By Sophia Hesling
R v Brown is one of the most interesting cases within Criminal law. Briefly, this case is about a group of homosexual men who were accused of engaging in severely violent sexual activities in private, and of which video recordings of certain acts had been found. Their claim rested on the fact that all of it was consensual, but yet they were charged with ‘actual bodily harm’.
It was largely portrayed in the media as a perverted action by a group of ‘evil’ men, with Lord Templemann (majority) calling the use of violence within these relationships ‘uncivilised’ and an ‘evil thing’. It set a precedent that you cannot consent to s47 (ABH), s20 (GBH), s18 (GBH with intent) under the Offences against the person Act 1861. Yet, this legal basis has been questioned with people claiming this conclusion to be based on homophobic guidelines of the time. With Mackenzie (Feminist judgments: from Theory to Practise) stating that their actions of ‘controlled, consensual role should not be equated with the violence and cruelty of physical abuse inflicted on another without consent’. And only 5 years later under Wilson, their use of pain within sexual relations was defended as the ‘privacy of the matrimonial home is not … a proper matter for criminal investigation’.
So what was the major difference between the two cases? Both used violence, although in differing degrees. In Brown there was a gradual progression of pain, with safe words used, but in court the original 16-hour film was cut down purely to include the ‘highlights’ or more shocking images. Nevertheless, within Wilson, the use of branding of the husband’s initials, with a hot knife, was classed as a view of tattooing and cosmetic enhancement, not purely for sexual behaviour. Therefore, the largest difference can be argued to be the relationship between the two people, one was a married relationship and the other a same-sex causal relationship between a large group of people. This difference has recently been acknowledged within academic judgements and other cases; with Lord Slynn acknowledging that sado-masochistic relationships between two men may be criminalised, yet identical acts when carried out by more than two men and a woman or more than two women are lawful. Does this suggest historical ‘controversial’ cases are partial controversial because of the viewpoint of the leading judges and their distaste for same sex, particularly between men, relationships? Or simply does this show the development of the idea of ‘rough sex’ in relationships, suggesting a more accepting ideal emerging?