ON-FATAL OFFENCES AGAINST THE PERSON:

R v Brown [1994] 1 AC 212 (sadomasochism)

Facts: Appellants, a group of sado-masochists, willingly and enthusiastically participated in
the commission of acts of violence against each other for sexual pleasure. They pleaded not
guilty on the offences under s20 and s47 of OAPA 1861, relating to the infliction of wounds
or actual bodily harm on genital and other areas of the body of the consenting victim.
Ruled: Prosecution did not have to prove lack of consent by the victims, and the appellants
were re-arraigned, pleaded guilty, some to offences under s20 (wounding) and all to
offences under s47 (ABH), and they were convicted. Appellants appealed against the
conviction on the ground that the judge had erred in his rulings, in that consent of the victim
to the acts on him prevented the prosecution from proving an essential element of the
offence, whether under s20 or s47.
Held on first appeal (CA): Appeal dismissed.
Held on second appeal (House of Lords)
-   Appeal dismissed
-   Although a prosecutor had to prove absence of consent in order to secure a
conviction for mere assault, it was not in the public interest that a person should
wound or cause ABH to another for no good reason and, in the absence of such a
reason, the victim’s consent afforded no defence to a charge under s20 or s47 of
the Act of 1861
-   Satisfying of sado-masochistic desires did not constitute such a good reason to
wound or cause ABH to another
-   Since some appellants had admitted wounding and and all had admitted causing hurt
or injury calculated to interfere with the health or comfort of the other party, and
since such injuries were neither transient nor trifling, the question of consent was
immaterial and the judge’s ruling had accordingly been correct
-   Lord Templeman: ‘the authorities dealing with the intentional infliction of bodily
harm do not establish that consent is a defence to a charge under the Act of 1861.
They establish that the courts have accepted that consent is a defence to the
infliction of bodily harm in the course of some lawful activities. The question is
whether the defence should be extended to the infliction of bodily harm in the
course of sado-masochistic encounters’, which can only decided by policy
considerations and the public interest
-   ‘The violence of sado-masochistic encounters involves the indulgence of cruelty by
sadists and the degradation of victims. Such violence is injurious to the participants
and unpredictably dangerous. I am not prepared to invent a defence of consent for
sado-masochistic encounters which breed and glorify cruelty and result in offences
under sections 47 and 20 of the Act of 1861.’
-   DISSENTING Lord Mustill: his main point is that the House of Lords are not bound,
and can consider anew the question of whether public interest requires s47 of OAPA
1861 to be interpreted as penalising an infliction of harm which is at the level of
ABH, which is inflicted in private, with the consent of the recipient, for the
gratification of sexual desire and not animosity, and not for profit
-   There is no general theory of consent, as seen by the failure to deduce why
professional boxing appears to be immune from prosecution. So the court is making
a value judgment in each case.
 -   In the case of boxing, ‘the boxers display skill, strength and courage, but nobody
pretends that they do good to themselves or others. The onlookers derive
entertainment, but none of the physical and moral benefits which have been seen as
the fruits of engagement in manly sports’ — ‘it is in my judgment best to regard this
as another special situation which for the time being stands outside the ordinary law
of violence because society chooses to tolerate it’
-   Arguments in court that the appellants are only guilty because their acts were
criminal apart from the OAPA 1861 (through the Sexual Offences Act 1967), so
though consent would be originally available as a defence, it is now ruled out. But
this argument is not correct on practical reasons, as it would mean that the penal
status of the acts for the purposes of s47 would depend on whether they were done
by two adult males or three adult males (as for two adult males, it would not be
indictable under the SOA 1956), and also because there is nothing ‘to suggest that
the consensual infliction of hurt is transmuted into an offence of violence simply
because it is chargeable as another offence’
-   The state should not ‘interfere with the rights of an individual to live his or her life
as he or she may choose no more than is necessary to ensure a proper balance
between the special interests of the individual and the general interests of the
individuals who together comprise the populace at large’
  
R v Wilson [1997] QB 47 (consensual branding, tattooing, Brown)
Facts: The appellant branded his initials on his wife’s buttocks at her instigation, using a hot
knife. He was charged with assault occasioning ABH contrary to s47 of the OAPA 1861.
Ruled: Despite the wife’s consent, the judge held that he was bound by authority to direct
the jury to convict. Appellant was convicted. Appellant appealed.
Held on appeal (CA)
-   Appeal allowed
-   Russell LJ: R v Brown ‘is not authority for the proposition that consent is no defence
to a charge under section 47 of the Act of 1861, in all circumstances where actual
bodily harm is deliberately inflicted’, as it only related to a ‘sado-masochistic
encounter’
-   Their Lordships in Brown also recognised that there must be exceptions to the
exclusionary rule, in referring to tattooing ‘as being an activity which, if carried out
with the consent of an adult, does not involve an offence under section 47, albeit
that actual bodily harm is deliberately inflicted’
-   ‘We cannot detect any logical difference between what the appellant did and what
he might have done in the way of tattooing….we do not think that we are entitled to
assume that the method adopted by the appellant and his wife was any more
dangerous or painful than tattooing’
-   ‘It is not in the public interest that activities such as the appellant’s in this appeal
should amount to criminal behaviour. Consensual activity between husband wife, in
the privacy of the matrimonial home, is not, in our judgment, normally a proper
matter for criminal investigation, let alone criminal prosecution.’

R v Dica
 FACTS: Defendant was diagnosed as being HIV positive. Knowing this, he had unprotected
sex with two women, convincing the first woman not to use protection under the promise
that he had had a vasectomy. The women disputed his claim that they were aware of his
condition and had consented with full knowledge of the risk.

The CA disagreed with the trial judge’s refusal to allow the issue of consent to be put before
the jury (on the grounds that Clarence was no longer good law after Brown established that
a person cannot consent to GBH). Consent was a valid issue.

The case established that:

a)       Reckless transmission of serious sexual diseases constitutes maliciously inflicting GBH.

b)      If a victim does consent to the risk of HIV transmission, this will provide a defence under
s.20. (this issue of whether consent is informed is elaborated on in Konzani)

Because the victims in Dica did not consent to the risk, the defendant was ultimately
convicted.

R v Konzani

FACTS: The defendant was charged with three count of inflicting GBH under s20 of the OAPA
1861. He had unprotected sex with three people without informing him of his position as
HIV-positive, who all subsequently contracted HIV themselves.

Issue was whether the victims had consented to the transmission, given that they had
consented to sexual intercourse. Judge ruled that there could be no consent unless it was
“informed and willing” and he was convicted. CA supported trial judge and dismissed the
appeal. Judge LJ agreed with prosecution that there was a difference between “running a
risk” (as in this case) and “consenting to that risk” (as expounded by CA in Dica).

Also the issue of whether the defendant held a reasonable or genuine belief that the
complainants were aware of his status and thus consented to the risk. Konzani relied on the
defence of reasonable or genuine belief against s 20 of the Act. However, on appeal it was
found that Konzani’s concealment of his HIV status was incongruent with honesty. Where
Konzani had knowingly concealed the fact that he had HIV from his sexual partners, his
sexual partner’s personal autonomy could not reasonably be expected to extend to
anticipate his deception.

TOMIE:

In Brown, the majority held that it was contrary to public policy to allow sado-masochistic
sex as an exception to the rule disallowing consent to GBH. Notably, the decision was not
made on the facts of the case and was rather a broad inquiry into all activity that might
conceivably fall within the cateogy (and therefore the worst instances they could imagine). 

Article argues that Brown is even more problematic than commonly argued because it
adopts an analysis based on generic categories of activity, which produces a form of
jurisprudence that is piecemeal and arbitrary. Removes some underlying rationales and
considerations of freewill and victim vulnerability from the decision as to whether the
defence of consent is allowed on any set of facts. 

Offences against the Person Act 1861 ss 47, 20, 18 (only)

47 Assault occasioning bodily harm.

Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily
harm shall be liable to be kept in penal servitude.

20 Inflicting bodily injury, with or without weapon.

Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon
any other person, either with or without any weapon or instrument, shall be guilty of a
misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude.

18 Shooting or attempting to shoot, or wounding with intent to do grievous bodily harm. 

Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any
grievous bodily harm to any person, with intent, to do some grievous bodily harm to any
person, or with intent to resist or prevent the lawful apprehension or detainer of any
person, shall be guilty of felony, and being convicted thereof shall be liable to be kept in
penal servitude for life.

Ireland and Burstow [1998] AC 147 (stalking)

Facts:

Ireland: Ireland convicted of assault occasioning bodily harm ,in the sense of psychiatric
harm, after pleading guilty to making malicious telephone calls to women. He appealed
against the dismissal of his appeal against conviction.

Burstow: appeal held jointly with Ireland. Infliction of grievous bodily harm.

V had endured a long process of harassment from D, who had stalked them using many
devices. No physical contact that had directly or indirectly impacted upon V.   

Held: 

Ireland: Appeal dismissed, held that a recognisable psychiatric illness suffered by a victim of
malicious telephone calls amounted to ‘bodily harm’ under s47 of the Act. Unanimously
held that a silent telephone call would constitute an assault, inter alia, it caused V to
apprehend the possibility of immediate violence. 
Psychiatric harm not considered to be bodily harm at original drafting, but should now be
construed in light of current scientific knowledge. Judgments given take their decision to
have abolished the rule that mere words cannot constitute an offence. 

Lord Steyn- decisively concluded that the concept of battery could not accommodate the
causing of psychiatric injury by telephone. 

Restrictive view of offence of battery held. 

Burstow: HL approved a reading of ‘inflict’ as a near synonym for ‘cause’ when the harm
consisted of psychiatric injury in the context of maliciously inflicting grievous bodily harm.
Was to be determined on normal causal principles. Confirmed that psychiatric injury could
constitute bodily harm. If sufficiently serious, this could fall under s20 and s18. 

Lord Hope- ‘Inflict’ is to be interpreted as a synonym for ‘cause’.

Lord Steyn (majority)- did not consider the two terms to be synonymous but took it to be
natural to speak of inflicting psychiatric injury without implying, in that context, any direct
or indirect violent contact. 

Restrictive view of battery taken in Ireland was obiter.

Principles:

Psychiatric illness, attested to by expert evidence, could constitute bodily harm under s47.  

‘Inflict’ is to be interpreted as a synonym for ‘cause’.

Dica [2004] EWCA Crim 1103

Facts

The defendant, knowing that he was HIV positive, had unprotected consensual sexual
intercourse with two women, who were both subsequently diagnosed as HIV positive. The
defendant was charged with two counts of inflicting grievous bodily harm on the basis that
he had recklessly transmitted the disease to the women when they did not know of, and did
not consent to, the risk of infection.
 
Principle in relation to the HIV transmission and the discussion of sexual offences
The judge ruled that it was open to the jury to convict the defendant of the offences alleged
and that whether the women knew of the defendant's condition was irrelevant since they
did not have the legal capacity to consent to such serious harm.
 
Held:
Convicted of both counts.
 
R v Clarence(the case Dica invalidated) and section 20
  Judge Philpot says that it was open to the jury to convict the defendant of the
offences alleged in the indictment, on the basis that its standing as "an important
precedent(R v Clarence) has been thoroughly undermined, and ... provides no
guidance to a (first) instance judge"
 Section 20 in Clarence was interpreted badly
 Married women always consents to sex (it appears to me that this offence
cannot be committed unless an assault has in fact been committed, and
indeed this has been so held ..." – Al Smith J)
 Without direct personal action of some kind, a conviction under section 20
would be wrong. ("clearly points to the infliction of direct and intentional
violence, whether with a weapon, or the fist, or the foot, or any other part of
the person, or in any other way not involving the use of a weapon, as, for
instance, by creating a panic at a theatre ..." – Wills J)
 Stephen J, at p 41, thought that the section was dealing with, "the direct
causing of some grievous injury to the body itself with a weapon, as by a cut
with a knife, or without a weapon, as by a blow with the fist, or by pushing a
person down." 
 Pollock B thought "the natural consequence of some act in the nature of a
blow, wound, or other violence which is in itself illegal, and not merely the
result of conduct which is immoral and injurious by reason only of a fraud or
breach of good faith; or to put the proposition in another form, 'grievous
bodily harm' which is the ultimate effect of treachery in the doing of that
which is not a 'wounding or inflicting, etc, with or without any weapon or
instrument,' but is the doing of an act of an entirely different character, is not
within the terms of the statute."

Principles in the rest of the judgement 

Issue of fraud in terms of concealment and the consequences if consent were vitiated.
“consent obtained by fraud is no consent at all is not true as a general proposition either in
fact or in law.” – Wills J
 
The effect of this judgment in relation to section 20 is to remove some of the outdated
restrictions against the successful prosecution of those who, knowing that they are suffering
HIV or some other serious sexual disease, recklessly transmit it through consensual sexual
intercourse, and inflict grievous bodily harm on a person from whom the risk is concealed
and who is not consenting to it. In this context, Clarence 22 QBD 23 has no continuing
relevance. To the extent Clarence suggest that consensual sexual intercourse of itself was to
be regarded as consent to the risk of consequent disease, again, it is no longer authoritative.

Konzani [2005] EWCA Crim 706, paras [34]-[46] (HIV transmission)

Facts

The defendant was specifically informed of the risks of passing the infection on to any sexual
partners, and its dire consequences. Thereafter he had sexual relationships the three
complainants. He did not tell any of them that he was HIV positive, and he repeatedly had
unprotected sexual intercourse with them, knowing, that by doing so, he might pass the
infection on to them. In consequence, each contracted the HIV virus.
 
Principle:
 
Consent

1. the judge explained that before the consent of the complainant could provide the
appellant with a defence, it was required to be an informed and willing consent to
the risk of contracting HIV.
2. He returned to the clear and important distinction between "running a risk on one
hand and consenting to run that risk on the other", pointing out that the prosecution
had to establish that the complainant "did not willingly consent to the risk of
suffering the infection in the sense of her having consciously thought about it at the
time and decided to run it".

J Tolmie, ‘Consent to Harmful Assaults: The case for moving away from category-based
decision-making’ [2011] Crim LR 758-765

  For a simple battery in which no actual bodily harm is intended, risked or caused,
consent to the physical contact means no offence takes place.
 However, if the contact is intended to cause, or risks, physical harm there is a point
at which consent is not legally available to answer criminal charges in respect of the
contact and ensuing harm (subject to any exceptions that may apply irrespective of
harm).
 
Brown [1994]
§  Recognised exceptions include properly conducted games and sports, surgery,
reasonable chastisement of children, bodily decoration such as ear piercing and
tattooing, ritual male circumcision, religious mortification and dangerous exhibitions.
§  If consent is presumptively available once the critical level of harm is reached then the
onus is to demonstrate that the behaviour has such limited social utility and such a
high risk of further unintended harm that it should not be permitted even if practised
with full consent--this has been dubbed the "social disutility" approach.
 

This article criticises Brown

1. First, it is a process of reasoning that is necessarily arbitrary and piecemeal.

-   attempting to apply Brown, 52 necessarily evolves as a "patchwork" of
categories of "lawful" and "unlawful" activities, loosely based on
assessments about what is "normal" behaviour and what is not. It
employs analogy based reasoning to determine which "category" any
particular activity falls within.
 2. Secondly, such a form of reasoning prevents considerations of freewill and its
dilution from having any practical relevance in the ultimate decision as to whether to
allow or disallow the defence of consent on any set of facts.
-   The principles set out in Brown also operate to minimise
freewill/dilution of freewill considerations by weighting harm twice,
-   the majority approach in Brown effectively downplays personal
autonomy as a relevant consideration, it could be suggested that Lee
goes too far in the opposite direction and that the subsequent case of
Barker  illustrates the dangers involved in giving weight to individual
choice. 
3. Thirdly, it renders considerations of harm relevant to this decision only in the most
general and hypothetical sense.
-   it is not possible to realistically and accurately assess the risk of
unintended harms in any particular case without an enquiry into the
particular manifestation of the activity in question. This is because many
behaviours which might be harmful if conducted in an amateurish or
dangerous fashion can have their risks virtually minimised, or greatly
reduced, if they are conducted differently. Conversely, activities which
might ordinarily be quite safe can be conducted in a fashion which
makes them extremely dangerous. 
 
Three justifications that have been used to set parameters on the availability of consent as a
response to charges involving interpersonal violence:
§  a wide range of issues reduce to variations of a concern about the individual and
collective harm potentially caused by certain activities.22 For example, concerns
about the level of the physical harm that is risked or intended, the unpredictable
nature of the risk of any possible harm, the degree of risk that it will occur, more
intangible harms such as any breaches of the peace that might be generated, 29 and
the durability or treatability of the harm. 
§  The vulnerability of the victim and/or the exploitative nature of the circumstances in
which consent is given raise doubts about the value of the autonomy or freedom of
choice that the victim is exercising.32 The victim might, for example, be vulnerable
due to age, mental incapacity, past untreated psychological trauma or intoxication,
without being legally incapable of giving consent. Exploitative circumstances can
include a power imbalance in the victim's relationship with the perpetrator
§  A third consideration that emerges from the case law is the notion that the criminal
law has a legitimate role in enforcing certain fundamental moral standards when
dictating what activities people may lawfully pursue. it is my own position that the
criminal law should not be used to enforce moral standards when there is no
"victim" involved. Even if there was a fundamental consensus on certain core values,
it does not follow that infringements of those standards of morality should be
criminalised, as opposed to sanctioned or regulated in some other less costly and/or
more effective manner.
§  A parallel consideration to that of individual autonomy is the somewhat vague
concept of the "social utility". An interesting alternative approach to social utility,
emerging in the recent case law, could be dubbed a "human rights approach". Under
this, even if it is not supported by a majority consensus, if the activity can be seen as
 the individual expression of a fundamental human right--for example, the right to
privacy, family, or religious belief--then it performs a useful social function.
 
Conclusion:
In this article I have argued that the approach taken by the New Zealand Court of
Appeal in Lee 
-   gives better expression to the full range of

 considerations that weigh for and against allowing participants to consent to

potentially harmful activities--including considerations of freewill and the
disparities in personal power that compromise that.
-   It also allows those considerations to be appraised directly on the facts of the
individual case and thus avoids some of the pitfalls associated with a
jurisprudence built on category based decision making.
-   Finally, it gives expression to social tolerance, a value that is increasingly
significant in an era of global mobility where legal rules need to accommodate
populations characterised by considerable cultural diversity and where
developing technologies promote a rapid pace of cultural evolution.

A CHANGE OF NORMATIVE POSITION: DETERMINING THE CONTOURS OF CULPABILITY IN

CRIMINAL LAW

Ashworth Article

- Considers possible justifications for holding a person who intentionally attacks another
criminally liable for further unintended consequences that result from the attack. 
- Argues that neither the purported justification nor the limiting principles sometimes
attached to it are convincing reasons for enhanced liability

Moderate constructivism is in the middle between two other approaches on the

spectrum of liability for unforeseen consequences: the unlawful act theory and
orthodox subjectivism 

Unlawful act theory: argues that the most significant moral threshold is crossed when a
person knowingly embarks on an unlawful enterprise, and that there- after that
person may fairly be held liable for whatever consequences are caused (however
unforeseen. Indicates a wider scope for criminal liability 

Orthodox subjectivism: maintains that the limits of a person’s criminal liability should be
determined, in principle, by what he or she intended or foresaw. Much narrower
scope for criminal liability 

Unlawful Act Theory:

- doctrine propounded by Sir Edward Coke in the seventeenth century: that if a man
shoots at another’s chicken and by mischance kills a person, this is murder, “for the
act was unlawful”
- On this approach it is the commission of any crime against another that is taken to
supply sufficient culpability to justify extended liability: by deciding to commit such
an offense, the defendant crosses a significant moral and criminal threshold, and is
rightly held not only causally responsible but also morally responsible for resulting
harm, since it would not have resulted if D had not crossed the criminal threshold.
Thus, once on the wrong side of the criminal law, it is appropriate that D should be
answerable for any resulting harm that can be said to have been caused by him or
her.
- Theory remains part of the current English law of homicide through the doctrine of
unlawful act manslaughter

Criticisms:

- the gap between the fault involved in the unlawful act and the death resulting is much
too great to justify liability for a serious offence

Supporters:

- would point to the inherent criminal- ity of what the defendant was doing and to the
fact that this criminal ven- ture caused the victim’s death. The defendant had
knowingly crossed the criminal threshold, and should therefore be labeled in such a
way as to make clear the responsibility for the final outcome. 

Orthodox subjectivism:

- from respect for the moral autonomy of all individuals, subjectivists argue that criminal
liability should not be imposed in respect of a given harm unless D intended to cause
or knowingly risked causing that harm (the principle of mens rea)
- D should be judged on the facts as he or she believed them to be (the belief principle). 
- By respecting these principles, criminal liability is tied as closely as possible to what D
intended, knew, or believed when involved in the relevant behavior. 
- criminal liability for causing really serious harm should be based on an intention or
recklessness as to causing that level of harm, and it is wrong for liability for an
offense of recklessly causing serious harm to be based on the lesser culpability
requirement of knowingly taking a risk that some injury (not necessarily a serious
injury) might result
- two principles therefore leads to a third, the principle of correspondence: that in
relation to each component of the conduct element in an offense, the requirement
of fault should be at the equivalent level
- the principle of mens rea, the belief principle, and the correspondence principle may
be regarded as maximizing the choice of individuals about how they wish to organize
their lives and as enabling them not only to choose whether to risk crim- inal
conviction but also to choose whether to risk conviction in respect of harm of a
particular kind or degree
Modern constructivism- 
- while moderate constructivists tend to subscribe to a form of subjectivism, they argue
(in contrast to orthodox subjectivists) that it does not necessarily lead to doctrines
such as the correspondence principle
- Supporters of the neo-Kantian view tend to argue  that the subjective requirements
should be coextensive with the conduct and/or outcome specified in the definition
of the offense (the correspondence principle), and they therefore oppose
constructive liability, whereby fault as to a lesser harm can ground liability in respect
of a more serious harm.
- There seem to be three essential features of modern constructivism. 
- 1. The trigger for liability must be intentional conduct that may be said to amount to a
change of normative position vis-à-vis the consequences of that conduct. 
- 2. The intentional or knowing conduct must be the commission of a crime that belongs
to the same family as the (unforeseen) elements for which liability is in question. 
- 3. There must be a measure of proportionality, or no great moral distance, between
the intended wrong and the harm resulting.

- Moderate constructivists tend to differ from many orthodox subjectivists in their view
of the proper impact of moral luck on the criminal law, maintaining that the starting
point should be the fact that D is responsible for causing the unanticipated and
unforeseeable death and not, as many orthodox subjectivists would argue, the fact
that D intended nothing more than a minor assault. 

Ashworth’s conclusion regarding this

- But it is difficult to see why this difference should play such an important role in this
particular debate: what D intended to do is also the basis of liability for moderate
constructivists too, since that is where they find the significant change in D’s
normative position, and so it is right to focus on the moral quality of that act in
relation to consequences that flow from it. 
- No convincing argument has yet been produced by moderate constructivists to explain
why the change of normative position inherent in D’s original intentional conduct
should be accorded such far-reaching moral and legal significance

Slingsby [1995] Crim LR 570-2 (nb Crown Court decision: summary and case note only)
(injury caused during sexual intercourse)

Facts
 The defendant, Simon Slingsby, penetrated the complainant’s vagina and
rectum with his fingers, accidentally cutting her with the signet ring he was
wearing. 
 The complainant did not notice the internal cuts, which later became
infected, causing the complainant to develop septicaemia and die. 
  The defendant was convicted of manslaughter under sections 20 and 47 of
the Offences Against a Persons Act 1861, in the Crown Court.
Issue
 At its highest, whether Slingsby should be convicted of manslaughter and
whether his actions had constituted assault or unlawful under ss 20 and or 47
of the Act. 
 The actions were lawful and not assault in circumstances where no harm was
intended and consent had been obtained to carry out vigorous and legal
sexual acts.

Decision / Outcome

 Judge J held that the activity of inserting fingers into the vagina and rectum
for sexual pleasure was not in itself an assault and was not an unlawful act,
where consent had been obtained. 
 The defence of consent to injury had not arisen into question as there had
been no intent to injure the complainant.
  Rather, it was an unfortunate and accidental consequence of the activity that
only occurred because the defendant was wearing a signet ring. It had only
been considered an assault as an injury had occurred. 
 Therefore, it was held to be contrary to principle to convict Slingsby of
manslaughter where an unforeseen and unintended injury had occurred,
arising from vigorous consensual sexual activity. 
 The appeal was allowed and the conviction was quashed.