Just Cases | Season 2 | Episode 2 | Is S+M sex illegal?

If you engage in consensual sadomasochistic sex could you actually be found guilty of assault? The case of R v Brown is one of the most hotly debated decisions in legal history.

WARNING: This episode contains descriptions of acts of a sexual nature, a violent nature, and a mention of suicide. Listener discretion is advised.

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Just Cases | Season 2 | Episode 2 | Is S+M sex illegal?

Melissa Castan: [00:00:00] The Glasgow Herald, 10th of October, 19 89,

James Patterson: 15 charged after operation spanner. 15 men, including a United Nations lawyer and a lay preacher, appeared before magistrates yesterday on charges arising from a two year investigation by Scotland Yard's obscene publication squad. They were arrested last month after an investigation called Operation Spanner.

The men face a total of more than 100 charges, including assault on co-defendants, drug charges, and obscene publication offenses. Eight of the accused face charges of running or aiding and abetting the running of disorderly houses at which numerous persons resorted to acts of sadistic and of masochistic violence.

And in accompanying acts of all lewd, immoral, and an unnatural kind.

I'm Melissa Castan. I'm James Patterson.

Melissa Castan: And on just cases today, one of the most hotly debated decisions in legal [00:01:00] history. A warning, today's episode discusses acts of a sexual nature. A violent nature and a mention of suicide. So please use listener discretion.

Jamie Walvisch is a criminal lawyer and forensic expert at Monash Law School, and Caroline Henkel is a public law and international law expert also at Monash Law School.

James Patterson: I just need to say I'm really nervous about this discussion. I'm super nervous. Jamie, do you remember when you first learned about

Jamie Walvisch: this case?

I do remember when I first learned about it, it was I was doing a moot in law school and I was required to try and put up a defense for somebody who had accidentally killed somebody in the context of a sadomasochistic encounter. And so I needed to research the law to find out how does it deal with this kind of thing.

Can you consent to being whipped, chained, [00:02:00] burned? If it ultimately resulted in death. And then I found the case of Brown which didn't result in death, but raised all of the issues that I needed to learn about.

James Patterson: So you stumbled across it in a way. Absolutely.

Jamie Walvisch: Caroline.

Caroline Henkel: My introduction to this case was on the first day of criminal law when I was the second year law student in New Zealand.

And I'll never forget I was sitting in the front row. The lecturer walked into the room and said, nailing scrotums to a board. Burning the penis with a candle. Oh my God, can consent be a defense to these forms of assault? And I was spell bound. I thought it was a really interesting case, and that really did pique my interest in criminal law.

James Patterson: Melissa,

Melissa Castan: I have no conscious memory of learning

this case at all. So either I completely blanked it out, or it might have happened after I actually finished. Completed my studies at law I'm much older than the rest of the team here.

James Patterson: So this might be a first for you then? I'm

Melissa Castan: prepared to be initiated.

James Patterson: Yeah. I think it's one of those. Where were you moments? You've got the Kennedy assassination, [00:03:00] and then you have R and Brown for law students, basically.

Melissa Castan: So Jamie, what were the police investigating for this case?

Jamie Walvisch: So the police were investigating what they believed was child pornography. And so they had raided the house of somebody they believed was in possession of child pornography.

And the person who was living there. Said to them, Hey, why don't you leave me alone and I've got something far better for you. And gave them a video, which he showed the police in his house at the time. And it involved a man slicing another man's penis with a scalpel as well as a number of other acts.

And so he then gave the police another video as well, with similar acts and the names and addresses of a number of the people involved. And that's what began Operation Spanner. So the. People involved. There

James Patterson: a number of people who were depicted on the tape. I believe

Jamie Walvisch: yes, there were many. So the police then, so this was all in 1987 in Manchester and the police then interviewed two to [00:04:00] 300 people who they believed were involved or they had some evidence in relation to and then over, because these were activities that had been happening over about 10 years, right across England and Wales.

And they had hundreds of videos of different acts that, that these men had put together. Ultimately they considered charging about 80 of them, but they ultimately decided to only charge six 16 of them and caution another 60 or so. If we can put some sort of human, a human side to the people who are involved who were the same people.

Sure. So of the 16 of them, the average age was 50. So they weren't, there were a few young people. There was one in particular who was 16 or 17 at the time, but the rest of them were largely middle-aged men with a range of background. So there was a missile designer. A lawyer, a civil servant, a preacher, a fire officer, a pig breeder, a [00:05:00] forester.

There were a range, came from a range of different areas and occupations.

Melissa Castan: And so what did those defendants argue when they had to answer these charges in the court?

Jamie Walvisch: So they argued that this was entirely consensual. And so what they did in the privacy of their own home was for them to decide that nobody was seriously injured.

Nobody ever required any medical attention. And so this wasn't really an assault. There was no victim here. This was men. Engaging in acts that to the outside world might look cruel or dangerous, but were really about sexual gratification. We can get to some of the acts

James Patterson: in a moment, but it says a lot that in one of the judgements, the judges actually, they're go into great detail about some of these acts and then say it's sufficient to say that whatever the outside might feel about the subject matter of the prosecutions perhaps.

Horror amazement or incomprehension. Very few could read the activities without disgust. This is a direct quote, and the house has been spared the videotapes, which must have been [00:06:00] horrible, which means that the judges themselves couldn't actually begin to view what was on the tapes.

Jamie Walvisch: That's interesting because at first instance when it started, judge Rant was the judge in the first case, and he wanted to view all of the videos before starting the trial, and he started watching them. And then when it got up to the video of the slicing of the penis, which was seen to be the worst of them all, he actually had to turn it off and leave the room feeling physically ill.

And then he came back in and apologized to everybody and said, I'm only human. This isn't gonna influence my decision. So no

James Patterson: medical attention. The act that you described slicing a penis no medical

Jamie Walvisch: attention for something like that. I don't know. I haven't read anything about it, but I assume they bandaged it up because it was very, it's been made very clear that no one ever had to go to hospital for any of the acts that were reported.

So I guess they attended to it themselves. Maybe there were nurses as part of the group[00:07:00]

Melissa Castan: you are listening to just cases. On today's episode, we're exploring one of the most notorious and controversial assault cases in legal history. R and Brown. It raises issues of who can consent to acts of violence and harm. There's more on this topic in our earlier episode five, assault on the sports field.

There we look at an infamous on field punch at the football and where the sports players can consent to harm when they run onto the field.

So just explain to me, go back a step. What, what has to happen for an assault charge to be proved?

Jamie Walvisch: So what they were charged with here was English law is a little bit different from Australian law. So the two main charges here were assault, causing bodily injury, which involves somebody physically.

Causing somebody to suffer some level of bodily injury. Now, interestingly, at the time bodily injury wasn't [00:08:00] defined after this case, it was defined in a way that involved the breaking of the skin in some way or something more serious than a kind of trifling or transient injury. Which a lot of the activities here wouldn't have actually.

Classified as, but at the time, they were considered to be bodily injury. The other thing they were charged with was unlawful wounding, which again is causing somebody to suffer some kind of a wound for a purpose that's not lawful. The interesting thing here is a lot of them were also charged with aiding and abetting assaults on themselves.

So for example the person who sliced it open was charged with assault causing bodily injury, but the person whose penis it was charged with aiding and abetting. And that seems really weird

Melissa Castan: because if you've consented to have an act done to you, can you be aiding and abetting the person who does it to you?

Jamie Walvisch: What the court decided here was that you cannot consent. To an assault that causes bodily injury that is committed [00:09:00] for the purposes of sexual gratification. Okay,

Melissa Castan: so what? What would happen if you were doing those injuries, but it wasn't for sexual gratification, if it was well circumcision, some kind of ritual.

Ah, exactly.

Jamie Walvisch: Male circumcision involves exactly the same conduct. Arguably it's about the slicing of a penis, but it's done for religious purposes. The law considers that to be a good reason for allowing that. And so you can consent to having your penis. Circumcised or your child's penis circumcised because it's got a different reasoning underlying it, but they held that there was no good reason for allowing that kind of activity For sexual purposes.

Caroline Henkel: It seems weird that they're singling out. Sexual reasons is a particular reason for one to be prohibited from engaging in conduct, whereas the other purposes, such as, religious or cultural rituals, sports are. Okay. So why do you, what do you think [00:10:00] motivates that different treatment?

Jamie Walvisch: I think there is, it's, it is partly about history and the way the law has developed. So there was a split between the majority and the minority. This case ultimately went to the House of Lords in England, and there was a split between. The majority and the minority where the majority held that the default position is that you cannot cause bodily injury to somebody even with consent, unless you fall within one of the well-recognized categories of exception.

So they are things like boxing surgery. Circumcision,

Melissa Castan: Tattooing,

Jamie Walvisch: piercing, bodily modifications, and so on. So all of those things have been recognized historically over time. Sadomasochism had never come before the courts and they didn't want to recognize it as one of those categories. So is it literally just like a

James Patterson: list of activities as opposed to something that sort of has [00:11:00] more of a principle underpinning it?

There's actually like a proper dot point list. If it's these activities you find

Melissa Castan: it's things we like versus things we don't like from the court.

Jamie Walvisch: Yeah. Yes, very much. And that was the difference between the majority and the minority. Because the minority said we should start with the default view that if you consent if's.

Okay. Unless there is a good reason for saying it's not. Okay. And so that's a more principled view where you are requiring the state to say okay. We take it as a good thing that people can consent to their, what happens with their own bodies, but there are limits to that. And so we say, for example, for public health reasons, we don't want to allow people to suffer serious injuries that ends up with them going to hospital because that places a burden on the medical system.

Whereas the majority's view does seem to be very arbitrary, and it's very difficult in any principled way to draw a distinction between something like boxing, which involves [00:12:00] intentionally punching somebody in the head repeatedly for sporting purposes from. Sexual gratification, there is a very difficult way to how do you differentiate those things on a principled basis?

Is this a

James Patterson: particular quirk of the law that because it's the state charges an individual with acts committed against, let's just call 'em the victim, in this case it's considered to be done against the state rather than done against the individual. Is that what's led to this kind of weird, absurd.

Moment of even the individuals themselves being charged with consenting to acts of violence done to themselves.

Jamie Walvisch: The thing about the criminal law is the victim historically has been removed from the equation. So if you look at the way that law cases in criminal law work, it's, this is called R against Brown.

So it's the state against the accused. There's no mention of who the victims were. Here we have the [00:13:00] victims are usually required to give evidence, which is why very frequently. Those things won't come to court. But here you had all the video evidence, so there was no need for people to be giving evidence about it.

But the idea of the criminal law is it's supposedly about deterring certain behaviors, about maintaining community standards and morality. And so the criminal law declares this conduct is wrong. And if you commit that conduct, then we will. Charge you for it. Maybe

James Patterson: that like morality point is an interesting moment to reflect on.

'cause I know that it went from the House of Lords as appealed higher and issues of morality were brought into that particular appeal. Where was that and what happened?

Jamie Walvisch: So it went to the European Court of Human Rights where it was argued to be a breach of article. Eight of the Human rights convention, which is about the protection of private [00:14:00] family lives.

Things done in private there are supposed to be exempt from arbitrary state interference.

Melissa Castan: So you mean the finding of guilt against the actors here was found was argued to be a breach of Article eight because it interfered with their. Privacy or their, with their right to sexual privacy, their right to their own identity or Exactly.

Practices.

Jamie Walvisch: Yes.

James Patterson: So it's nothing to

Jamie Walvisch: do with morality. It was pri it was a privacy, it was a privacy argument. There were it was about morality indirectly, because the way the convention works is that you are not allowed to arbitrarily interfere. But you are allowed to interfere with somebody's private lives if it's reasonably necessary in a democratic society to do and so the question was this reasonably necessary for them to do and the state argued that it was reasonably necessary on a range of grounds, the three main ones being that it was [00:15:00] necessary. In order to prevent people from getting hurt. So there was a public health ground, that it was necessary to deter this kind of conduct.

But also that there were moral standards, which the state has a right to try and impose on society. Now, the court ultimately. I didn't wanna comment on the moral grounds and felt that, found that they didn't need to because it was sufficient for them to find that yes, the states have the ability to try to prevent harm however it is caused.

And they held that it was within that the states could make their own decision about where to draw that line on health and deterrence grounds, and they didn't need to. Say anything about the morality grounds?

James Patterson: There's a particular, and I know this is going a little off topic, but I know Caroline, you're.

Obviously busting to talk about German cannibals. So there's a, I think

Caroline Henkel: you should edit that out. There's

James Patterson: a slightly different approach to this in Germany, in German law. [00:16:00] What is that?

Caroline Henkel: So this is a case that I think happened about 10 years ago. Two men met up after corresponding online, decided that one would commit cannibalism on the other

James Patterson: standard.

Caroline Henkel: And standard contract. Effectively what happened was the victim tried to commit suicide, but failed. So the the defendant ended up finishing him off and then did commit those acts of cannibalism and recorded it on video and somehow the police got wind of this.

But what was interesting about the German case compared to the Brown case, is that Germany's. Constitution has this provision that says every human has a right to dignity and that right is inviable. So this right to human dignity, which we don't have in England or Australia per se, has been used by the judges to effectively, give meaning and to prescribe certain activities or to say that certain activities.

I have an aggravating kind of feature because in Germany, cannibalism was not [00:17:00] unlawful, but some aggravating features of murder were murder to satisfy sex drive.

Melissa Castan: So you're saying the difference here is that those, some of those things fundamentally impair a person's dignity. That's right. Even if they want it, even if they're consenting to it.

Yep. You still can't violate a person's dignity to that extent. So you can't

James Patterson: violate your own dignity by wanting to be eaten by someone.

Caroline Henkel: Effectively, yes. But that's, there's another slightly odd case that comes from Germany where. The Germans prohibited people to play the game. Laser strike.

What kids play in a, you got, when I, when I was growing up, you could go to this place and you could pay and pretend to shoot people with guns. Yeah. So in Germany, that's the best

James Patterson: end of basketball season party ever.

Caroline Henkel: I'm too short to ever play basketball, but this is a game that, that young people would play.

Yes. Paintball might be another example. But in Germany this was banned. On the basis that human dignity is a constitutional principle and something that involved playing at killing an act of simulated homicide were contrary to Germany's fundamental values. And then one of the major laser strike operators lodged a legal [00:18:00] case with the European Court of Justice, as it then was, and said that this interfered with its effectively it.

It's right to trade in Germany, but the Court of Justice upheld that and said that all European states, protect this idea of dignity and human rights and Germany can, if it so chooses, implement this constitutional right to dignity in such a way as to prescribe certain activities.

James Patterson: So is that something that bring it back to R and Brown?

Yeah. Are they some particular attitudes? They're captured in law in Germany, but do you think that they, Jamie, were some attitudes that that the judges held and mightn't have expressed? In the judgments?

Jamie Walvisch: Oh, I have a couple of things to say about that. So first, when it went to the European Court of Human Rights they did explicitly say that a state has the.

Right to ban activities on the grounds that they might undermine the respect which human beings should confer upon one another. So at that level, it was a similar, it's not there explicitly in English law, but they said [00:19:00] that is part of what a state can do. But it also does seem to be a lot of what was motivating the House of Lords in particular was this view that these apps.

In their view are disgusting and degrading and cruel. And so they believed and they explicitly said so that no sensible intelligent person could do this. This undermines, the way we should be behaving towards each other, and so they should be banned. Unfortunately, the way they did that was in a way that.

Comes across as being very homophobic because that was bound up with a lot of comments they would make about normal heterosexual life and how that's something to which we should be aspiring. And that part of the problem here is that, there's the possibility of the corruption of young men into this, depraved [00:20:00] lifestyle.

But, fortunately in the case of the young victim, he's now been. Rescued and is now leading a normal heterosexual life. And so there was a lot of homophobia bound up, which led to a lot of criticism of this case, despite the fact that the courts at a lower level had explicitly said, this is not about homophobia.

If this was a heterosexual, sad masochistic activity, we would take the same approach. They unfortunately undermined that view in the next, very next case that followed Brown, which was a case called Wilson. Which was a case of a man who carved his initials into his wife's buttocks. And in that case, they held that was okay and that she could consent because it was a consensual act in the context of a normal heterosexual marriage.

Just date night. Yeah. Okay,

Melissa Castan: Mr. Gray, we'll see you now.

I'd like to know more about you.

Caroline Henkel: There's really not much to know about me. [00:21:00] Look at me.

Jamie Walvisch: I am. My tastes are very singular. You wouldn't understand.

Caroline Henkel: I just wonder whether, given that societal attitudes have changed to some degree in terms of. Hopefully less homophobia in society. And also, as a society, we are talking a lot about consent, much more these days. And I wonder whether Jamie, you think that the case would've been decided in the same way today, or whether there's been some kind of evolution in our thinking about these issues?

Jamie Walvisch: I think that there has been a general evolution amongst the population, and I think it's not just about consent and homosexuality, but about. Sadomasochism. If you look at the popularity of 50 Shades of Gray, for example, it was a huge cultural phenomenon, which I think brought sm into the public consciousness in a way that it hadn't been so much [00:22:00] before.

However, when you look at the kinds of acts here and you look at the kinds of people who sit on the House of Lords I'm still not convinced that if you had. Acts of this seeming severity dealt with by the judges on the house of laws, that they would take that much of a different view these days because that's one thing to be talking about.

It's always a beating. It's another thing to be talking about slicing open a penis with a scalpel.

Melissa Castan: You mentioned before that the law is different in Australia from the English case. And, but the English law had, has moved on. What is the law about these issues now?

Jamie Walvisch: We don't know what the law on this issue is in Australia.

The difference in Australia is we don't have the same offense of assault causing bodily harm or unlawful wounding. Every Australian jurisdiction is different. So in Victoria we have two relevant offenses that's intentionally causing injury and intentionally causing. Serious injury. [00:23:00] Now it's being suggested, but that's never come to court before that, perhaps in Victoria where this to come, the courts would say, you can consent to injury, but you can't consent to serious.

And what is the

Melissa Castan: difference between injury and serious injury? It's a matter of degree, a

Jamie Walvisch: matter of degree. So it's not just one. Wound that constitutes one or the other. It's a combination of things that can be taken into account, but serious injury involves more long lasting impairment or a more harmful impairment than me injuries.

But when branding someone's

Melissa Castan: skin like consenting to have your skin branded, which is painful and long lasting, is that serious injury, I think

Jamie Walvisch: it would be. Yes.

Melissa Castan: Okay.

Jamie Walvisch: And so there is still a need in Australia to work out which approach would be taken, would it be The English approach of [00:24:00] these things should be outlawed unless there's a category for them or these things should be okay.

Unless there's a reason not to do it's never come before the court. We've had some cases come before the courts of people who have died in the course of sad, masochistic. Sex. And it's been clearly the case that they've said you can't consent to death. But that's a different issue because that becomes one that's wrapped up with questions of euthanasia and so on.

Whereas in Brown we weren't talking about death.

James Patterson: Has this led to a inconsistency when it comes to the legal approach to consent? In s and m cases as opposed

Jamie Walvisch: to sexual assaults? That's right. And I think it's one of the interesting things here. I think there are a couple of inconsistencies in the law that this has resulted in.

So one is across different jurisdictions, there have been a range of what are called rough sex defense cases, which is where [00:25:00] there's an allegation of rape and the. Man almost always says that I thought she liked it rough. And so the woman is saying, I didn't consent to that, and he is saying, but I thought that she did.

Now rape has a few different elements to it, one of which is there has to be a lack of consent, which in those cases. There clearly was if the woman is saying, I didn't consent. But the other aspect of it is that the perpetrator has to have been aware of the lack of consent or proceeded regardless of whether or not she consented.

And so in these cases, his claim is I thought she did, therefore I didn't have the appropriate mental state. Now, if you follow the reasoning from Brown. He shouldn't be allowed to say that if she has suffered some kind of bodily injury, because even if he thought that she consented, it wouldn't be a defense.

If you're engaging in rough sex, that causes some kind of harm, but the [00:26:00] courts have never gone there. And so you have this perverse situation where if you want to be injured for sexual purposes, you can't, but if you don't want to and you are raped. That's okay. So back to this case what happened

James Patterson: to the men who were caught up in this?

Jamie Walvisch: They were sentenced to a range of different penalties ranging from conditional discharge to five years imprisonment. Brown himself died imprison, as did Lasky, who was one who went to the European. Court of human rights. So it was quite sad. They all obviously went through a very significant trauma in the context of this, as did the sadomasochistic community in general who started to feel a lot of fear about the potential invasion of their personal privacy.

We're

James Patterson: gonna put some further reading material up on the Just Cases website. [00:27:00] It's very, it is very confronting. We actually haven't even gone into any of the details of what was depicted, so a warning if you're reading that. But for now, thank you Jamie. Jamie Povich from. Monash Law School.

Thank you.

Melissa Castan: And Caroline Henkels. Thank you very much. Thank you, Melissa. Catch you next time.