Should the Government Control the Sex Lives of Consenting Adults?

The media hype right now may circulate about “Fifty Shades of Grey” coming to big screen, but anyone with a law degree will no doubt remember an equivalent case in the criminal law component of their studies.

The case of R v Brown [1993] 2 WLR 556 is certainly one of the more interesting cases in the criminal law curriculum.

Year after year, it proves to be a talking-point for law students and has made the job of lecturers a little easier.

And although the case was decided more than 20 years ago, it still raises some very relevant questions.

R v Brown is a decision of the House of Lords in the UK.

The court essentially had to decide whether the actions of five men involved in a homosexual sado-masochistic sex ring were illegal.

The question centred around consent: if everyone involved is over 18 and able to give consent, should it be anyone else’s business?

The law at the time was that homosexual intercourse was legal provided that it was consensual, in private and between participants aged at least 21 years.

All of those requirements were met for the men who stood accused of assault and wounding.

Among other things, the sex ring participated in a range of activities that they considered sexually stimulating including beatings, brandings, burning, slicing, piercing genitals with fish hooks, nailing genitals to a wooden board – the raunchy list goes on!

But again, the activities were consensual, and codewords were used if the participant could no longer stand the pain (or the arousal as the case may be!)

Consent was an acceptable defence at the time to “common assault”; which is an assault that does not result in any actual bodily harm.

But the men narrowly lost the case when three of the five judges came to the conclusion that many of the acts went beyond what could be negated by consent.

The majority judges pointed out personal autonomy is not absolute – that although people are allowed to consent to ear piercings, surgery, tattooing and contact sports like boxing, not all forms of harm are permissible, even if consent is present.

For example, it is against the law for a person to abuse their own body with illegal drugs; and perhaps controversially, euthanasia is also illegal.

The three majority judges found that certain acts are against the public interest, and are to be considered illegal regardless of apparent consent.

They also pointed out that none of the men were medically qualified, and that it was not possible for one person to feel another’s pain.

Of course, this seems to have overlooked the evidence of codewords to stop, and it raises the question of whether it might be legal if doctors did it to each other.

One of the judges, Lord Templeman, questioned whether or not society could sanction what he categorised as cruelty.

He concluded that society could not, and partly justified his conviction of the men by stating that society ought to protect itself from a culture of violence.

The case has been criticised as an example of government paternalism, or a “nanny state”, and it has been argued that what happens between consenting adults behind closed doors should be none of anyone else’s business.

Lord Mustill, one of the two dissenting judges, argued that the majority characterised the case wrongly.

He found the case to be about private sexual relations, not criminal violence.

Leaving aside his natural repulsion for the actions of the men, Mustill could not bring himself to find that they should be treated as criminals.

And any argument that legalising such conduct might encourage others was, in his eyes, insufficient grounds for making the actions of the men illegal.

Both dissenting judges pointed out that there was no specific law against such forms of conduct, and that if the government wants the acts to be criminal, it should amend the law to make this clear.

Although the case is fairly old, and decided in England, it is still influential in Australian jurisprudence.