The relationship between law and morality have been brought up repeatedly over the years by critiques and academicians. Some critiques laid that judges tend to set aside legal rules and make moral judgments when it comes to cases where morality is involved. Furthermore, judges in the past had a broad history of becoming moral arbiters. In the case of re Besant in 1878, Annie Besant’s custody over her daughter was taken back by the courts on the fact that she had written a book on contraceptives that the judges considered as obscene and immoral even though she had provided the greatest care for the child.
Sir George Jessel MR said this: “It is said that in addition to these opinions on the questions as to the existence of a Deity and other speculative subjects, Mrs. Besant has been guilty of immoral conduct in publishing an immoral or obscene book, or rather pamphlet. Now, I am sorry to say that on my attention being directed to some of the pages of this pamphlet I can entertain no doubt whatever as to its being an obscene publication”. In his full judgments, the judge acknowledged the fact that she had given the child greatest care but yet had decided to give more weigh to the pamphlet that she wrote.
A further example is seen from the case of Seddon v Seddon and Doyle, where a woman who had committed adultery was denied contact to her children. Sir Cresswell decided that it will “have a salutary effect in the interests of public morality that it should be known that a woman, if found guilty of adultery, will forfeit, as far as this Court is concerned, all right to the custody of, or access to her children”. The decision made was based solely on the immoral act and no other reasons involved.
Fortunately, the laws have now evolved and expanded over the years. For instance, homosexual acts which used to be unlawful was decriminalised through Sexual Offences Act 1967. Moreover, contraceptives are no longer considered as taboo or inappropriate and is available for purchase through the enactment of National Health Service (Family Planning) Act 1967. It shows that the law evolves in parallel with the public attitude. When majority of society accepts or involves in certain acts that are presumably unlawful and immoral, the Parliament must alter the law to suit the needs of the society. Also, the courts must apply the law only according to the Parliament’s intention. After all, the law is created for protection and welfare of the public.
These changes seem to have a positive effect on the society but the main question is, have the judges really moved on from making judgments based on morality? To analyse this question, the case of R v Brown will be used as a main example. The case was about sadomasochism sex willingly performed by a group of homosexuals privately in different locations. Videos were taken and distributed among the group but not sold or given out to non-group members. The “victims” consented to the acts and suffered no permanent injury but the defendants were charged with s 47 of the Offences against the Person act 1861 and s 20 of the same Act for unlawful wounding.
The courts decided that their actions were prima facie unlawful. Also, it interfered with the public interest and it was a must to protect society from such behaviour. In order to negate liability, the public must receive certain benefits from the activity. The majority consisted of Lord Templeman, Lord Jauncey and Lord Lowry decided to dismiss the appeals and upheld the convictions. However, the judgments made were widely criticised for presumably adapting paternalistic and morality approach.
For example, Lord Templeman described sadomasochism as violence which is inflicted for the indulgence of cruelty and calling it uncivilised. He also stated that he was not prepared to invent a defence on consent on such behavior for glorifying cruelty. Based on these words, it seems to strengthen the allegation of judges making moral judgments. Furthermore, Lord Jauncey extends the allegation with dismissing the appeals because of the possibility of proselytisation and corruption of young men. It shows that the judge adopted the paternalistic and morality approach when making his decisions and as said by Tsang, “it is unjust for a public authority to prefer one opinion to another based on personal distaste or to disguise such prejudice as public morality, since an important aspect of justice is equality” even though in the end she agreed with the way Brown was decided.
Judges need to understand the appropriateness of using the paternalistic approach. In some cases, such as Re W and Re M, this approach is suitable to decide best interests of minors in terms of medical interference but in this particular case, it might not be the best approach to rely on. It also encourages judges to make ambiguous and hypothetical decisions rather than giving more weigh to actual evidence. The paternalistic approach is needed to a certain extent but it should display sufficient equal respect and concern to the defendants. The decision in Brown displays the complete opposite of that by focusing more on personal indifference and on the issue of violence and cruelty.
Secondly, other activities like ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities according to Lord Templeman but it should not extend to sadomasochism. The fact that boxing, a sport that involves punching and to some extent making the opponent unconscious is allowed, makes the legality of the sport seems ambiguous. Lord Jauncey in his judgments, justified boxing as one of the exception because the injuries involved were merely “incidental” and not the purpose of the activity. This argument can only be used to refer to boxing in the past but clearly boxing has far evolved from just sparring.
Modern boxing collects points through the blow given to opponent and defence, but a sure way of winning is through knocking out the opponent. Boxing is considered lawful by the judges because it is a properly conducted sport with the involvement of a third party, proper gears and the risk of harm is minimised. As seen in Brown, the participants have taken safety measures such as, sterilising the equipments and providing safe word but Lord Templeman argued that there was still possibility of infection. Also, in R v Wilson, the act of branding a name on the wife’s buttocks was allowed by courts because branding was similar to tattooing. One cannot help but wonder the safety precautions taken by the couple. There were presumably little or no safety measures taken as she was infected from the act and it was not done by someone qualified. Yet, it was considered as lawful and the defence of consent was allowed. It is unclear on how the court determines when to allow the defence of consent.
The courts were worried about possibility of infection and dangerousness of the act even though there was no permanent injury, but in Wilson, the court refused to speculate about the potential for amateur branding to be excessively painful or unpredictably dangerous. The courts also decided to turn a blind eye on the dangerousness of boxing which is proven to have given the participants brain damage and leads to their death. Simon and Cooper said judges and the Parliament are reluctant to reform the laws on boxing because “it is an activity deeply entrenched in our sporting and cultural heritage that it is an integral part of our society that should be tolerated for the time being”. What does society derive from this particular sports? What kind of benefits do they bring to the public? Violence in modern boxing is harmful to the society especially youth as now they are widely televised which would encourage more acts of violence such as underground boxing. It seems unfair that judges allow boxing in the exceptions but not sadomasochism because it happens to have the same amount of public harm which is the “corruption of youth” as said by Lord Jauncey. Moreover, media violence has been proven to alter youths’ personality and their behavior.
The same argument can be used for implicating pain for entertainment such as game shows as said by Cooper and James. There are minimal discussions in academic literatures regarding legality of this conduct. This gives us the idea that the authors may have their own biases as well as the judges. Thus, it is safe to say that the authors find it tolerable. Also, I do not see a good reason for judges to include this in their exceptions and to consider it as lawful even though pain is minimal. When does implication of pain for laughs become a “good reason” in public interest to make it lawful? Brown have set the precedent for future cases to follow which makes any acts involving harm to be prima facie unlawful but yet this kind of entertainment receives no punishment or has not been brought into court. Furthermore, there is no specific guideline as to what constitutes “good reason”. Any judges can interpret “good reason” based on their preferences and hides behind the policy.
It has been decided that a person can consent to harm as long as it does not interfere with the rights of others and there is a public interest to negate liability. The court also decided not to interfere with a person’s choice to consent to harm if the conduct is done privately. As said by Lord Mustill, “I cannot accept that the infliction of bodily harm, and especially the private infliction of it, is invariably criminal absent some special factor which decrees otherwise”. The acts done by the appellants were conducted in a private manner and only involved group members but the judges decided to not give it an appropriate amount of weigh when making judgments. It allows the presumption that personal autonomy values less than social welfare when it should be balanced.
The principle of autonomy is much more valuable in medical law. Patients can freely exercise their right to decide whether to receive or refuse treatments as long as they are competent to do so. Lord Goff said that doctors should respect the patient’s decision even when the decision is not in the patient’s best interest. It seems unfair that criminal law undervalues autonomy considering both actions are same in terms of harmfulness to one’s body. However, the appellants in Brown included the usage of drinks and drugs which undervalued the consent given. In addition, the appellants recorded their activities and even though it was only distributed among members, it did not display complete privacy. Tolmie disagreed that it played a part in making final judgments because the nature of the sadomasochistic sex itself made other circumstances irrelevant. But, if the act involves only two participants, no involvement of drinks or drugs and completely private, it is submitted that the justification of making it unlawful will possibly be hard to reach by the judges.
Other than that, the decision in Brown might have shown judges’ biasness towards sexual non-conformity. Lord Lane C.J expressed his relief when one of the participants apparently returned to “normal heterosexual relationship”. A blogger claimed that “sadomasochism is not exclusive to homosexuals, so it is not their sexuality which is on trial here but the extent to which sadomasochism can be practiced and yet come under the protection of the law under consent”. But the usage of the word “normal” and “heterosexual” portrays the judges’ personal views and make it looks biased. It is safe to say that normal heterosexual relationship means a relationship between a man and a woman. The judges were not only repelled by the acts of sadomasochism but they were also disgusted at the acts of homosexual itself. Lord Templeman also supported this view when he quoted it in his judgments. Moreover, according to Gurnham, “the word “cruel’ used in Brown carries with it certain social and cultural connotations, especially when it is associated with sexual behavior and norms” which further confirms the biasness.
The decision in Brown somehow shows that the judges may have wrongly applied the relevant law and have taken the role of policy making. As said by Lord Mustill, the Act covers assaults that are in different forms from sadomasochism and the only reason the appellants were charged under the Act was because there was no other suitable Act to charge upon them. He added that judges on deciding sadomasochism act as unlawful had gone over their respective power because it was in the power of the Parliament to decide on the lawfulness of the act through reviewing all the medical, social, moral and political issues. Giles further argues that judges have “necessitated a complicated and detailed consideration of policy arguments in each individual cases, while at the same time denying their policy-making role”. The word “complicated” used in the quote above is assumed to refer to the judges’ unclear guidelines on allowing the defence of consent which were not consistent at all. The judges presumably used their position and take into account their own personal views when deciding judgments while hiding behind the public policy argument.
The judgments in Brown has caused a stir in the legal world. Debates on law and morality does not only concern sexual expression but also extends to other matters such as the laws of abortion. Controversial cases which the judges think might have put society welfare at risk must be discussed carefully and in detail to avoid the presumption of biasness. It is almost impossible to separate the judges’ personal thoughts and knowledge when deciding a case. The law, as said by Sir Rabinder in his speech, “is based on values and even though judges now disavow any intention to enforce their own moral values, the law which they apply is still based on and reflects values”. In the modern world, the society way of thinking has evolved even further and the law changes along with it. This is also applicable towards the judges’ way of thinking. It is submitted that the judges may still need to refer to fundamentals of values but to put aside their own moral judgments which would render their decisions to be biased. Also, they have to make it certain that the principle of public interest and personal autonomy is proportionate to each other.
The courts’ decision making process is in dire need of a reform because the present approach as said by Tolmie, “evolves as a “patchwork” of categories of “lawful” and “unlawful” activities, loosely based on assessments about what is “normal” behavior and what is not”. It portrays uncertainty and creates doubts on justice as it is easily abused. The correct starting point for the judges, is to start with the presumption of legality as seen in the case of R v Lee (New Zealand). In Lee, the appellant was charged with manslaughter on the grounds of causing death by an unlawful act through s 160(2)(a) of the Crimes Act 1961. The issue was whether consent was available as a defence to an assault in relation to ritual exorcism. The courts adopted the presumption that a person can consent to a certain amount of harm and allowed more weight to be given to personal autonomy. This approach promotes fairness and encourages judges to decide on cases individually based on the facts of the case.
The result of Brown, may be relevant if we were still living in the nineteenth century but it seems irrelevant now that society is more liberalised and becoming more acceptance towards different cultures. The release of the erotic novel “Fifty Shades of Grey” which focuses on element of bondage, dominance/submission and also masochism has become the best-selling book of all time in the United Kingdom in 2012. There were clearly attempts to promote the judges’ personal judgments in Brown through unclear guidelines and choice of words used when describing sadomasochism. However, the decision in Brown still stands as the law of England and Wales which in my opinion is absurd. Lastly, it is time for the Parliament to make use of their power to reform the laws on sexual expressions especially on sadomasochism to reflect acceptance of diversity by society.
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