Sadomasochism: Unleashed?

Does a dominatrix commit an offence when severely bruising the buttocks of her willingly submissive partner? 'Yes', if the welts are more than transient and trifling, or, 'no' if she appears before a Suffolk jury. Does the acquittal on 22 January 2013 of Mr Steven Lock at Ipswich Crown Court suggest that causing actual bodily harm during mutually consensual bondage is no longer a crime?

It took a mere 15 minutes for Mr Steven Lock's jury to find him not guilty of assault occasioning actual bodily harm to his S&M partner, divorcée Ms X. The fetishistic romance of Lock and Ms X began over the internet. Within a year, the pair had moved from cyberspace to threesomes and bondage sessions. Ms X then took the unusual decision to agree to enter into 'slavery', with Mr Lock being her master. Probably unaware that, in law, there is no property in the human body, Ms X branded herself with a tattoo reading 'the property of Steven Lock'.

Ms X then entered into a written 'contract' with Mr Lock granting him dominion over her until 12pm on 11 August 2012. She signed the document and confirmed that she was of "sound body and mind". Had she consulted a lawyer first, she would, of course, have learnt that such a contract would be unenforceable. In Sutton v Mishcon de Reya [2003] EWHC 3166, the Chancery Division had to wrestle with the lawfulness of a sadomasochistic agreement signed by a gay couple, Mr Sutton and Mr Staal. The pair's deed of cohabitation purportedly bound them to a 'master and slave' relationship, with Sutton, a former Virgin Atlantic air host and male escort, as the master and Staal, a wealthy Swedish businessman, as the slave. The statement of trust represented "an attempt to express [the couple's] sexual relationship in property terms the property relation "sprang from" the desire to give the sexual role play verisimilitude". It was, in the delicately chosen words of Hart J, "an attempt to reify an unlawful ideal" (Sutton, at [23]) and was thus unenforceable.

Ms X, presumably ignorant of the non-binding nature of her contract, submitted to being shackled. However, she soon felt that there ought to be limits on Mr Lock's usage of his property. Mr Lock, living up to his name, padlocked Ms X by the wrists to a bolt embedded in his floor and, after tying a rope around her neck, beat her buttocks with a looped rope. Fourteen bruising strikes landed on Ms X's bottom. Mr Lock had gone too far. Ms X frantically texted an epistolary appeal to a male friend: "He has me chained up like a dog. He is whipping the shit out of me." Mr Lock, possibly mistaking his property's wails of joyless suffering for cries of pleasurable pain, dismissed her from his home when Ms X refused to join him in bed. Mr Lock was soon after arrested by police.

During his trial, Mr Lock admitted, according to The Times, to administering the allegedly offensive blows. Ms X candidly conceded that she "knew what was coming" but did not realise Mr Lock would use "full force". When asked what had inspired him, Mr Lock answered "Fifty Shades of Grey that's where we got the idea from".

It is apparent from The Times' report of the case that Mr Lock had at least recklessly caused actual bodily harm. His jury, nevertheless, acquitted him. Why?

Since 1993, when the House of Lords held in R v Brown [1994] 1 A.C. 212 that consensual sadomasochistic acts did not provide a 'good reason' for causing bodily harm, consent has not been a defence for dominators and dominatrixes to ABH or GBH. The Lords in Brown upheld the homosexual appellants' convictions for assault occasioning actual bodily harm despite the fact that the victims had willingly - ecstatically - consented to stinging nettles being rubbed on their nipples; their testicles being held with spiked gloves; their scrotums being sandpapered; and their prepuces being nailed to boards of wood.

Seemingly confirming suspicions that Brown was a homophobic decision, the appellant in R v Wilson (Alan Thomas) [1997] Q.B. 47 found his conviction overturned after engaging in buttock branding within marriage. The Court of Appeal held - disingenuously for some - that the branding by a husband of his initials onto his wife's buttocks represented "the acquisition of a desirable piece of personal adornment". However, Brown was later applied to S&M between an unwedded heterosexual couple in R v Emmett (Stephen Roy), The Independent (C.S.), July 19, 1999, CA.

Brown's appellants eventually took their case to Strasbourg. In Laskey v United Kingdom (1997) 24 E.H.R.R. 39, the European Court of Human Rights decided that the prosecution of the sadists did not violate article 8. Their prosecution had been a proportionately pursued attempt to protect health; signatory states were, the judges reasoned, entitled to rely on the criminal law to regulate the infliction of physical harm.

So what made Mr Lock's jury return a not-guilty verdict? His actions were according to the well-established authorities without 'good reason'; and, unlike the appellants in Brown, Mr Lock potentially exceeded the implied and express consent of Ms X. Yet Mr Lock was acquitted. Were the Ipswich jurors not bound by the Law Lords to find Mr Lock criminally liable for placing Ms X in bondage?

The Contempt of Court Act 1981 obviously gags Mr Lock's jurors from providing their reasons. However, the mystery of Mr Lock's acquittal might be solved by the inspiration for Mr Lock's sadism: Fifty Shades of Grey. Has the novel normalised sadomasochism? Is S&M now fodder for M&S? Was Mr Lock's jury simply uncomfortable with the notion that re-enacting a best-selling novel - a novel that some of the jurors might themselves have read with interest - was unlawful? Can we infer the presence of a measure of jury equity in the acquittal of Mr Lock?

Would defendants like those in Brown fare as well before a jury now? The case of R v Walsh (unreported) in August 2012 suggests that they might. Mr Walsh, a barrister and former aide to mayor of London Boris Johnson, was charged with possession of extreme pornographic images of fisting and 'urethral sounding'. The pictures were taken at a private sex party involving willing adults. Walsh was acquitted at Kingston Crown Court. Walsh's counsel argued that the images were not 'extreme' because the acts portrayed were (relatively) safe and not uncommon within the gay community; and were not 'pornographic' pictures but personal records of a private event. Mr Walsh's jury concurred.

The prosecution of consensual sadomasochistic sex games certainly pits the paternalistic protection of 'health' (and morals as puritanical jurist Lord Devlin in his post-Wolfenden Report work The Enforcement of Morals (1959) would have had it) against one formulation of Mill's harm principle: 'thou shalt do no harm to others... unless they eagerly want you to'. Is the Brown case as out of touch with jurors as prosecuting counsel Mervyn Griffith-Jones was during the trial of Lady Chatterley? Griffith-Jones infamously asked the jury, invoking as he did so an antiquated dominator: dominated relationship, whether DH Lawrence's novel was one 'you would wish your wife or servants to read?' R v Pengiun Books Ltd [1961] Crim LR 176. Brown appears to pose a similar question to jurors who now have an Ann Summers on their high streets: "Would you wish your wife (or hubby) or 'servant' to be willingly paddled?"

Will the rule in Brown be ameliorated then by a smidgen of pious perjury on the part of jurors? And, notwithstanding the Strasbourg Court's decision in Laskey, might arguments still be made that prosecuting private, consensual acts of sadism violates article 8? 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. Brown and its successor Emmett were both, after all, decided before the Human Rights Act 1998 came into force. Is it time for the DPP to publish some guidelines as to when S&M prosecutions should proceed?

As for Fifty Shades of Grey's power to inspire mischief, the unusual case of Mr Lock is not the first time an assault case has arisen over E.L. James's novel. In 2012, Mr Raymond Hodgson assaulted his lover Ms Emma McCormick by plastering her with HP brown sauce for reading Fifty Shades, a work he considered to be immoral. Mr Hodgson told The Sun in July last year: "I did what I did to show her what saucy really means."

From Brown to brown sauce, perhaps EL James's writings should come with the warning 'don't try this at home'.