Not black and white – 50 shades of grey in the Courtroom

What are you talking about?

Mr Lock’s acquittal at Ipswich Crown Court on 22nd January of ABH.

What’s that got to do with a S&M novel?

The allegation was that Mr Lock had chained the complainant to the bedroom floor and whipped her with a rope, causing her bruising.

It seems that they had pre-arranged a ‘contract’ to agree that they would do this as part of some ‘kinky fun’, including a ‘safe word‘. It’s not completely clear whether the issue for the jury by the end of the case was solely whether Mr Lock believed that his partner was constenting or whether there was issue of whether she was consenting not as well, but it seems the latter. By finding him not guilty, the jury concluded that it was, as Mr Lock said “a consensual activity between adults”. Or, at least, that that was what Mr Lock believed.

Is this just titillation on your part? I thought you were supposed to be a serious law blog?

Well, we’ve never claimed seriousness. But, actually, there’s some very interesting and complicated points of law in the background here. When, if ever, should the state interfere with what someone does in their bedroom (provided it’s consensual)?

The general rule is that if someone does something that causes me injury, it is a crime. There are obviously exceptions. An obvious one is a surgeon who conducts an appendectomy on you. It is a ‘wounding‘, but it is clearly for your benefit and so the law permits it – there is clearly a ‘public benefit’ in you having an operation. Duelling (as a means of solving disputes) however has no such benefit and is illegal.

But what about sexual pleasure? The leading case on this is still the ‘Operation Spanner‘ case – R v Brown (1993) 97 Cr App R 44. This involved a group of gay men “who over a 10-year period willingly and enthusiastically participated in the commission of acts of violence against each other for … sexual pleasure …The activities included branding a victim with a wire heated with a metal blow lamp, use of a cat o’nine tails, and genital torture and violence to the buttocks, anus, penis, testicles and nipples. All the activities were done with the consent of the passive partner or victim and were carried out in private. There was no permanent injury; no infection of wounds; no evidence of any medical attention being sought; and no complaint was made to the police, who discovered the activities by chance“.

They were convicted of offences of ABH and s20 Wounding. They appealed to the House of Lords (now the Supreme Court), with the issue being whether the consent of the ‘victims’ could be a defence.

The House of Lords ruled however that it was not. All agreed that it was a question of where to draw the line – an individual could consent to a common assualt, but could not consent to being killed – the issue was where in between of that the line should be drawn. There were two dissenting judgments, but the majority of the five agreed with Lord Templeman that “Pleasure derived from the infliction of pain is an evil thing” that “Society is entitled and bound to protect itself” [from such injuries]. In the absence of any social benefit, consent could not be a defence.

The judgment is widely criticised as being homophobic (probably because it was) and reading it 20 years later, it certainly has an anachronistic ring. Passages such as “the possibility of proselytisation and corruption of young men is a real danger even in the case of these appellants, and the taking of video recordings of such activities suggest that secrecy may not be as strict as the appellants claimed to your Lordships” suggest that their Lordships were more concerned with the morality of the issue rather than the legality.

This was confirmed in people’s minds with the case of R v Wilson [1996] 2 Cr App R 241 a few years later. Here, Mr Wilson had branded his initials on his wife’s buttocks (after she had asked him to). The Court of Appeal allowed his appeal for ABH. Brown was distinguished on the basis that “Mrs Wilson not only consented to that which the appellant did, she instigated it. There was no aggressive intent on the part of the appellant. On the contrary, far from wishing to cause injury to his wife, the appellant’s desire was to assist her in what she regarded as the acquisition of a desirable piece of personal adornment [a tattoo]“.

On the face of it, there is no real difference between this and the activity in Brown. Even assuming that there was no sexual element in their activity, if we are looking at the Brown test, how is me tattooing my intials on my wife’s buttocks have a social utility that S & M does not?

The real reason for the decision in Wilson may lie in the last paragraph “Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution“. I would unhesitatingly agree with that statement, but it applies equally to private sexual activity between any number of adults, married or not. What the people in Brown got up to may not be everyones cup of tea, but that is not what the law should be about. If you’re adults and are consenting, it’s none of my business. And it is certainly not the business of the police or the courts.

The law in the UK is still, in theory, as it is in Brown. In practice, the passage of time and change in society’s views and, maybe more importanty, the fact that since then the Human Rights Act is now in force, means the legal landscape is entirely different. I would imagine that, if such a case was even prosecuted today, a Court would have no difficulty in finding that the prosecution would be unlawful under Art 8 European Convention (right to a private life).


But this doesn’t appear to be a ‘Brown’ case? You’re just shoe-horning a reference to a soft porn novel to write a post about Brown?

No Comment.

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About Dan Bunting

I'm a lawyer who works for myself. Legal geek, maths freak, general dullard and jack of all trades. Here’s a few views on law and occasional musings on life. Usual caveats about not relying on anything I say etc applies.

5 thoughts on “Not black and white – 50 shades of grey in the Courtroom

  1. Andrew

    This is a very serious case. It calls for a Parliamentary debate. With a three-line whip.

  2. Rosemary Cantwell

    Rosemary Cantwell
    5 May 2013
    This just shows how historic judgements age. Is it time to draw up a new Code of Conduct?


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