R v Brown, [1993] UKHL 19, [1994] 1 AC 212, is the House of Lords judgment that set the English criminal-law rule for consensual sadomasochism. Where the acts amount to actual bodily harm, or to unlawful and malicious wounding, the injured person’s consent is not a defence. Five men were convicted for wounding one another under sections 20 and 47 of the Offences Against the Person Act 1861. They were adults over the age of consent. For about ten years they had done it in private. Nobody complained. Nobody needed a doctor. The Lords still held, by three votes to two, that in this kind of violence consent does not make the injury lawful.
The file starts in October 1987. Greater Manchester Police obtained a videotape later coded KL7. It showed consensual sadomasochism between men. Other tapes turned up during the inquiry: whipping, spanking, wax. Operation Spanner spread across sixteen forces, seized more than 400 cassettes, and cost about £2.5 million. Officers said, without evidence, that someone might have been killed during filming. Gay magazines reported that police had talked about snuff films. Greater Manchester Police denied a snuff link, then wrongly tied the inquiry to a 1985 murder in Leeds. Investigators found no evidence of non-consensual acts and no lasting injuries. In September 1989 sixteen men were charged with more than 100 offences. Some were accused of aiding and abetting assaults against themselves, a charge prosecutors called rare outside insurance-fraud cases.
The climate around the bedrooms was already hostile. A 1987 social survey found that three-quarters of respondents thought same-sex activity was wrong. The government’s Don’t Die of Ignorance campaign tied gay men to the AIDS epidemic. That same year Margaret Thatcher’s government campaigned against the “promotion” of homosexuality in schools, and in 1988 section 28 of the Local Government Act barred local authorities from intentionally promoting homosexuality. The Obscene Publications Squad, which took the later stages of the case, was nicknamed the Dirty Squad. In October 1989 the case was sent to the Old Bailey. The trial opened on 29 October 1990 before Judge James Rant. Citing R v Coney (1882) and R v Donovan (1934), he ruled that people must sometimes be protected from themselves, so consent was not a defence. The defendants then pleaded guilty. They were convicted on 7 November 1990. On 19 December eight men were sentenced to between one year and four and a half years. Michael Hames of the Obscene Publications Squad wrote in the Daily Mail that they were the most horrific porn ring ever before a British court. Prosecutor Michael Worsley QC called it brute homosexual activity in sinister circumstances. The Daily Telegraph wrote of a torture vice gang. Defence counsel kept repeating what the headlines dropped: everyone consented, everyone was over the age of consent, and nobody needed treatment.
In 1992 five of the men appealed. Lord Lane, Lord Chief Justice, upheld the convictions, cut the longest sentence to six months, and certified a further appeal to the House of Lords. The question for the Lords was this: in a sadomasochistic encounter, if A causes B actual bodily harm, must the prosecution prove that B did not consent? The majority said no.
Lord Templeman wrote that society is entitled to protect itself against a cult of violence, and treated pleasure taken from pain as uncivilised. He called the acts unpredictably dangerous and treated the consents as dubious. Lord Jauncey went back to older definitions and split mere assault from the statutory offences. Consent can answer a charge of mere assault. It is not a defence to section 47 or section 20 unless the facts fall inside a known exception: organised sport, parental chastisement, or reasonable surgery. Tattooing and ear-piercing were not on the list he drew. He also worried about proselytising and corrupting young men, and asked why anyone would need a video if the only purpose was sexual gratification. Lord Lowry added that sadomasochism by its nature involves physical cruelty, that relaxing the statutes would put a judicial stamp on it, and that Article 8 of the European Convention was not yet part of English law, so enforcing the 1861 Act did not breach a privacy right.
Lord Mustill and Lord Slynn dissented. They wanted consensual private sex kept outside the criminal law. Lord Slynn said the common law has long treated consent as a defence to battery, with maim and death on the other side of the line. He did not accept that private sexual acts between adults should be made into this crime. In his view the prosecution had to prove the person did not consent, and he would have allowed the appeals and quashed the convictions. The majority won. The rule that came out is that consent cannot legalise actual bodily harm.
Three of the men took the convictions to the European Court of Human Rights as Laskey, Jaggard and Brown v. United Kingdom. In February 1997 the Court found no violation of Article 8. How much harm the law allows between people, even consenting adults, is for the state to decide, balancing public health against control over citizens. The Court also questioned whether the tapes were private life at all: many men appeared in them, and the applicants had made the recordings and passed them around. Strasbourg accepted that a democracy may criminalise this sort of injury to protect health. It did not undo the rule in Brown.
Later English cases kept using that rule. In R v Wilson (1996) a husband branded his initials on his wife’s buttocks at her request, and the Court of Appeal treated the case differently. R v Emmett held that the same rules apply to heterosexual participants as well as to gay men. Actual bodily harm is not a high bar. Bruises, welts, and cuts left by a beating can meet it. On 16 February 1991 about 5,000 people marched in London against the Spanner convictions. In 1994 the Law Commission’s paper Consent in the Criminal Law proposed that sexual activity between consenting adults should be legal unless it caused serious injury. The proposal was not adopted. Campaigners later set up the Spanner Trust.
