Case law in england and wales
The case law in England and Wales on the nature and degree of harm for which the consent of “the victim” provides a defence to charges under the Offences Against the Person Act 1861, at best, is arbitrary and inconsistent and, at worst, displays judicial prejudice. Principled statutory reform is urgently required.
The Offences against the Person Act 1861 has been for a long period now, a very much debatable Act of the Criminal Law. The sections which are notably in question are; section 18, section 20 and section 47 Offences against the Person Act 1861. Over the past 140 years since the Act has come into force, judges have been deliberating in cases which have particular reference to this act, about the kind of punishment which should be handed out to the Defendant with regard to his/her actions and so forth. As a consequence of the act being enacted some 140 years back, there has been a lot of criticism about the overall structure and wording of the sections which have caused Judges to make inconsistent decisions whilst displaying judicial prejudice. Structure and wording, which at the time when it was enacted would have been appropriate; however, fails to keep up with modern society and the way in which crimes are committed and therefore interpreting the sections by Judges to correspond to the crime before them has been a relatively difficult issue.
Section 18 Oap Act 1861
One of the main arguments is about ‘consent' and how far someone can go in relation to a type of activity which involves harm to the other person but where there is consent, in other words where is the line drawn when there is valid consent to the harm and does the consent represent a defence?
R v Brown is a very significant case as it is the only case to appear before the House of Lords regarding consent. It is also one of the most controversial judgments of recent years due to the inconsistency that has surrounded preceding and concluding cases with regard to sec 20 and sec 47 Offences against the Person Act 1861.
Lord Templeman in Brown (supra) stated that there are exceptions to bodily harm where consent provides a defence, such as medical surgery, sports, body modification and horseplay (consent to rough and undisciplined play). He went on to say that principally there is a difference between violence which is inflicted for the indulgence of cruelty and violence which is incidental.
R v Brown (supra) as mentioned above is the only case to appear before the House of Lords regarding consent therefore is very important in the decisions and judgments which have been made. The case concerned a group of over 40 sado-masochists homosexuals who participated in consensual acts of violence for sexual satisfaction. The appellants were convicted of offences under sec 20 and 47 of the Offences against the Person Act 1861. The appellants appealed against their convictions and sought to rely on the consent of the ‘victims' as a defence to the charges brought against them. The appeal was ultimately rejected and the convictions stood. One of the reasons that the majority of the House of Lords gave for their decision was that that the conduct which was involved was so immoral that it could not be tolerated by society and had to be punished. So if the House of Lords have said this, and bearing in mind at the time and only until recently, the House of Lords have been the highest Court of Appeal in the land, these must be very significant words and should inevitably have an impact on other cases concerning this area of law, as well as principally bear a resemblance to them, should they not?
Before the decision in Brown there were a number of cases which appeared before the Court of Appeal (Criminal Division) regarding consent and Offences against the Person.
In Donovan the defendant beat a 17 year old girl with a cane for sexual gratification. It was held that he did so to gratify his own perverted sexual desires and was not able to plead his corrupt motive as an excuse (per Swift J in Donovan (supra)).
This seems to be clear, but the following cases seem to conflict with the cases subsequent to Brown. In Attorney-General's Reference the defendant and victim agreed to a fist fight from which the victim suffered a bruised face as well as a bleeding nose. Lord Lane CJ stated in his judgment that it is immaterial whether the act occurs in public or in private; it is an assault if actual bodily harm is intended and/or caused. This seems to conflict with a later case of R v Wilson (Alan) where the Husband branded his initials on his wife's buttocks, it was held that as these two people were married and had done the act within their matrimonial home, it was not a matter for the courts. “Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, normally a proper matter for criminal investigation, let alone criminal prosecution” (per Russell LJ in Wilson (Alan) (supra)). This seems to go against what Lord Lane CJ said in Attorney-General's Reference (supra) as he said that it was immaterial whether it was in public or in private, so how can Russell LJ suddenly say that this is not a matter for the courts? Also in R v Brown (1994) one of the main points of the dissenting judge's was that it was done in the privacy of a home and whoever was there had chosen to be there. So does this mean that if you are married you can take part in those activities, but because you are homosexuals you cannot take part in activities of that kind? This clearly illustrates that judicial prejudice is at the heart of the issue of the ambiguity surrounding the wording of the OAP Act 1861, by having such inconsistent reasoning and a slight, let it be stressed a very slight, anchor of preferential treatment toward whom the judge's desire.
R v Aitken (1992) was decided shortly before Brown, it involved a group of RAF officers who celebrated the end of their exams by pouring white spirit over the victim's fire-resistant suit and setting it alight. The victim suffered life threatening burns to 35% of his body. Aitken was found to be not guilty of inflicting grievous bodily harm as he had considered and assumed that the victim consented to the activity, and crucially, because they were participating in rough and undisciplined horseplay, the consent could be considered legitimate. This however displays a great deal of discrepancy due to the fact that in Brown, the activities which they were participating in were carefully controlled, but in Aitken they were not and were arguably much more dangerous. It seems to be the case that the judges are applying their prejudices to whichever case they desire and that is severely detrimental as we live in a free and democratic society and in order for society to have a healthy function, we not only need, but should be exempt from any slight touch of judicial prejudice. This is why the OAP Act 1861 is in urgent need of reform, as it not only has a slight or trifling link to the prejudice displayed before us, but also because it is very much outdated and judges are finding it increasingly difficult to apply to modern cases.
As much as they did not by any means condone the action of the appellants, the dissenting minority in Brown also had the same view that there is no place for Criminal Law to interfere within the sexual acts which are performed by consenting adults within in their private surroundings. The exception to this would have to only be if certain acts were performed which caused a detriment to the lives of the ones participating in the act. Where can we draw the line when it comes to saying, “you can do that, but you can't do that” ?
What needs to happen is that there needs to be coherent and fluid statutory provisions put in place, not only to provide a clear and unambiguous route for judge's, but also for juries and for the public - after all it is public policy which the majority of the judge's refer to. There is no doubt that it would clearly be in the public's interest if people were charged with crimes and sentenced accountable to their moral culpability, and not charged because of some dated and confusing legislation.