Fifty shades of Brown

E L James’ debut erotic novel has loosened modern morals; shouldn’t the law, then, keep up with the times, asks Richard Easton

When hardware stores like B&Q predict a surge in sales of rope and cable ties following Fifty Shades of Grey's cinematic release on 13 February, it is clear that S&M has moved from sexual subculture to normal bedroom antics.

But is English law a prude when it comes to consensual sadomasochistic harm? And should the Law Commission, which this year is considering reform of offences against the person, look again at consent and assaults?

Fifty Shades may be to some the BDSM equivalent of Mills
& Boon but, in law, the injuries inflicted on Anastasia Steele could leave a real-life Christian Grey in handcuffs, and not the pink fluffy kind.

The leading case on consensual sadomasochistic assaults is the infamous R v Brown [1994] 1 AC 212, where the House of Lords held that S&M did not provide a "good reason" for causing bodily harm, namely sandpapered testicles and nailed phalli, to willing others. "Good reasons" for consensually causing actual or grievous bodily harm include surgery (from medically necessary transplants to cosmetic labiaplasty procedures), sports (from paraplegia-risking rugby to brain-damaging boxing), horseplay (sublimated S&M), and tattooing.

Lord Jauncey's fears in Brown regarding the "proselytisation and corruption of young men" led to criticism that the decision was homophobic. However, Brown was later applied to uphold a conviction arising out of an unwedded heterosexual couple's S&M acts: R v Emmett, The Independent (CS), 19 July, 1999 (CA).

Hopes that the European Court of Human Rights would defend individuals' privacy
were dashed when the Strasbourg court decided
that the prosecution of the homosexual sadists in Brown was a proportionate use of the criminal law to protect health: Laskey v United Kingdom (1997) 24 EHRR 39.

Yet judicial squeamishness about rummaging through consenting adults' sex lives could be detected within Brown: two of the five law lords had, after all, dissented. And Lord Justice Russell in the Court of Appeal, when considering Brown, somewhat disingenuously held that a husband's branding his initials onto his willing wife's backside was equivalent to tattooing: R v Wilson [1997] QB 47. Russell LJ must not have read the buttock-branding scene in the S&M classic Story of O.

Other judges have similarly stretched Brown. When faced with the task of summing up
a 2011 case involving three
sexual assaults and a single sadomasochistic actual bodily harm (ABH), His Honour Judge Peter Murphy considered it "absurd and unworkable" to direct jurors that they should consider the defendant's arguments regarding consent in the context of the three sex offences but not the assault. He, therefore, "broke free of [his] restraints [ie Brown] and left the question of consent to the jury in the same terms on all four counts" (Flogging live complainants and dead horses: we may no longer need to be
in bondage to Brown, Crim.
L. R. 2011, 10, 758-765). The defendant was found not guilty on all counts.

Jurors too have struggled with Brown. In 2013 an Ipswich jury acquitted Mr Steven Lock of an apparently consensual ABH by buttock beating, inspired by Fifty Shades of Grey. It appears that Lock's jury was simply uncomfortable with the notion that re-enacting a best-selling novel was unlawful.

Will the rule in Brown, then, wither away by being subverted by judges and ignored by jurors? And is it time for director of public prosecutions Alison Saunders to have regard to what is happening in Ann Summers and to publish specific guidelines on when those engaging in mutually delightful but rough BDSM should be charged? Arguably, dominators and dominatrices deserve
to know whether they would
face prosecution for their pleasurably painful sex lives:
see R (on the application of Purdy) [2009] UKHL 45. And, perversely, it is not only sadists who risk a criminal record: a total of 28 masochistic 'victims' in Brown were cautioned for aiding and abetting offences against themselves.

Also, notwithstanding the Strasbourg Court's decision in Laskey, might an argument still be made that prosecuting private, consensual acts of sadism violates individuals' privacy? Indeed, Laskey itself suggests that relevant factors in determining the proportionality of such prosecutions would be the degree of injury, whether the acts were 'unpredictably dangerous', and the level of organisation.

Oddly, the Law Commission, in its latest consultation that ended on 11 February, has made no suggestion that the issue of consent and BDSM should be revisited: 'Reform of Offences against the Person (Consultation Paper No 217)'. In its 1995 'Consent in the Criminal Law' (Consultation Paper No.139),
the Law Commission, however, proposed that the level of harm at which a person's consent could not provide a defence should be raised to 'serious or disabling injury'.

For now, though, the law on BDSM must remain in bondage to the dominating precedent
of Brown. SJ