"Internet Law Book Reviews" Provided by Rob Jerrard LLB LLM
CONSENT NO DEFENCE TO SADO-MASOCHISTIC ASSAULTS
R v Brown Laskey Jaggard and others [1992] 2 WLR 441
In this reserved judgment the Court of Appeal had to decide whether it was in the public interest to prosecute persons who had consented to acts of wounding performed for the victims' sexual pleasure? The appellants belonged to a group of sado-masochistic homosexuals who willing and enthusiastically participated in the commission of acts of violence against each other for the sexual pleasure which it engendered in the giving and receiving of pain.
The activities took place in rooms equipped as torture chambers. Video cameras were used to record the activities; tapes were then copied and distributed among the members.
The charges included convictions on counts of assault occasioning actual bodily harm and wounding. The assaults in question are described, inter alia, as stinging nettles applied to the genital area, being hit by a cat of nine tails, and having a penis nailed to a bench. All assaults were done with the consent of the passive partner or victim.
The court concluded there was no permanent injury; no infection of wounds; no evidence of any medical attention being sought. There was no complaint to the police, the actions were carried out in private, and moreover, no profit and no sale of the video tapes.
Consent lay at the heart of the appeal: the appellants submitted there could be no assault unless the prosecution proved a "hostile" act, Fairclough v Whipp [1951] 2 ALL E.R. 834. The appellants also contended that it was inappropriate to lay charges under the Offences Against The Person Act 1861 which they said was not intended to apply to incidents of private sexual behaviour.
All the appellants admitted either "causing hurt or injury calculated to interfere with health or comfort", R v Miller [1954] 2 QB 282, or wounding as required by the 1861 Act. Generally speaking, in an assault charge the prosecution had to prove that the victim did not consent, an assault being any unlawful touching of another without that other's consent
In Attorney General's Reference (No 6 of 1980 [1981] QB 715, the Court of Appeal decided that it was not in the public interest that people should cause each other actual bodily harm or try to cause it for no good reason. That case concerned fighting in a public place.
In the instant case it was unnecessary for their Lordships to decide what was good reason, however, satisfying of sado-masochistic libido did not come within the category of good reason, nor could the injuries be described as merely transient or trifling. The judge's ruling was correct.
As to sentencing: their Lordships took the view that the function of the court was to mark its disapproval by imposing short terms of immediate imprisonment. In this case they were prepared to accept that the appellants did not appreciate their actions were criminal; the sentences were considerably reduced.
The court certified that a point of general public importance was involved. Leave to appeal to the House of Lords was granted.
Rob Jerrard
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