Brown, in which it was held that one cannot consent to the risk of infection of sexually transmitted diseases like HIV (classified as GBH) with R v Dica, where this was held to be possible. 


The inconsistency of the common law shows the need for statutory reform. 


The Law Commission’s Consultation Paper “Consent in Criminal Law” proposed the introduction of the label serious disabling injury (SDI), which includes the exceptions of medical treatment and sport. Where the injury is not an SDI, intentional injury will not be criminal if the victim consents to the type of injury caused. Crucially, consent will not be essential for a defence either. Recklessness – i.e. where someone has merely foreseen a risk of injury and has then taken such risk – will suffice. Injury caused in the course of fighting will be unlawful regardless of any consent. The idea is then to raise the bar for liability and the approach seems promising. 


The rationale for keeping legal liability for fighting injuries would be that only consensual injury (as in BDSM) done for pleasure does not represent a threat to public order or to people’s safety.  


The law in New Zealand (as established in the case of R v Lee) includes similar provisions. In R v Lee it was held that: 


1. Consent/Recklessness to ABH is a defence (except for fighting);


2. Consent/Recklessness to GBH may require the judge to withdraw the defence of consent based on the facts of case;


3. Consent/Recklessness to death is not a defence.


To sum up, it seems that it is unjustified to criminalise an act or activity which (1) is done for mutual pleasure or amusement and (2) is mutually agreed upon as long as (3) it does not put life in danger and (4) what is done is the act or activity agreed upon – including its reasonable consequences. Things will be then dealt with on a case-by-case basis. 


All this requires a balance between the degree of the risk and the interests of individual freedom. 


And given that the present common law on consent as a defence to assault is unsatisfactory, this might be a change in the right direction.  

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