1 CHAPTER ONE - INTRODUCTION People must sometimes be protected from themselves.1 On February 8, 1992, the British Guardian carried a story illustrated by a photograph of a man, sitting in his somewhat drab living room. He had a conservative haircut and moustache, reading glasses balanced on his nose, and a very worried look on his face. He had good reason for concern. His partner of twenty years had died of AIDS, he was nursing another friend with the same illness, and he was expecting to be sent to prison. His name was Anthony Brown. Brown was part of a group of homosexual men who met at a private residence to participate in sadomasochistic sex. The activities varied from mild to extreme in nature, but no ‘victim’ had ever required medical treatment, and all had participated consensually, for their own sexual pleasure. The group had, from time to time, taken video footage of their activities – for viewing within the group – and, in 1987, one of these videos fell into the hands of the police Obscene Publications squad. Police believed that they were viewing a snuff movie, that is, a movie in which a person is sexually tortured and then killed. In response, they launched a massive, expensive investigation, codenamed Operation Spanner. Gardens were dug up, looking for bodies. None, of course, were ever found. Criminologist Bill Thompson explains that “despite looking extremely foolish, the police went ahead with a charge of conspiracy to corrupt public morals to get a ‘result’. They 1 Rant J, sentencing a defendant in the Brown case, as reported in the Guardian newspaper, 21 November 1990, p. 6. 2 had to; this investigation into nothing had not only cost the taxpayer over £500,000, it had diverted police attention, time and resources from serious crime.”2 More than forty people were charged. Twenty-six were cautioned and released, but fifteen defendants, including Brown, faced court. Brown, during his court appearances, refused to hide his face from the media. He told the Guardian: My sexuality is my own private business. The people I beat fully consented, enjoyed the beatings and were all over 21 […] S&M is about taking the submissive and dominant roles that exist in all sexual relationships further than often happens. I merely acted out fantasies I’d had for years. From my position as a sadist, it’s not so much about inflicting pain as demonstrating domination. […] It’s not so much the level of pain as the methods of inflicting it which submissives want more of. People don’t realise that trust is an essential ingredient between subs and doms. Some of those in the case had partners, like me, for 20 years. You can’t separate the sexual context from the acts. It’s a golden rule that the dom will always stop when the sub cries enough.3 British justice disagreed. Brown was sentenced to imprisonment for two years and nine months, reduced on appeal to three months. Seven others received prison sentences. The remainder received a variety of fines, probation and suspended sentences. Brown, along with several others, appealed first to the Court of Appeal, then to the House of Lords. Finally, following their release from prison, they appealed to the European Court of Human Rights. In each case, they argued that consensual sadomasochistic sex 2 Thompson B (1994) Sadomasochism, Cassell, London, p. 2. 3 Kershaw A (1992) “Inside Story – Spanner in the Works” The Guardian, 8 February 1992, p. 35. 3 resulting in actual or grievous bodily harm (not requiring medical attention) to the submissive participant, was not a matter for criminal law. In each case, they failed. It is now established law in the UK, as a result of this case (known generically as R v Brown or as the ‘Spanner Case’)4 that the law will not allow citizens to consent to bodily harm in the course of sadomasochistic sex. No similar case has ever been brought in Australia. Consequently, Australian textbook writers treat Brown as though it gives the best available expression of what the law is likely to be in Australia.5 The case is not binding on Australian courts, but may (as a starting point) be regarded as persuasive, until the law is established in Australia. This thesis considers whether this should be so. Formally, the research question addressed is: Should it be permissible under Australian law for participants in sadomasochistic sexual activity to consent to having actual or grievous bodily harm inflicted upon them? 4 The reported cases are: R v Brown, Laskey, Jaggard, Lucas, Carter and Cadman [1992] 1 QB 491 (Court of Appeal); R v Brown, Laskey, Jaggard, Lucas and Carter [1994] 1 AC 212 (House of Lords); Laskey, Jaggard and Brown v United Kingdom [1997] ECHR 4. In this paper the central case will usually be referred to as Brown. 5 See, for instance, Halsbury’s Laws of Australia, 130-1135; Bronitt S & McSherry B (2001) Principles of Criminal Law, LBC Information Services, Sydney, p. 558ff; Crofts P (2001) Essential Criminal Law 2nd ed, Cavendish, Sydney, pp. 96-97 (which, however, erroneously argues that Australian legislation has overturned Brown. The legislation will be discussed below.); Rush P & Yeo S (2000) Criminal Law Sourcebook, LexisNexis Butterworths, Sydney, p. 191ff; Gillies P (1997) Criminal Law 4th ed, LBC, Sydney (though this author states, at 334, that Brown offers little contemporary guidance); Waller L & Williams C (2005) Criminal Law, Text and Cases, 5th ed, Butterworths, Sydney, 66; Bagaric M & Arenson K (2004) Criminal Laws in Australia, Cases and Materials, OUP, Sydney, 270; and Whitney K, Flynn M & Moyle P (2000) The Criminal Codes – Commentary and Materials, 5th ed, LBC, Sydney, pp. 160-175. It will be noted that few of these references are uncritical in their discussions of Brown, but it is still clearly treated as the leading case. 4 Theoretical approach This paper is far from the first academic response to the decision in Brown. Analysis of Brown has combined with debates in the United States to produce a transatlantic debate on sadomasochism. This paper will review that debate and identify three principal theoretical approaches.6 On analysis, however, none of these approaches are conclusive. Each theory proceeds from fundamental premises, and essentially applies those premises to Brown. Consequently, each theoretical argument is only likely to be persuasive to those who accept the fundamental premises. The liberal and the conservative will never see eye to eye on Brown, simply because one adheres to liberalism, and the other to conservatism. To resolve this dilemma, this paper requires a theoretical approach which allows a principled conclusion regarding consent to sadomasochistic sex,7 but does not require one to hold specific fundamental views – a theoretical approach equally open to liberalism, conservatism, and feminism. The approach suggested is that of treating Brown as a ‘hard case’. The approaches of Hart and Dworkin to the resolution of hard cases will be discussed. Dworkin’s approach will be preferred, because it focuses on principles, and thus allows a debate on principles, while Hart’s ‘judicial discretion’ approach shifts decision-making responsibility to judges, who apply their own internalised ethics. 6 These are outlined below, and discussed in detail in Chapter Five. 7 In this thesis, “consent to the infliction of actual or bodily harm in the course of sadomasochistic sex” and “consent to sadomasochistic sex” or “consent to BDSM” are used interchangeably; the latter two used as abbreviations for ease of syntax. The acronym BDSM is fully explained in Chapter Two but stands for bondage and discipline, dominance and submission, sadism and masochism. 5 Outline of argument One difficulty with academic debate regarding sadomasochistic sex is that this form of sexuality is not well understood. Nowhere yet, with the possible exception of Bill Thompson’s book Sadomasochism, has a serious attempt been made to explain this form of sexuality. This thesis commences, in Chapter Two, by attempting that task. It describes how power rather than pain is the core of sadomasochistic sex. The principal roles (dominant, submissive and ‘switch’) are discussed, along with the variety of relationship forms between them. Next, a primer on forms of sadomasochistic sex is given, along with an assessment of the legal position of each. Finally, a discussion of the ethics8 of sadomasochistic sex, as accepted by its participants, is undertaken. This assessment of the nature of sadomasochistic sex places the reader in a position to assess Brown. Chapter Three outlines the Court of Appeal result, the opinions given in the House of Lords, and the European Court of Human Rights judgment. Chapter Four examines the political and legal responses to Brown. In particular, attention is drawn to R v Wilson, a subsequent case which was distinguished from Brown but which nevertheless seems to cast doubt on the original decision. Next, the assessment by the UK Law Commission is discussed, along with the failure of the Commission to tender a final report. Finally, the jurisprudence of other nations (principally the USA, but also Australia and Canada) is considered. Chapter Five turns to the academic debate. Three principal theoretical positions are identified and discussed. 8 The term is used here in a behavioural, rather than a philosophical, sense. 6 The first is liberalism, based on Mills’ statement that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”9 Liberals oppose the outcome in Brown. Second, ‘critical feminism’ is discussed. This viewpoint argues that the intersection of sex and violence holds nothing but danger for women. These basic arguments are provisionally accepted.