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P. MARKWICK HARMING CONSENT ABSTRACT. I argue that Nafsika Athanassoulis fails to establish the main contention of her paper (“The Role of Consent in Sado-Masochistic Practices”, Res Publica 8, 2 (2002)), namely that, given liberalism, consent should be a defence to a charge of assault occasioning actual bodily harm even when the harm is a consequence of a sado-masochistic encounter. KEY S: consent, liberalism, sado-masochism In 1990 five men, including Anthony Joseph Brown, were convicted of assault occasioning actual bodily harm. The case is notable because the harms resulted from consensual sado-masochism. The five appealed in 1992, contending that a person cannot be guilty of assault in respect of acts that are consensual and outwith the public domain. The claim was that consent should be a defence to charges brought under the Offences Against the Person Act, since a person has a right to deal with his or her body (to allow it suffer genital torture, for example) as he or she decides. The Court of Appeal dismissed the appeals. In 1993, the House of Lords affirmed the Court of Appeal’s decision. Consent is a defence to the summary offence of common assault. But consent can fail as a defence to a charge of assault occasioning actual bodily harm. This is because the courts hold that consent is a defence only when the harm in question results from lawful activity. For example, note that the courts hold that consent is not a defence when bodily harm results from prize-fighting. Since prize-fighting is unlawful,1 it does not follow from the fact that prize-fighting is consensual that prize-fighters are improperly convicted under the Act. In 1993, the House of Lords accepted that consent is a defence to harm occasioned by certain lawful activities. For example, it accepted that consent is a defence in respect of harms occasioned by surgery. But the House of Lords held (a) that the Court of Appeal’s decision should be affirmed if the defence of consent should not be extended to harms occa- sioned by sado-masochism and (b) that the defence should not be extended to such harms, since public policy requires that “society be protected by criminal sanctions against a cult of violence which contain[s] the danger 1 R v Coney (1882) 8 QBD 534. Res Publica 8: 157–162, 2002. © 2002 Kluwer Law International. Printed in the Netherlands. 158 P. MARKWICK of the proselytisation and corruption of young men and the potential for the infliction of serious injury”.2 In “The Role of Consent in Sado-Masochistic Practices”, in this issue of Res Publica, Nafsika Athanassoulis demurs. Her main contention is that, given liberalism, consent should be a defence to harms that are a consequence of sado-masochism: given liberalism, Brown et al. should have been acquitted. I have mentioned that the courts hold that consent is a defence in respect of harms resulting from surgery; other examples include harms resulting from parental chastisement and harms resulting from boxing. Athanassoulis’s argument for her main contention is as follows: given liberalism, the defence of consent pertains equally – for the same reasons, with equal weight – to harms resulting from sado-masochism. I shall argue that Athanassoulis fails to establish her main contention. For the sake of argument, I shall not dispute the truth of liberalism or Athanassoulis’s characterisation of it (142–4, 147). I shall argue that, for all her paper tells us, liberalism’s main thesis could be true even if Brown et al. should not have been acquitted. Athanassoulis presents three variants of her argument. I shall describe them in turn. According to the first, a defence of consent should apply to consensual sado-masochism, since the defence applies to surgery and boxing in virtue of the fact that surgery and boxing are consensual (147– 9). Athanassoulis observes that in the case of boxing and other sports, “it is the consent of all participants to the risk of harm that legitimizes it” (148). Then she argues that “[b]y extension what should concern us in deciding . . . [whether the defence of consent should apply in a particular case] is the presence [or absence] . . . of consent” (148). Athanassoulis concludes: “what is important in legitimizing both dangerous sports and sado-masochism is the presence of consent” (148). Athanassoulis’s argu- ment is unconvincing, however, because its main premise is mistaken. The reason that consent is a defence to harms occasioned by surgery (boxing) is not that surgery (boxing) is consensual. If this were the reason, consent would be a defence to harms occasioned by consensual prize-fighting: but it is not. All sides accept that Brown et al. were engaged in consen- sual sado-masochism, but the issue is whether or not a particular kind of consensual act should be treated as analogous to surgery (boxing). And that is another matter. Consent is allowed as a defence to harms occasioned by surgery and boxing because it is believed that in these cases the defence furthers the aims of public policy. For example, the courts hold – rightly or wrongly 2 R v Brown (1993) All ER 75. HARMING CONSENT 159 – that allowing the defence for boxing will inculcate bravery, skill and physical fitness.3 The claim is that the defence should not be allowed in the case of prize-fighting since to do so would count against the public interest. Here is Stephen J in R v Coney (1882) 8 QBD at 549: the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults. . . . The point is that, as I have outlined, the House of Lords has made a similar judgement in regard to harms resulting from consensual sado- masochism. Note that the correctness of this judgement is beside the point. The issue of present relevance is that the argument that affirmed the Court of Appeal’s decision does not rely on the premise that sado-masochism is non-consensual and hence unlike the activities (surgery and boxing, for example) for which consent is a defence. A possible response is as follows. Liberalism is incompatible with the sort of appeal to public policy which underlies the argument that was used to affirm the Court of Appeal’s decision. Since Athanassoulis assumes the truth of liberalism, she could reject the argument’s implication that sado- masochism may be relevantly dissimilar to the activities for which consent is a defence. The problem with this response is that liberalism is not incompat- ible with an appeal to public policy. It is true that Lords Templeman, Jauncey and Lowry did not offer an argument that relies directly on liberal premises: for example, they did not offer an argument that relies on premises stating the harm or liberty principles. But liberalism does not imply that the public interest is irrelevant to a decision about whether an activity ought to be legally proscribed. Consider the following application of the harm principle: an activity ought to be proscribed only if proscribing it will prevent probable harm to (non-consenting) others. It is plain that the argument which was presented in the House of Lords refers to the preven- tion of probable harm to (non-consenting) others, even if the argument refers to much else (see below). It is entirely consistent with liberalism that Templeman et al. use considerations of public interest – considerations of probable harm to (non-consenting) others, for example – to discriminate between activities that are sado-masochistic and those that are not. Now for the second variant of Athanassoulis’s argument. Assault occa- sioning actual bodily injury can be justified even if the injured person has not consented to the assault. Think of an injury that results from emer- 3 See R v Brown (1993) All ER 79. 160 P. MARKWICK gency surgery: the injury is justified insofar as it benefits the person who is injured. It follows that injuries resulting from sado-masochism can be justi- fied as well. The masochist consents to the injuries caused by the sadist, but in any case “the sadist is acting in the masochist’s expressed best interests in terms of sexual gratification” (150). Since the “law allows individuals to inflict harm on themselves . . . in the interests of vanity or one’s career in the case of cosmetic surgery”, it should allow them to consent to harm “for the purposes of sexual gratification” (150). Lord Templeman assumes that the question of whether the defence of consent should extend to injuries occasioned by sado-masochism “can only be decided by considerations of policy and public interest”.4 If “consider- ations of policy and public interest” include considerations of increased sexual pleasure, this assumption is not overly objectionable. However, it appears that at least Lord Lowry has something less inclusive in mind, for he says that “sado-masochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or to the welfare of society”5 and that there is no “good reason to add sado-masochistic acts to the list of”6 acts for which consent is a defence. Presumably, Lowry means that the fact that some individuals receive sexual pleasure from sado-masochism is irrelevant to the question of whether it should be proscribed.7 Now, Lowry’s claim is difficult to accept, but this fact does not help Athanassoulis’s argument. Her argument is an argument to the conclusion that, given liberalism, consent should be a defence in respect of sado-masochistic harms; the difficulty is that liberalism does not imply that sexual pleasure is valuable (or, more generally, that an activity should not be proscribed if and because that activity benefits its participants). Athanassoulis would be correct to point out that factors not typically considered to be ones of “policy and public interest” could be relevant to the question of whether the defence of consent should extend to harms occasioned by sado-masochism. However, she does not indicate why this (not unobvious) fact expresses “a liberal understanding of the importance of consent, derived from the importance of respecting autonomy and the right to self-determination” (153). Admittedly it is not difficult to see how Athanassoulis could argue that it follows from the non-instrumental value of autonomy that there is reason not to proscribe consensual sado-masochism; some liberals have already 4 R v Brown (1993) All ER ¶ 2. 5 R v Brown (1993) All ER 100. 6 R v Brown (1993) All ER 75. 7 Compare Lord Lane’s claim, expressed in the Court of Appeal, that “the satisfying of sado-masochistic libido does not come within the category of good reason” – R v Brown (1992) 2 All ER CA, 559. HARMING CONSENT 161 argued exactly this. Indeed, some liberals have argued that the reason is in fact decisive, on the grounds that the likelihood of causing harm to non- consenting others is remote. But note that it does not appear to follow even from this that the Crown must establish the relative weighting of the reasons: unlike Athanassoulis, therefore, I am not at all surprised that Lord Templeman did not present detailed evidence that society needs to be protected from a “cult of violence” (154). Since Athanassoulis aims to shown that, given liberalism, the House of Lords should not have affirmed the Court of Appeal’s decision, it is remarkable that her paper does not mention the fact that liberalism is incompatible with part of the argument that was actually presented in the House of Lords. According to liberalism, an activity ought to be proscribed only if and because proscribing it will prevent probable harm to (non-consenting) others. But the argument offered by Lords Templeman, Jauncey and Lowry assumes that sado-masochism should be unlawful for the reason that – though not only for the reason that (see above) – its unlawfulness will reduce probable harm to consenting sado-masochists. In particular, it is noteworthy that Lord Jauncey observes that, since Brown et al. are not “the only practitioners of . . . sado-masochism in England and Wales”, it is relevant that there may be “others who are not so controlled or responsible as the appellants are claimed to be”.8 The final variant of Athanassoulis’s argument is as follows: (a) rightly, consent is a defence in respect of harm occasioned by violent sports such as boxing; (b) the intention or rationale of violent sports such as boxing is no more problematic than that of sado-masochism (147–150). Although (a) is far from indisputable, I shall restrict my attention to (b). In support of (b), Athanassoulis argues that sado-masochism has been incorrectly classified as a violent offence since sado-masochism is only contingently (“incidentally”) violent: sado-masochism should be understood as a sexual act which happens to be expressed through violence. Sexual acts can take many different forms and be expressed through different means, so why can we not make sense of the idea of sexual gratification through pain. . . . what should define sado-masochism is the presence of consent” (154). The first point to make is that a person can act contrary to s 47 of the Offences Against the Person Act without acting malevolently. More perti- nently here, however: S’s sadistic act could constitute assault even S’s intentions could not be described as violent. The second point to make is that these remarks are anyway not very persuasive. While David Archard might be correct to follow Lois Bibbings and Peter Alldridge in thinking that “sado-masochists practice 8 R v Brown (1993) All ER 91. 162 P. MARKWICK sado-masochism not for the purpose simply of occasioning or receiving harm but for the pleasure which is derived from inflicting and/or enduring pain.”9 Nonetheless, sadistic acts seem to be non-contingently violent: it is difficult to believe that sado-masochism could “be expressed” through non-violent “means” or that sado-masochism is not concerned with both sex and violence. Although the appellants themselves claimed that sado- masochism is concerned with nothing but sex – compare Athanassoulis’s remark that sado-masochism only “happens to be expressed through violence” (152) – I fail to see what argument has actually been offered for this view. For the sake of argument, however, let us grant the truth of (b), that the rationale of sado-masochism is no less objectionable than the rationale of some sports. Even so, however, this does not help Athanassoulis’s argu- ment: for she cannot use (b) to establish that, given liberalism, consent should be a defence in respect of harms occasioned by sado-masochistic activity. The reason is that liberalism is incompatible with the claim that the legal status of an activity should be a function of its rationale. According to Lord Jauncey, the appellants are obliged to propose . . . that the deliberate and painful infliction of physical injury should be exempted from the operation of statutory provisions the object of which is to prevent or punish that very thing, the reason for the proposed exemption being that . . . [sado-masochists] wish to satisfy a perverted and degraded sexual desire.10 This statement is, of course, far from an expression of liberalism, and Athanassoulis will want to object that the law ought to be such “that self-regarding actions and by extention actions regarding others where those involved have given their . . . consent should not be regulated by society” (143). The problem is that Athanassoulis cannot invoke (b) without expressing an equally non-liberal view herself, namely that the law should uses its coercive power for a reason other than the prevention of harm to others.11 Crown Prosecution Service London 142 Holborn London EC1N 2NQ UK 9 David Archard, Sexual Consent (Oxford: Westview, 1997) 113; Lois Bibbing and Peter Alldridge, “Sexual Expression, Body Alteration, and the Defence of Consent”, Journal of Law and Philosophy 20 (1993), 360. 10 R v Brown (1993) All ER 75. 11 The views expressed in this paper are those of the author and not necessarily of CPS London.