THE LEGAL CONSEQUENCES OF BDSM ACTS
Gary McLachlan LLB, LLM
Ph.D Student, Exeter University
Abstract
In this paper I use the political theories of Hannah Arendt, as well as critical
legal theory which argues against assumptions based in liberal theory1 to reevaluate sexual offences (BDSM)2 and touch on the principles which regulate
speech, outside of the dialogue on 'freedom of expression' as a human right.
Firstly I set out a series of legal tests which arise from consideration of the
cases and theories, and test them against fact, theory and case law to determine
the concepts of ethics, motive, consent and capacity within the criminal justice
system, as well as examining the existence of consequences. Consequences are
included since that allows the determination of answers that would fit within
the framework of restorative justice.3
The argument is driven from an Arendtian perspective, but with the inclusion
of elements of dignity discourse in equality law so that the focus of the law
includes values of self-worth and self-respect both for the victim and the
perpetrator. Since the offences are constructed from the actions of those taking
part in BDSM sexual encounters, the victim here is normally also taken as a
perpetrator. Since it is an Arendtian perspective I have assumed that no legal
solution is possible until a political solution is created; that law and politics
exist to serve different ends.
I would like to thank Chris Ashford4 and Matthew Burton5 for their thoughts
and comments on an earlier draft of this work; any errors that remain are
entirely my own responsibility.
Theoretical Introduction
The political theory of Hannah Arendt6 is not easily analysed in the setting of a
single paper, but what it does give is a basis for concepts of individuality,
plurality7 and common understandings involving belief and responsibility,8
D M Kahan ‘Two Liberal Fallacies in the Hate Crimes Debate’ Law and Philosophy, Vol. 20, No. 2,
Hate Crime Legislation (Mar., 2001) pp. 175-193, citations given under footnote 1, at p. 175
2
Bondage, Domination and Sadomasochism
3
The Barrister Magazine online (2011) <http://www.barristermagazine.com/article-listing/currentissue/criminal-justice:-areas-for-action.html> accessed on 20 February 2011
4
Reader in Law, University of Sunderland
5
PhD Candidate, University of Birmingham
6
H Arendt ‘The Human Condition’ second edition (University of Chicago Press, 1998) ISBN 978-0226-02598-8
7
H Arendt ‘The Promise of Politics’ (Schocken Books, Ed. J Kohn, 2005) ISBN 978-0-8052-1213-6,
at p. 96; on the ‘absolute difference of all men from one another’ as individuals who only ever live in
common with each other
1
based in the concept of persons as beings who form social and political
structures that exist because we live in a world of appearances.9
To Arendt, no particular theorist was wrong in everything they said; but the
important factor to consider is what assumptions they have made that lead to
either the questions they asked being the wrong questions; or the answer given
as being the wrong answer. This dealing with assumptions frames the
theoretical evaluations given below, and should answer the question of ‘why’
these theories are examined here, rather than any other.
I also considered the reasoning of harm as excluding consent to harm; this
comes from Janice Richardson’s appraisal of Jean Hampton’s feminist
contractarianism10 that would allow us to prevent harm to persons who have a
poor opinion of their own self-worth. This gives us a more nuanced picture of
the individual victim, rather than accepting the idea of ‘greater harm’ as the
only perspective by which law can operate; while being aware that this feminist
perspective does also contain critical flaws for our purposes since we are
examining same-sex relationships where the social norms assumed by certain
feminist positions might not apply.
Since the debate in these areas of law could also be framed within concepts of
equality, some consideration has been given to the thoughts of Lucy Vickers11
on ‘formal or symmetrical’12 equality and how the expression of that; through
the rule of law, can be distortive or lead to bad decisions being equally applied
to all; or find it difficult to determine the similarity in cases to apply the rule of
law. Vickers strongly sets out the ‘dignity’ concept of equality13 which leads to
deliberative levelling up14, rather than levelling down, and which includes
concepts of self-worth and self-respect.15
Aggregating this theory allows us to articulate the legal tests based on selfworth and self-respect, which are more subtle than the tests which have been
determined in common law over the course of several centuries.
Five Tests for Law
There are five elements to test against the outcomes of existing law under
H Arendt ‘Responsibility and Judgment’ (Schocken Books, Ed. J Kohn, 2003) ISBN 0-8052-1162-4,
at p. 59; on the judgment of collective responsibility in particular cases of guilt arising from crimes
during WWII
9
Op Cit. fn. 6, in particular the space of appearance, pp. 207-212
10
J Richardson ‘On Not Making Ourselves the Prey of Others: Jean Hampton’s Feminist
Contractarianism’ Feminist Legal Studies, Issue 15 (2007), pp. 33-55
11
L Vickers ‘Promoting Equality or fostering resentment? The public sector equality duty and religion
and belief’ Legal Studies, Vol. 31, No. 1, March 2001, pp. 135-158
12
Ibid, at p. 147
13
Ibid, at p. 148
14
Ibid, at p. 149
15
Ibid, at p. 149
8
consideration. While these tests might not be expandable across the entirety of
criminal law (in particular homicide), they act here to guide the formation of
legal norms in the areas of sexual behaviour and public statements about it:
1. Morality and Ethics can be held irrelevant to the content of a law, except
where;
a. consent can be held as invalid due to the age or mental incapacity
of one party,
b. there is an abuse of trust, or
c. witnesses are actually present who do not consent to, or are
offended by, the act taking place,
2. Motivation by itself is not a true measure of harm,
3. Consequences by themselves are not a true measure of harm,
4. We must measure any consent given both objectively and subjectively to
determine an outcome which upholds the rule of law without setting bad
precedent,
5. That an absurdity in law based on a flawed assumption must be
removed.
1.
Morality and Ethics
Joseph Fletcher16 stated 50 years ago, that there were two reasons why older
sexual offences remain in statute law and are resistant to change. The first is
that legislators will not remove or even advocate the removal of these laws for
‘fear of appearing indifferent to morality’17 if they act and that the nature of
these offences is clandestine and therefore not controllable except where
violations of the law come to light in some way.18 The core of the arguments on
morality here accept that judges will use their own moral reasoning in any case
which might be seen to have a moral nature, but that the law should be
consistent in the way it incorporates morality or else lose authority to speak on
these matters.
The ethical analysis19 reaches the conclusion that enforced morality is no kind
of morality at all; an external obligation does not act in the same way as the
voluntary inclusion of a code of ethics by an individual; that any element in a
law which is assessed for blameworthiness cannot ascribe the same level of
blame to a person who merely fails to behave as the law demands, as opposed
to the person who matches the moral code given with their own private morals
and yet still goes on to commit exactly the same offence.
J Fletcher ‘Sex Offences: An Ethical View’ Law and Contemporary Problems, Vol. 25, No. 2, Sex
Offenses (Spring, 1960) pp. 244-257
17
Ibid, at p. 244
18
Ibid, at p. 245
19
Ibid, at pp. 251-253
16
When giving conclusions on what offences might be possible in law, Fletcher
proposes those which involve sex with persons under the age of consent;20 acts
which are a public nuisance; and those where assault, violence, duress or fraud
are involved.
Given that Fletcher was writing at a time when the outlawing of homosexual
sex was still considered permissible to both common law and human rights, I
intend to qualify his final reason with a more modern stance; assault, violence,
duress and fraud here are all familiar categories of the common law, but they
appear to be largely an adaptation of the concept of consent, so we could
usefully reframe those three categories given into a new statement: the first test
as given above.
In terms of witnessing and the nature of appearance, it is to be emphasised that
sexual acts in public places where the nature of the witness cannot be
controlled (where their consent cannot be pre-determined) may be of a different
class of appearance than a private appearance. Certainly where the is a real
possibility that a child who cannot consent might witness an act then the
regulation of appearance could be necessary.
2.
Motives and capacity to act
The problem for the law in interpretation is that the construction of the
individual varies as much between individual theorists as it does across time;
while for certainty law must keep a relatively static view of what individuality
means in terms of the subject of the law, as well as allowing subjectivity to be
tested against objectivity in being able to question the concept of a ‘reasonable
person.’ There are arguments both for and against the reasonable person test as
applied in law; but they will not be argued here.
In order to add to the concept of the rule of law by the inclusion of dignity in
equality, I shall turn to the concepts of self-worth and self-respect as they
appear in the theories outlined above and two studies of BDSM21 to support the
contention that consent has been described by law in a way that is too limited.
Identity is disclosed for Arendt by the observation of action and speech22 (in a
political sense), given that an observer can tell from the observation more about
the subject than they intended to disclose. The observer can see the truth of
who the subject is through their speech and action, which is the core of her
theory that who we are is a plurality of identities. This plurality of self (the
who) is made from many different strands; ‘his qualities, gifts, talents [...]’23
20
Ibid, at p. 257
M D Weiss ‘Working at Play: BDSM Sexuality in the San Francisco Bay Area’ Anthropologica, Vol.
48, No. 2 (2006), pp. 229-245; M Barker and D Langdridge ‘Silencing Accounts of Silenced
Sexualities’ (2009), in: R Ryan-Flood and R Gill (eds.) ‘Secrecy and Silence in the Research Process:
Feminist Reflections’ (Routledge)
22
Op Cit fn. 6, at pp. 178-180
23
Ibid, at p. 179
21
which would include within it singular identities such as being a Christian or
being a homosexual (the what). Arendt is speaking of unique (political) action
here rather than everyday activity, but this concept of a plurality of identities in
all forms of human interaction lies at the heart of her work.
What it reveals is that self-worth cannot be an entirely internal concept; that the
worth of one’s self to any individual must be measured against someone else.
That this someone else is usually a plurality of persons known to the subject to
form a subjective view24 of common understanding.
Taking this concept to the matter of behaviour we can see that the more
rarefied a certain element of behaviour is, the less likely we as subjects can
draw a common understanding on it to judge our self-worth by. To put that
another way, the more our behaviour steps outside that which is normal, the
less common understanding exists to give us a view of ourselves from a
common position. Where our behaviour deviates sharply from the normal or is
disapproved of the more likely we are to attempt to hide disclosure, which
would also affect our judgment of our own self-worth.
Returning to Fletcher, we can see that the decriminalisation of BSDM would
fall under the category of legislators fearing to appear indifferent to morality if
they act. This kind of fear appears where all minority or gendered choices are
made; for example decriminalisation of drugs, homosexual behaviours and the
allowance of abortion.
Regarding certain aspects of BDSM in the light of morality and motive, and
comparing them with other criminal acts or human rights abuses, we can break
down the elements and set a level for appearances of BDSM that should not be
criminal.
The giving of consent in a BDSM relationship invalidates a charge of false
imprisonment, since any restraint in appearance is voluntary; this can be
distinguished from any invalid form of consent such as duress, which might be
present in any kind of trafficking offence.
The sale of persons (chattel slavery) is both a criminal offence and a human
rights violation and this is distinguishable from events such as charitable
‘auctions’ of persons designed to set up contractual obligations to discharge the
‘sale’ (as being based in valid consent) from those transactions which are
forcible. There are some additional categories of appearance within the
identities examined by Weiss where the appearance of chattel slavery is
present, but genuine consent is given by participants.
The gift of a person intended to avoid trafficking laws, as opposed to
24
Ibid, at p. 183 on the intangible subjective in-between
polyamorous arrangements in certain BDSM situations is without genuine
consent; where the polyamorous situation again has a valid consent attached to
a situation that otherwise might appear to be identical.
The difference lies entirely in the intent of the victim by appearance. The
situation is that the victim could say “I intended [a consequence], this
consequence has occurred and thus my intention has been actualised through
appearance.” Where this condition can be met then no crime can have occurred
beyond a moral disapproval of the consent itself; and this is insufficient for law
under our tests. This statement also clarifies the earlier exclusion of homicide
from these tests, since there could be no ‘I’ that could speak after dying.
Turning to what we might describe in law as a ‘normal’ conscience (one whose
intent/action can be described as reasonable) leads us to examine a facet of the
Eichmann case as described by Arendt.25
Arendt describes that on the moral question of ‘blameworthiness’ Eichmann’s
judges missed the ‘greatest moral and even legal challenge of the whole
case.’26 Eichmann was not morally or legally insane and indeed was normal
within the ‘conditions of the Third Reich.’27 Without drawing out any
comparison between the actions involved in Eichmann’s case and the acts
involved in BDSM or ‘hate’ expression, it is clear that what a court of law is
prepared to accept as normal and how an otherwise rational person sees normal
as it compares to themself may be so different that intent alone cannot be
recognised as the basis of criminal proceedings.
If I do not share the judgment of another where it relates to my own beliefs or
behaviour then no reason will prevail. My own subjective view is the only
point which can be judged, and no ‘reasonable person’ test when applied by
another would reveal more than the act itself has already revealed by
disclosure. There is emerging evidence for this in political matters, where when
confronted with material that contradicts belief, someone expressing a
particular political opinion will not change their mind, but can in fact become
entrenched in their opposition.28 Undoing this entrenchment is a political
(discursive) task, not a legal (prohibitive) one.
In Silencing Accounts, Barker and Langdridge29 set out the difficulties of
H Arendt ‘Eichmann in Jerusalem: A Report on the Banality of Evil’ (Penguin Books, 1994
paperback, 1964 text)
26
Ibid, at p. 26
27
Ibid, at p. 26
28
E Kaplan and S Mukand ‘The Persistence of Political Partisanship: Evidence from 9/11’ January 26,
2011 <http://www.econ.umd.edu/~davis/eventpapers/KaplanPersistence.pdf> accessed on 25 February
2011; and V Swami, T Chamorro-Premuzic and A Furnham ‘Unanswered questions: A preliminary
investigation of personality and individual difference predictors of 9/11 conspiracist beliefs’ Applied
Cognitive Psychology, 24 (2010) 749–761. Both articles show patterns of entrenched belief emerging
which can be explained by cognitive bias (a pre-existing belief that cannot be changed).
29
M Barker and D Langdridge ‘Silencing Accounts of Silenced Sexualities’ (2009), in: R Ryan-Flood
and R Gill (eds.) ‘Secrecy and Silence in the Research Process: Feminist Reflections’ (Routledge)
25
including new narrative accounts where a common perception has branded a
sexual practice as pathological,30 or dangerous in some other way.31 These
representations arguably place those engaged in ‘real’32 BDSM into the realm
of criminal and pathological.33
The conversational passages,34 beyond the warning of assuming a common
position from subjective accounts, tell of individual experiences of BDSM
described by participants as ‘therapeutic and healing.’35 This is an obvious
contradiction of the outside view of those participants as being pathological
individuals.
Weiss’s article,36 which is also cited by Barker and Langdridge, chronicles the
sheer variety of identities (the ‘what’ of singular description) now displayed
within BDSM.37 These challenge any singular description, even of heterosexual
or homosexual, as being inadequate to fully describe individuals in the same
way as they describe themselves. She expands on Judith Butler’s distinction38
between being and doing to describe BDSM not as an identity but as a series of
acts; an appearance, which ties this argument back into Arendt’s world of
appearances. In this respect, the disclosure of one’s self through BDSM, while
a more private act than a political one is nonetheless a disclosure which reveals
the truth of one’s self. I submit on this point that engaging in BDSM sexual
activity is an honest disclosure of one’s self.
When examining the Socratic statement of harmony with one’s self,39 Arendt
states that ‘I am identical with myself only for others to whom I appear as one
and the same.’40 She draws out the concept of an internal dialogue between
one’s self as being the conscience; given a presence in the world by
judgment.41 Following on from the previous discussion of disclosure by action
when taking part in BDSM sex we can see that the concept of self as a
participant, given expression through actual participation is not at being at odds
with one’s self, where the subject chooses to take part.
<http://oro.open.ac.uk/17270/2/626A29DE.pdf> accessed on 22 February 2011. Page references to the
online version.
30
Ibid, at p. 2
31
Ibid, at p. 5
32
Ibid, at p. 6; the use of inverted commas around ‘real’ to denote those instances of BDSM which are
‘playful’ (i.e. furry handcuffs that do not actually restrain)
33
Ibid, at p. 6
34
Ibid, at pp. 7-8; 10-12
35
Ibid, at p. 7
36
M D Weiss ‘Working at Play: BDSM Sexuality in the San Francisco Bay Area’ Anthropologica, Vol.
48, No. 2 (2006), pp. 229-245
37
Ibid, at p. 232
38
Ibid, at p. 233, cited as (1990:25); J Butler ‘Gender Trouble’ (Routledge, 1990). The concept is ‘that
“being” a sex or gender is fundamentally impossible.’ (Second edition, 2008 reprint), at p. 26
39
Op Cit, fn. 8, quoted in full at p. 181
40
Ibid, at p. 184
41
Ibid, at p. 189, using the aesthetic judgment of Kant.
The problem with making participants in BDSM pathological is striking the
same kind of externalised view of them as we have for others who we label as
mentally deficient and incapable of making a rational choice about sexual
activity. Here I refer to the work of Lucy Series42 and her examination of D
Borough Council v AB43 in which she recognises that to properly consent, one
must understand the nature of consent. Series recognises that the liberal option
in the 1913 Mental Deficiency Bill was taken; but that the consequences where
that the same Liberal (moral) mistake was made with regards to mental
capacity as was later made with regard to physical injury – a broader view of
harm to Society was taken, rather than a narrow view of harm to the individual.
Education about the mechanics of sex is not required; that is a biological
function and not one that can be rationally regulated by law. What is required is
an individual understanding of what we are consenting to take part in, and to
consider the consequences of that act to ourselves.
It is proper, therefore, to determine that consent is genuine, but to assume that
it cannot be genuine from the act rather than the actor is the wrong test.
3.
Consequences
Dan Kahan44 asks of us that we step out ‘from behind the shadow of John
Stuart Mill’45 by changing the way we frame debate on speech as a criminal
act. Mentioning the level of intention in homicide46 and the doctrine of duress
allows Kahan to put forward the argument that the offender’s reasons for
carrying out an act are judged when settling a sentence and can mitigate or
increase the punishment accordingly. At this point of sentencing the feelings of
the victim or the harm done are not measured; the law is using motivation (or
intent) to ‘individuate harms and to measure their extent.’47
There is an ‘expressive parallel’48 between intention in hate crime legislation
and the rest of criminal law recognised by Kahan, but the main question is
whether the moral values expressed are correct when present in this form of
law.
When examining the concept of ‘greater harm’49 Kahan states that the larger
42
Hessian Pepper Law Blog <http://thesmallplaces.blogspot.com/2011/02/incapacity-sexualitylaw.html> accessed 25 February 2011
43
D Borough Council v AB [2011] EWHC 101 (COP)
44
Op Cit. fn. 1
45
Ibid, at p. 193
46
Ibid, at p. 177
47
Ibid, at p. 179. There is an assumption here; by evaluating the side issue of environmental harm and
attitudes towards it Kahan leaves out the idea of sharing damage (i.e. carbon trading) where an intent to
damage is explicit in the person producing an excess of harmful substances, but can be offset with
someone who is not creating as much harmful substance as the law would allow them. In this analysis
he has assumed that rational beings cannot hold two opposing beliefs or ideals at one and the same
time, and remain rational.
48
Ibid, at p. 183
49
Ibid, at p. 184
part of the problem lies not in empirical evidence but in the concept itself. The
deterrence of hate crimes is based in an aversion on the part of legislators for
the values expressed by persons engaging in the acts covered by those laws.
This comes down to third parties to any act judging the act on their own
subjective reaction50 to it. Unfortunately for this line of reasoning, that was the
same argument that Lord Devlin used to argue against the decriminalisation of
homosexuality,51 an argument which is still used to argue in favour of
criminalisation of anything with which the individual speaker disagrees. This
leaves the law in the position of having to explain why it ‘is right to credit
aversions to hate criminals’ values and wrong to credit aversions to same-sex
desire.’52
Kahan states that while it is possible to ‘dispel the doctrinal obscurity’53 of the
law’s moral core it is a work of some philosophical labour to do so, the point
being that obscuring a moral point in law using liberal discourse is wrong
because the consequences are that ‘traditionally hierarchical social norms’54 are
entrenched against progressive change. As one example; it is possible to both
decriminalise same-sex relationships and still allow a plea of ‘diminished
responsibility’ to a murder charge on the grounds of the ‘gay panic’ defence.
The law has adapted somewhat to social change but still enforces the older
traditional values when judging intent.
The real question for Kahan is whether law should be used to condemn values
held by offenders; whether it is more worthy to condemn them55 for what they
think than what they achieved.
Consequences in criminal acts are often phrased in terms of the Millsian
position on greater good or greater harm; that society is at danger, rather than
specific individuals.
To qualify a consequence however requires some analysis of them; that
consequences should be real and not false or interpreted possibilities can be
drawn from cases like R v O’Dwyer,56 where the consequences for any
individual victim of the defendants actions would have been immeasurably
harmful to any selected victim; and the evidence was that O’Dwyer was a
repeat offender.
50
Ibid, at p. 185
Ibid, at p. 186
52
Ibid, at p. 186
53
Ibid, at p. 189
54
Ibid, at p. 190
55
Ibid, at p. 193
56
R v O'Dwyer (1988) 86 Cr. App. R. 313
51
The issue of consequences was raised in a different way in RAV v City of St
Paul,57where it was ruled that an ordinance restricting what was described by
Scalia, J as viewpoint discrimination was not compatible with the First
Amendment. This is described as the Court requiring the State to be neutral58
where the actual effect is the same as that given directly above; that the answer
to participatory ‘hate crimes’ lies not within law, but within politics.
Effectively the court is demanding from the State the right to remain neutral on
value judgments about opinion, as opposed to fact displayed through a genuine
appearance in the world in a single act. The recognition that the law itself
should remain neutral in these matters is required in explicit terms; in other
words that legislators should recognise matters which are for political
discussion only, and not legislate them to remove their own discomfort in
having to take part in that discourse.
Especially in regards to freedom of expression, that the problem is political
rather than a legal issue is demonstrated by Peter Tatchell59 in his offer to speak
in defence of a person charged with ‘insulting words.’60 Tatchell’s position is
that there were no consequences to speak of beyond the moral supposition that
indirect harm is caused to persons belonging to the ‘category’ of those offended
by insulting words. Offence alone is not sufficient for criminal charges to be
brought; especially where the offending position comes not from an intent to
cause harm, but from a genuine belief in the words spoken.
4.
Consent
Attempting to measure consent can be difficult, so this section assumes that we
are dealing with an ordinary person in the sense that has been described above.
Namely, a person who chooses to take part in an act.
There is some measure here of common understanding; in that for consent to
have been honestly and validly given, then that which was described by words
and then enacted, has to have been one and the same thing. All participants
have respected their own beliefs and choices and any observer could agree that
what was revealed was essentially the same as that which was planned.
It was the case of R v Coney61 (1882) which set the long-standing common law
position that the ‘consent of the persons actually engaged [...] does not afford
any answer to the criminal charge of assault.’62 This precedent entered the
criminal law and was expanded; and eventually held in R v Brown63 to also
RAV v City of St Paul, Minnesota 505 US 377 (1992); examined in I Cram ‘Contested Words: Legal
Restrictions on Freedom of Speech in Liberal Democracies’ (Applied Legal Philosophy, Ashgate,
2006) ISBN 0 7546 2365 3, p. 130 fn. 162
58
I Cram ‘Contested Words: Legal Restrictions on Freedom of Speech in Liberal Democracies’, at p.
131
59
Peter Tatchell online <http://www.petertatchell.net/free_speech/cps-drop-case-against-streetpreacher.htm> accessed on 23 February 2011
60
Public Order Act 1986, c. 64, s. 5(1)(a)
61
R v Coney (1882) 8 QBD 534
62
Ibid, at p. 534, summary of rulings
63
R v Brown [1993] 2 All ER 75
57
cover offences under ss.20 and 47 of the Offences Against the Person Act 1861
(OAPA), despite the fact that in R v Wollaston64 it had been decided that
consent was a defence under s.62 of the same Act, which related to charges
brought against a man caught engaging in acts of oral sex with teenage boys.
In lead judgment in R v Brown, Lord Templeman cited from R v Coney, and
finished his judgment with ‘[s]ociety is entitled and bound to protect itself
against a cult of violence. Pleasure derived from the infliction of pain is an evil
thing. Cruelty is uncivilised.’ This is clearly a moral judgment, not a legal one.
When one considers the dissenting opinion of Lord Mustill, and his use of R v
Clarence (1888) 22 QBD 2; a case like Wollaston in that it dealt with sexual
matters, but which (like Brown) did so through the sections on violent conduct,
rather than the sexual offences65 it becomes apparent that Lord Mustill could
not find an ordinary set of circumstances under which consent would be a
defence.
Returning to Coney, in Brown Lord Lowry admitted that ‘The case contains a
number of inconclusive and sometimes conflicting statements’, which is true;
what he doesn’t analyse is the language used to describe both the prize fighters
and the crowd. Nor does the older case face any questions over the principles
espoused by the judges who concurred that all witnesses present at the fight
were equally guilty of aiding and abetting the assault, since ‘the injuries given
[...] are injurious to the public, both because it is against the public interest [...]
and because prize-fights are disorderly exhibitions, mischievous on many
obvious grounds.’66
What is interesting is that Hawkins, J, does mention the older case law on
sexual assaults and contrasts them by stating those cases had no element within
them of breaches of the peace.67 Lord Jauncey in Brown actually cited
Hawkins, J from 553 and 554 but ignored this obiter passage at 555, which
clarifies the reasoning and the difference in law at that time.
It is clear then, that in Brown, several errors were made in judgment; the
inclusion of subjective morality, which we follow Fletcher to disagree with,
and also the exclusion of the single clearest obiter statement in a lead case
(Coney) which, if followed, would have possibly resulted in the majority being
overturned in the House of Lords and the decision being reversed.
For these two reasons, the decision given in Brown was the wrong decision;
and in private consensual assaults involving a sexual element consent should in
fact be a full defence to the charge that any element of assault is unlawful.68
64
R v Wollaston (1872) 12 Cox C.C. 180
that were later moved from the OAPA and into the Sexual Offences Act 1956
66
R v Coney (1882) 8 QBD 534. Stephen, J, at p. 549
67
R v Coney (1882) 8 QBD 534. Hawkins, J, at p. 555
68
This assertion is made on absolute grounds while ignoring the possibilities of charging assaults on
the grounds of infection with sexually transmitted diseases
65
Analysing the minority comments in Coney to their full extent on the presence
of witnesses; those who are accomplices unless they proffer disagreement on
the intention and acts of those taking place we reach a position where we have
to examine collective responsibility.
The court of first instance and the minority at the Queen’s Bench proposed that
witnesses; unless they refute participation in the appearance, become more than
observers. This is an uncomfortable position keeping in mind the greater acts of
collaboration or collective guilt reflected through history in large-scale events.
Indeed, Eichmann’s ‘cog in the wheel’ argument reflects an element of
attempting to avoid personal complicity by denying that any other person
would have acted in a different way. While the scale of these crimes or events
is incomparable; the question of the burden of individual responsibility has
moved on from Coney, in that we no longer blame mere observers for staying
at the scene of a criminal act.
When looking at moral philosophy, Arendt emphasises that Kant69 would not
have ‘taken for granted’ that people act according to rational judgment, but that
people might fall into self-contempt70 if a choice is made to take part in the
appearance without objection.
The main problem that Arendt saw with any position of collective
responsibility is that it absolves the truly guilty of any responsibility; ‘where all
are guilty, nobody is.’71 That collective responsibility has arisen as a category
is a mistake; law deals with the individual and politics with the concerns of the
collective; if there is a situation where a great number of persons could be held
by law to be collectively guilty then the answer to the problem lies in politics
(discourse) and not in law (regulation).
Witnessing as a category of consent, to have any relevance to a crime in terms
of giving a burden of responsibility to the witness should blame only where
direct action in the appearance has taken place. This must be more than
accidental or peripheral and should be limited only to those participating
directly. This stands even where a moral burden should have been accepted by
the witness in ordinary terms; a moral burden is not a legal one and should
never be treated as such.
5.
Assumptions
Pierre Schlag72 reaches the conclusion that the assumptions built in to liberal
justification mask the nature of liberal thought. Those involved in the use of
liberal justifications cannot see that they are arguing in circles having already
69
Op Cit fn. 8, at p. 62
Ibid, at p. 63
71
Ibid, at p. 147
72
P Schlag ‘The Empty Circles of Liberal Justification’ 96 Michigan Law Review (1997-1998) pp. 146
70
assumed too much as the basis for their argument.73 This conclusion is
informed by the position that a myth74 is set up not to deny certain things, but
to purify those elements with a basis in nature.
The most important part of the analysis for our purposes is not his conclusion,
but the idea that liberal reason can be used to respect individual freedom and
autonomy but nonetheless come to a critical conclusion that is apparently
authoritative75 based on a given concept of ratification.76 It is this concept of
ratification in terms of a social contract which eliminated Jean Hampton or a
Rawlsian analysis of the issues in this article. Arendt addresses the ‘social
contract’ point and emphasises that Locke’s model of contractarianism;77 a
community of agreements which cover consent and intent as well as dissent, is
closest to the actual truth of ratification. Arendt however, also emphasises78
that to her tacit consent assumed by nationality or other ‘group [...] by birth’ 79
is entirely fictitious.
Final thought
Where ‘intent’ is an excuse for the action of others; for example in the
appearance in the world of a belief or shared words that fall into the category of
‘insulting words’ then there should be no intent to law; or intent alone is
insufficient unless we are falling into the trap of collective responsibility when
assigning (as the law does) individual responsibility for a serious harm. This is
why motivation by itself cannot be the basis of a law.
The line to draw in terms of genuine consent has been miscast by the ‘greater
harm’ argument, the shadow of John Stuart Mill that has obstructed thought in
terms of legal development. To emerge in part from this shadow the line cannot
be drawn in such a way that it excludes voluntary actions that are not outside
the way that someone views themself.
It is proposed also that only where an intent to act and a consequential harm to
which the victim did not consent are present all together in an act should it in
fact be a criminal act. There may be lower categories of blame which would be
actionable as Torts in civil law in their own right in cases of less severity, but
the criminal law should exist only to examine individual legal harms and not to
attempt answers to moral questions. When ‘blaming’ the law should not
attempt to assign automatic blame, but should individuate harms and measure
intent against consequences to eliminate the dignified participant so that the
true victim also has self-worth and self-respect.
73
Ibid, at p. 46
See figures at Ibid, at pp. 18, 35, 43 for examples of constructed myths
75
Ibid, at p. 7
76
Ibid, table at p. 18
77
H Arendt ‘Crises of the Republic’ (Harvest Books, 1972) ISBN 0-15-623200-6, at p. 87
78
Ibid, at p. 89
79
Ibid, at p. 88
74