policy matters and inconsistencies

• in r v brown, the house of lords held that consent was not a defence for sadomasochism done in private by homosexuals, even though the participants were adults and the injuries caused didn't require medical treatment.
• What did the house of lords say in terms of sado masochism and public policy in r v brown?

  The question whether the defence of consent should be extended to the consequences of sadomasochistic encounters can only be decided by consideration of policy and public interest [...] society is entitled and bound to protect itself against a cult of violence.
• In deciding what is in public interest, the courts have made some decisions that are difficult to reconcile- in r v wilson, it was decided that where a defendant branded his initials on his wife's buttocks with a hot knife at her request, this is not unlawful-- even if she had to seek medical attention. Here, it was held that it was not in the public interest that consensual behavior of this kind should be criminalized, as this was an issue of personal adornment like a tattoo.
• Section 74 of the sexual offences act 2003 makes it clear that a person consents to any sexual penetration only if there is agreement by choice to that penetration and that the person has the freedom and capacity to make that choice:

  • Consent to sexual activity may be given to one sort of sexual activity, but not another, and may be subject to conditions such as wearing a condom.
  • Consent may be withdrawn at any time during sexual activity and each time activity occurs.
• To establish if there was consent, both the prosecution and defence look at the evidence of consent or the lack of it. This involves whether the victim was targeted by their vulnerability in the context of the offence. This puts a great burden on juries and is liable to end up with inconsistent decisions. it may also go some way to explain the reduction in successful prosecutions for sexual assaults.