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A Few Hard Cases? Sport, Sadomasochism and Public Policy in the English Courts

Published online by Cambridge University Press:  18 July 2014

David McArdle
David McArdle
Affiliation:
School of Law, The Manchester Metropolitan University
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Extract

The decision of the House of Lords in R. v. Brown has been well documented as one which has serious repercussions for the civil liberties of homosexuals within the United Kingdom, its most notorious ramification being that one cannot consent to the infliction of injury upon oneself in the course of homosexual sadomasochistic activities. The case continues to arouse strong passions in the gay press and amongst civil liberties groups, and the recent announcement that the European Court of Human Rights is to hear the appeal of the men involved has confirmed that this particular “hard case” will continue to exercise the minds of legal practitioners, academics and others for some years to come.

In addition to its implications for sadomasochistic activities, Brown indirectly raises a myriad of other issues. One of these is the question of to what extent the courts should intervene in the case of injuries inflicted during the course of sporting activities. Although the Crown Courts (where the most serious criminal cases of England and Wales are heard) have recently shown an increased willingness to intervene in cases where the injuries inflicted are particularly severe, my preliminary research suggests that the prosecuting authorities are reluctant to bring such cases to court, although they almost certainly would do so if an incident which gave rise to similar injuries had occurred in a nonsporting context.

Type
“Intervention”
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 10 , Issue 2 , Fall/automne 1995 , pp. 109 - 117
Copyright
Copyright © Canadian Law and Society Association 1995

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References

1. [1993] 2 All E.R. 75, A.C [hereinafter Brown].

2. See, for example, Bibbings, L. & Alldridge, P., Sexual Expression, Body Alteration and the Defence of Consent (1993) 20 Journal of Law and Society 356CrossRefGoogle Scholar.

3. “Jailed Gays Win Right to Europe Case” The Guardian (19 January 1995) 5Google Scholar.

4. For example, in R. v. Blissett (1992) in The [London]Times (5 December) the magistrates threw out a case against a professional soccer player who badly injured another by elbowing him in the face after hearing evidence from a top soccer administrator that such challenges were “part of the game”.

5. Successful recent prosecutions have included the imposition of four months' detention for inflicting a broken nose during a rugby union match: Royal Navy v. Russell (1994) in The [London] Times (24 February). In R. v. Piff (1994) [unreported] a sentence of six months' imprisonment was imposed for fracturing an opponent's cheekbone during a soccer match. It is submitted that if such severe injuries had been inflicted by the appellants in Brown rather than in the course of a sports event, their sentences would have been even longer. Infra note 8.

6. The word “victim” was consistently used in the House of Lords to describe those against whom the injuries were inflicted. I use it here to highlight the fact that, from the start, their Lordships had taken the view that they were dealing with an abusive relationship. “The use of ‘victim’ could be contrasted with ‘receiver’, which has none of the connotations of lack of consent, misuse, abuse etc.”: Moran, L., “Violence and the Law: The Case of Sadomasochism” (1995) 4: 2Journal of Social and Legal Studies 225CrossRefGoogle Scholar.

7. R. v. Brown [1992] 2 All E.R. 552, 555f, C.A.

8. The section 47 offence is the more serious of the two: to come within the scope of section 47, the injuries must not be permanent but they must be more than merely transient or trifling. Section 20 involves the infliction of a transient wound: the whole skin of the victim (not merely the epidermis) has to be broken if the requirements of section 20 are to be met. The maximum penalty for an offence under either section is one of five years' imprisonment; the appellants in Brown initially received sentences of up to four years' imprisonment although those sentences were reduced on appeal.

9. Brown, supra note 1 at 77h.

10. Ibid. at 92b.

11. Ibid. None of the judges who dealt with the case during the three stages of trial and appeal missed an opportunity to comment upon the homosexuality of the men involved. Those comments ranged from the perceived likelihood of older gay men corrupting younger men (per Lord Lane, supra note 6 at 560 to the inevitable, ill-informed comments about sadomasochism and AIDS (Lord Lowry obliging, supra note 1 at 100f. The case would never have got to court had the sadomasochistic ring been a heterosexual one, even though the question of whether ‘consent’ could genuinely be given in such a case would be a far more important issue for the courts to consider.

12. Brown, supra note 1 at 101d.

13. Ibid. at 105b.

14. Ibid. at 109c.

15. Including a number of Canadian ice hockey cases, notably R. v. Ciccarelli (1989), 54 CCC (3d) 121.

16. See, in particular, R. v. Coney (1882), 8 Q.B.D. 534.

17. 1989 SCCR 119 [hereinafter Butcher]. On January 25 this year, Eric Cantona, a star player with the leading English soccer team Manchester United, kicked and punched a spectator shortly after being sent off in a high-profile league game. The police superintendent in charge of crowd control at the game said “I've never seen anything like it. There could have been a riot in there.” The Guardian (26 January 1995) at 18)Google Scholar. Bearing in mind the rationale for the prosecution in Butcher, the subsequent action against Cantona for breach of the peace was inevitable.

18. Brown, supra note 1 at 108j.

19. His Lordship prefers “active sports.” Lord Jauncey's tastes lie in fishing, cycling and shooting, Lord Lowry likes cricket and golf: Who's Who, 1993. (London: A & C Black, 1993)Google Scholar. The sporting interests of Lord Slynn and Lord Templeman are not listed.

20. Brown, supra note 1 at 110f.

21. Ibid.

22. R. v. Jonea (1986), 83 Cr App C.A. 375 at 379 (per McCowan J). I am indebted to Les Moran at the University of Lancaster for bringing Jones to my attention: supra note 6 and accompanying text.

23. (1990) The [London] Times (7 December).

24. Brown, supra note 1 at 85d.

25. Ibid. at 91 (per Lord Jauncey).

26. From Dominici, or the Triumph of Literature in During, S., ed. The Cultural Studies Reader (London: Routledge, 1993CrossRefGoogle Scholar.