Commentary of Regina v. Brown

Legality of Inflicting Harm with Consent

Regina v. Brown [1993] is a well known criminal case delivered by the House of Lords in which five sadomasochistic homosexual appellants, Anthony Joseph Brown, Colin Laskey, Roland Leonard Jaggard, Saxon Lucas, and Christopher Robert Carter, were arrested and convicted for actual bodily harm following the Offences against the Person Act 1861 under section 20 and section 47. The Court of Appeal upheld the convictions. The House of Lord's judgment was held three against two, where the majority were Lord Templeman, Lord Lowry, Lord Jauncey; the minority were Lord Mustill and Lord Slynn.

The main question, in this case, was whether consent was a valid defence in these circumstances. The activities of sado-masochism included nailing a part of the body to the board, insertion of hot wax into a victim's urethra, etc., It was elaborated that the five appellants did not do it for medical purposes; they did it for volenti non fit injuria ¹, which means to a willing person which is often not considered to be a wrong.

Therefore, I shall first provide the application of legal acts in the court case. Furthermore, I will provide an analysis and critique of Lords’ opinions.

Application of legal acts

One of the misunderstandings that were discussed during the trial was whether the Sexual Offences Act 1956 or Offences against the Person Act 1861 should be applied. One party claimed that it was worthwhile to charge the appellants under the Sexual Offences Act 1956 because first, it gives clarity that it has to do with sexual, sado-masochistic activities. Second, the events of the appellants’ comprehended acts of gross indecency, which is something that a reasonable person would find shocking, disgusting, or revolting, yet it needs to have a sexual overtone or nexus. ² However, the downside from the court's perspective was that they were not able to charge the five appellants under the Act 1956 due to "the time limit". Otherwise, the trial would be more precise.

Critique of the Lords’ Reasoning

The clashing points of contention in this court case were whether morality was private or public and whether consent could be used as a defence. If one could look at the opinions of the Lords, they were based on morals, but the main problem was that the reasoning of the Lords was biased and did not follow the principles of law. For instance, Lord Lowry was highly conservative in his reasoning, while Lord Templeman was more politically bound. The common theme for judges was linguistic structures. One of Lord Templeman's rationales was that "pleasure derived from the infliction of pain is an evil thing." The bias stems from the word “evil” because the term has a strong negative meaning. With that said, even though the law might be politically binding, the Lords should have maintained the neutrality of the language.

Consideration of the Public against Private Interests

Lord Templeman provided his main argument according to homosexual practices that the "change in public attitudes led to a change in the law". ³ It can be done via policy and public interest, engaging the advice of doctors, psychiatrists, criminologists, and other experts. However, Lord Jauncey claims that the public interest within sexual activities should not be involved in this case, also stating the examples of boxing, surgery, and tattooing. They have some common themes with sexual bodily harm, yet it goes far beyond the topic.

For example, in boxing, which is a "contact" sport, one can have serious injuries. The prize-fight is controlled by the referees, and they shall see what is happening to the opponents, so they could not break the rules. Violence can be both private and public, but regarding sensitive human nature, sex is most likely private. Therefore, sexual privacy, including that of homosexuals, is justifiable not to introduce public interests. ⁴In the end, the majority acted in favor of public morals.

Issue of consent as a defence

The Lords' reaction to the defense of consent was polarizing. This raises the question of whether the appellants' actions are justified. According to Lord Templeman, "consent is a defense to some lawful activities inflicting bodily harm," such as surgery, violent sports, tattooing, ear-piercing, and ritual circumcision. Moreover, he is concerned that actual bodily harm has to do with sex and violence, because they involve humiliation of the body, resulting in physical pain.

However, the counsel for the appellants states that consent is a defence, saying that "every person has a right to deal with his body as he pleases." The argument from the counsel is while abusing one's own body is illegal, abusing another's body with consent is not. Consent is only valid as a defense to a crime if the victim gives it. Thus, it must be done knowingly and voluntarily, or it will be ineffective. ⁵

In this case, it was not effective because there was no proper backstory evidence and additional video recordings given that the victim gave consent. The quote by Lord Jauncey proves this: ”Your Lordships have no information as to whether such situations have occurred in relation to other sado-masochistic practitioners.” This led to counsel falling for the straw man fallacy. He used an example of taking drugs and suicide that was not completely necessary to mention because these acts in the victims’ case were non-existent unless there was an accurate cross-examination process. Instead of imagining a new setting, the counsel should have focused on justifying the existing scene. As an outcome, consent was not a defense.

1. Volenti non fit injuria. Retrieved from Cornell Law Dictionary.

2. Acts of Gross Indecency. Caldicott + Isaacs Lawyers. 12 Aug. 2021.

3. R v. Brown. 1993. 2 All ER 75.

4. Sexual Privacy. Icelandic Human Rights Centre.

5. Criminal Law. University of Minnesota Libraries. 17 Dec, 2015.