Exercise 1D. Law and Morality

Some people claim that as well as helping to co-ordinate our activities in society, endowing us with rights against other people, and helping to ensure that people do not abuse the powers they have, the law has a legitimate role to play in compelling people to live up to certain moral standards in their behaviour.

The issue of whether the law can legitimately be used to compel people to act morally is a very controversial one. Liberals tend to argue that the mere fact that doing x is morally wrong does not give us sufficient reason to stop someone doing x. Before we can harm someone by coercing him into not doing x it has to be shown that doing x will harm someone else, or creates the danger that someone else will be harmed. This was the position most famously taken by the liberal John Stuart Mill, and has been known ever since as ‘Mill’s harm principle’. For more on Mill’s harm principle, go here.

Other thinkers – particularly those within the natural law tradition of thinking about law – argue that law has a legitimate role to play in helping people to live flourishing lives, and discharging that function involves discouraging people from acting immorally. After all, if genuinely think that it is immoral to do x, then we must think that we have reason not to do x. And if doing x will not affect anyone else, then the reason we have not to do x must be based on the fact that our life will go worse if we do x. But if that is true, then any legal system that cares about how our lives go will have reason to attempt to discourage us from doing x. (Though the harm it might do to our lives through attempting to stop us from doing x may give the law a countervailing reason not to discourage us from doing x, important though it may be for our own sake that we not do x.) To explore this kind of position further, go here.

The best known English case dealing with the issue of how far the law can go in discouraging people from acting immorally is R v Brown (1992). In that case, a number of defendants were arrested for committing offences under s 47 and s 20 of the Offences Against the Person Act 1861. Under s 47, it is an offence to assault someone else with the result that they suffer actual bodily harm. Under s 20, it is an offence maliciously to wound someone else. (‘Maliciously’ in this context simply means to act in the knowledge that there is a significant risk that someone else will suffer some kind of physical harm as a result of your actions.) The defendants had engaged in a number of sado-masochist group sessions in which they had whipped and pierced other people who had consented to be used for this purpose. There was no doubt that the defendants’ actions had resulted in other people suffering actual bodily harm and wounding. The issue in Brown was whether the defendants could raise a defence that their victims had consented to be harmed in the way they had been. The issue went all the way up to the House of Lords (at that time, the court of last resort for hearing cases in the UK). The House of Lords, by a majority of three Law Lords to two, ruled that the fact that the victims in Brown had consented to be harmed was irrelevant.

The majority took the view that in cases where a defendant has caused a victim to suffer actual bodily harm or worse, the consent of the victim will not make any difference to the defendant’s criminal guilt unless there was a good reason why it should. The majority thought that the victim’s consent did not provide any good reason for finding that the defendants in this case had not committed a criminal offence.

The minority took the opposite position, arguing that in cases where a defendant has caused a victim to suffer bodily harm that was not serious, and had done so with the victim’s consent, the defendant should not be found guilty of committing a criminal offence unless there was a good reason why he should be. The minority was unable to find any good reason why the defendants should be found to have committed a criminal offence in this case.

Lord Templeman was in the majority. Here are some excerpts from his judgment:

My Lords, 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.

The question whether the defence of consent should be extended to the consequences of sado-masochistic encounters can only be decided by consideration of policy and public interest.

Counsel for the defendants argued that consent should provide a defence to charges under both section 20 and section 47 because, it was said, every person has a right to deal with his body as he pleases. I do not consider that this slogan provides a sufficient guide to the policy decision which must now be made. It is an offence for a person to abuse his own body and mind by taking drugs. Although the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally. In any event the defendants in this case did not mutilate their own bodies. They inflicted bodily harm on willing victims. Suicide is no longer an offence but a person who assists another to commit suicide is guilty of murder or manslaughter.

The assertion was made on behalf of the defendants that the sexual appetites of sadists and masochists can only be satisfied by the infliction of bodily harm and that the law should not punish the consensual achievement of sexual satisfaction. There was no evidence to support the assertion that sado- masochist activities are essential to the happiness of the appellants or any other participants but the argument would be acceptable if sado-masochism were only concerned with sex, as the appellants contend. In my opinion sado-masochism is not only concerned with sex. Sado-masochism is also concerned with violence. The evidence discloses that the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless.

A sadist draws pleasure from inflicting or watching cruelty. A masochist derives pleasure from his own pain or humiliation. The appellants are middle-aged men. The victims were youths some of whom were introduced to sado-masochism before they attained the age of 21.

The evidence disclosed that drink and drugs were employed to obtain consent and increase enthusiasm. The victim was usually manacled so that the sadist could enjoy the thrill of power and the victim could enjoy the thrill of helplessness. The victim had no control over the harm which the sadist, also stimulated by drink and drugs might inflict. In one case a victim was branded twice on the thigh and there was some doubt as to whether he consented to or protested against the second branding. The dangers involved in administering violence must have been appreciated by the appellants because, so it was said by their counsel, each victim was given a code word which he could pronounce when excessive harm or pain was caused. The efficiency of this precaution, when taken, depends on the circumstances and on the personalities involved. No one can feel the pain of another. The charges against the appellants were based on genital torture and violence to the buttocks, anus, penis, testicles and nipples. The victims were degraded and humiliated sometimes beaten, sometimes wounded with instruments and sometimes branded. Bloodletting and the smearing of human blood produced excitement. There were obvious dangers of serious personal injury and blood infection.

In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. 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.

Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised.

Lord Mustill was in the minority. Here are some excerpts from his judgment:

The decks are clear for the House to tackle completely anew the question whether the public interest requires section 47 of the 1861 Act to be interpreted as penalising an infliction of harm which is at the level of actual bodily harm, but not grievous bodily harm; which is inflicted in private (by which I mean that it is exposed to the view only of those who have chosen to view it); which takes place not only with the consent of the recipient but with his willing and glad co-operation; which is inflicted for the gratification of sexual desire, and not in a spirit of animosity or rage; and which is not engaged in for profit.

My Lords, I have stated the issue in these terms to stress two considerations of cardinal importance. Lawyers will need no reminding of the first, but since this prosecution has been widely noticed it must be emphasised that the issue before the House is not whether the defendants’ conduct is morally right, but whether it is properly charged under the Act of 1861. When proposing that the conduct is not rightly so charged I do not invite your Lordships’ House to endorse it as morally acceptable. Nor do I pronounce in favour of a libertarian doctrine specifically related to sexual matters. Nor in the least do I suggest that ethical pronouncements are meaningless, that there is no difference between right and wrong, that sadism is praiseworthy, or that new opinions on sexual morality are necessarily superior to the old, or anything else of the same kind. What I do say is that these are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law; and that if these standards are to be upheld the individual must enforce them upon himself according to his own moral standards, or have them enforced against him by moral pressures exerted by whatever religious or other community to whose ethical ideals he responds. The point from which I invite your Lordships to depart is simply this, that the state should 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. Thus, whilst acknowledging that very many people, if asked whether the defendants’ conduct was wrong, would reply “Yes, repulsively wrong”, I would at the same time assert that this does not in itself mean that the prosecution of the defendants under sections 20 and 47 of the Offences against the Person Act 1861 is well founded.

This point leads directly to the second. As I have ventured to formulate the crucial question, it asks whether there is good reason to impress upon section 47 an interpretation which penalises the relevant level of harm irrespective of consent: i.e. to recognise sado-masochistic activities as falling into a special category of acts, such as duelling and prize-fighting, which “the law says shall not be done.” I ask myself, not whether activities such as those of the defendants should cease to be criminal, but rather whether the Act of 1861 (a statute which I venture to repeat once again was clearly intended to penalise conduct of a quite different nature) should in this new situation be interpreted so as to make it criminal. Why should this step be taken? Leaving aside repugnance and moral objection, both of which are entirely natural but neither of which are in my opinion grounds upon which the court could properly create a new crime, I can visualise only the following reasons:

1. Some of the practices obviously created a risk of genito-urinary infection, and others of septicaemia. These might indeed have been grave in former times, but the risk of serious harm must surely have been greatly reduced by modern medical science.

2. The possibility that matters might get out of hand, with grave results. It has been acknowledged throughout the present proceedings that the defendants’ activities were performed as a pre-arranged ritual, which at the same time enhanced their excitement and minimised the risk that the infliction of injury would go too far. Of course things might go wrong and really serious injury or death might ensue. If this happened, those responsible would be punished according to the ordinary law, in the same way as those who kill or injure in the course of more ordinary sexual activities are regularly punished. But to penalise the defendants’ conduct even if the extreme consequences do not ensue, just because they might have done so would require an assessment of the degree of risk, and the balancing of this risk against the interests of individual freedom. Such a balancing is in my opinion for Parliament, nor the courts; and even if your Lordships’ House were to embark upon it the attempt must in my opinion fail at the outset for there is no evidence at all of the seriousness of the hazards to which sado-masochistic conduct of this kind gives rise.

3. I would give the same answer to the suggestion that these activities involved a risk of accelerating the spread of auto-immune deficiency syndrome, and that they should be brought within the Act of 1861 in the interests of public health. The consequence would be strange, since what is currently the principal cause for the transmission of this scourge, namely consenting buggery between males, is now legal. Nevertheless, I would have been compelled to give this proposition the most anxious consideration if there had been any evidence to support it. But there is none.

4. There remains an argument to which I have given much greater weight. As the evidence in the present case has shown, there is a risk that strangers (and especially young strangers) may be drawn into these activities at an early age and will then become established in them for life. This is indeed a disturbing prospect, but I have come to the conclusion that it is not a sufficient ground for declaring these activities to be criminal under the Act of 1861. The element of the corruption of youth is already catered for by the existing legislation; and if there is a gap in it which needs to be filled the remedy surely lies in the hands of Parliament, not in the application of a statute which is aimed at other forms of wrong-doing. As regards proselytisation for adult sado-masochism the argument appears to me circular. For if the activity is not itself so much against the public interest that it ought to be declared criminal under the Act of 1861 then the risk that others will be induced to join in cannot be a ground for making it criminal.

Leaving aside the logic of this answer, which seems to me impregnable, plain humanity demands that a court addressing the criminality of conduct such as that of the present should recognise and respond to the profound dismay which all members of the community share about the apparent increase of cruel and senseless crimes against the defenceless. Whilst doing so I must repeat for the last time that in the answer which I propose I do not advocate the de-criminalisation of conduct which has hitherto been a crime; nor do I rebut a submission that a new crime should be created, penalising this conduct. The only question is whether these consensual private acts are offences against the existing law of violence. To this question I return a negative response.

Summarise these judgments in not more than 500 words each. Whose view do you prefer?