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R v Brown and Relevance of Consent

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R v Brown and Relevance of Consent Powered By Docstoc
					                                                     Orhun Hakan Yalincak © 2011. All rights reserved.


Is it justifiable that English and Welsh criminal law accepts that a person can consent to the
risk of sexual transmission of HIV, but refuses to recognise consent to harm constituting
actual bodily harm in the course of other consensual but violent sexual activity?

I.      Introduction

        The English law’s approach on consent to harmful conduct is poorly articulated 1 and

has developed in an incoherent fashion in terms of existing legal principles and authorities

and has led to a haphazard and inconsistent dimensions where consent may be relevant in one

facet of the act, but not in another,2 and left the law on consent to harmful conduct in an

unsatisfactory state.3

        On the one hand, the Court of Appeal in R v Dica4 clarified the role of consent in

negating liability for transmission of HIV.5 As noted in the judgment of Judge LJ in Dica,6 the

Court distinguished the authorities dealing with sexual gratification, See e.g. R v Brown,7 and

held that such authorities were limited to violent conduct involving the deliberate infliction of

bodily harm.8 The decision in Dica, unlike in Brown below, upheld the principles of personal

autonomy9 and the “general rule of minimal interference by the criminal law.”10

        On the other hand, while the minority approach in Brown emphasises consent as an

element which legitimises the harm doing, the majority marginalise consent: it becomes one

possible relevant element. 11 As suggested by Giles, this untenable inconsistency is the

“paternalism triumph[ing] over the theory of individual freedom” 12 or, as suggested by




1
  Kell(1994):121.
2
  Simester and Sullivan(2010):754.
3
  See n. 1above; see also Roberts(1997):34-35
4
  [2004]Q.B.1257(CA)(Judge LJ).
5
  See also R v Konzani, [2005]E.W.C.A.706 (CA)(Judge LJ) infra.
6
  op. cit., n.4 supra at para 47.
7
  [1994]1A.C. 212 HL.
8
  op. cit., n.4 at para 47-51.
9
  Clarkson and Keating(2010):297.
10
   Leng(1994):481; see also Ashworth(1992):28-29.
11
   Giles(1994):110-111.
12
   id.

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Clarkson and Keating, an example of legal moralism, not paternalism, prevailing over human

autonomy and the right to express their sexuality as they see fit.13

        This paper argues that these cases reflect the unjustifiable position of the state of the

law vis-a-vis to the question posed. It is respectfully submitted that the majority’s approach in

Brown is, at its core, judicial law-making at its worst and most confused – unchallengeable

because unacknowledged.14 Not surprisingly, the courts have reached mutually inconsistent

and competing decisions by allowing mutually consensual exposure to the potential risk of

HIV transmission, Dica supra,15 buttock branding as akin to tattooing, Wilson supra,16 but not

mutually consensual sadomasochistic injury where no permanent injuries were caused, 17 See

Brown supra. Further, this paper argues that by failing to grasp the issues in Brown openly,

the majority necessitated a complicated and detailed consideration of policy arguments in

each individual case,18 while concomittantly denying their policy-making role.19

                                                      II.

                        Current legal position vis-a-vis HIV transmission

        A.       Section 20, OAPA

        The current legal position with respect to criminal liability for the sexual transmission

of HIV is as follows: a person will be guilty of a criminal offence under section 20 of the

OAPA1861, if, knowing that he or she is suffering from HIV, he or she recklessly transmits it




13
   n.9 above at 295 n.108; see also Bibbings and Alldridge (1993): 356-366 (noting that “[i]t is legal moralism,
not paternalism, that indicts the masochist.”)
14
   n.9 above.
15
   n.4 above.
16
   [1996] 2 Cr. App. R. 241 (CA)
17
   Smith and Hogan(2008):599.
18
   See e.g. Wislon supra; R v Emmet, Times, October 15, 199 (Court of Appeal, Criminal Divison)(significant
injury was caused by the Defendant); R v Meachen [2006]EWCA 2414; see also R v Barnes, [2005]1W.L.R.910,
R v Slingsby, [1995] Crim.L.R.571; R v Brian H, 2001 WL 606476; and R v Keeble, 2001 WL 825706.
19
   n.11 above.

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through consensual sexual intercourse, and inflicts grievous bodily harm on a person from

whom the risk is concealed and who is not consenting to it.20 See e.g. Dica.21

        B.       R v Dica

        In Dica, the Court of Appeals held that an adult is entitled to give valid consent to the

risk of being infected with a potentially lethal sexually transmitted disease such as HIV. 22 The

court distinguished between consensual acts of sexual intercourse where there might be a

known risk to the health of one or other participants and those cases where participants were

intent on spreading, or becoming infected with, disease. 23 The court took the view that

criminalization of consensual taking of risks would involve an ‘impracticality of enforcement’

and would undermine the general understanding of the community that sexual relationships

were ‘pre-eminently private.’24

        C.       R v Konzani

                 1.       Only ‘informed’ consent will be effective

        In Konzani, the Court of Appeal made it clear that in order to operate as a defence, the

consent given had to be “informed.” 25 Judge LJ stated that “there is a critical distinction

between taking a risk of the various, potentially adverse and possibly problematic

consequences of sexual intercourse, and giving an informed consent to the risk of infection

with a fatal disease." 26 Judge LJ suggested that concealment of one’s HIV-positive status

almost inevitably meant that one’s sexual partner was deceived and that in such circumstances

any consent given was not properly informed.27 Furthermore, while Judge LJ accepted that an

honest belief in consent would provide a defence, he stated that “silence in these


20
   Ryan(2007):218-19. Note that in Scotland, the offence charged will be that of recklessly causing injury. See
e.g. HMA v Kelly, unreported, 23 February 2002.
21
   n.4 above at 1273.
22
   n.17 above at 604.
23
   id.
24
   op. cit. n.4 above at para 47-52.
25
   op. cit. n.5 above at para 41.
26
   id. at para 41-43.
27
   id.

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circumstances...is incongruous with honesty, or with a genuine belief that there is an informed

consent.”28 However, this aspect of the decision has been heavily criticized in legal literature

for overcriminalizing, 29 because the Court’s decision has “effectively” precluded the

possibility of consent or honest belief operating as a defence in the absence of disclosure by

the person infected.30

                 2.       Has Dica and its progeny Konzani settled the issue of knowledge with
                          respect to consensual exposure to the risk of HIV-transmission?

        As noted by Ryan, it remains unclear whether knowledge means actual knowledge or

whether it includes knowledge as to the risk that one may be infected.31 Indeed, Weait has

argued that actual knowledge is required under Dica while, on the other hand, Spencer has

argued that the decision in Dica means that criminal liability could be imposed “where one

partner, knowing that he is infected or he may be, fails to take precautions and infects a

trusting partner who is unaware of it.”32 See e.g. Adaye.33 Thus, there is still much uncertainty

as to what the precise legal position is with regard to liability for HIV transmission.34

                                                      III.

             Was the Court’s treatment of consensual HIV-transmission justified?

        Before this paper turns to the issue of whether the Court’s treatment of consent was

justified in Brown in the following section, an antecedent question must first be answered: is

the Court’s treatment of consent justified in Dica and Konzani?

        A.       Attempting to proscribe sexual activity completely is unrealistic

        In terms of HIV, total abstinence from sexual relations provides the best guarantee of

not infecting others, however, as noted by Judge LJ in Dica, the sexuality of HIV-positive

28
   id. at para 42.
29
   Ryan(2007), supra n.20, at 246-47.
30
   id. at 222; see also Weait (2004): 767-71.
31
   id. at 219.
32
   Spencer(2004):762; see also Ryan(2006):984.
33
   The Times, January 10, 2004; Guardian, January 13, 2004 (in imposing criminal liability, Judge Lynch stated
that the accused “knew it was highly likely” that he was HIV-positive.)
34
   As noted by Smith and Hogan, Dica together with its progeny must be read carefully in light of Meachen,
supra n.18. See also discussion infra.

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individuals must not be denied. 35 This is because, as noted by Smith, “[a]ttempting to

proscribe sexual activity completely is not only inhuman but an unrealistically extreme

expectation, more likely to discredit the law than achieve observance.”36 Then should the law

intervene at all?

        B.       Striking a balance

        Given the “general understanding of the community that sexual relationships are pre-

eminently personal to the individuals involved in them,” 37 the law must strike a balance

between the protection of non-infected individuals from harm on the one hand (i.e. harm

principal), with respect for privacy and autonomy in matters of sex and health on the other. 38

                 1.      Harm Principle

        Starting with the harm principle, as noted by Baker, it is culpability accompanied with

harmful consequences, which explains wrongness.39 This position says Baker, is premised on

the proposition that it is fair to punish those who wilfully harm others and violate the

“genuine individual rights of the victims.” 40 As argued by Baker, at its core, the harm

principle is supposed to act as a guide in order to avoid the law’s enroachment on an

individual’s sense of personal autonomy.41 Thus, it is a perfectly legitimate question to ask

whether and, if so, in what circumstances, a person should be held criminally liable for the

transmission of serious disease.42

                 2.      Liberal Approach

        In the same vein, if we adopt the “liberal legal tradition” that emphasises autonomy,

choice, individual responsibility and rationality, it is perfectly appropriate that the

transmission of HIV by people who fail to disclose their HIV positive status to partners who
35
   n.4 above at para 47-51.
36
   KJM Smith(1991): 328; see also Ryan, supra n.21, at 228.
37
   n.4 above at 1271.
38
   Ryan, supra n.20 at 228; see also Tadros(2001):377.
39
   Baker(2008):10-11.
40
   id.
41
   id.
42
   Weait, supra n.30, at 771.

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are subsequently infected should be punished. 43 However, this approach is not without

criticism because such an approach fails to adequately take into consideration the potentially

adverse consequences for public health which may follow, i.e. whether the use of condoms

can increase liability by proving the accused’s awareness of the risks, 44 or dissuade the public

from having an HIV test, and can ultimately do more harm than good.45

                                                      IV.

        How was the Court’s approach in Brown with regards to consent justified?

        A.       R v Brown

        In Brown, sadomasochists who had engaged in consensual beatings and genital torture,

which had not resulted in any participant receiving medical attention, were convicted of

offences of assault occasioning actual bodily harm. 46 The House of Lords was asked to

consider the relevance of consent to the offences of assault occasioning actual bodily harm

and unlawful wounding.47 The main issue before the House was whether consent to private

sadomasochistic activities meant either that the activity was lawful in the first place or that

there was a valid defence.48 The House of Lords, by a bare majority, upheld the convictions

and in doing so recognized certain categories of activity in which the law would recognize

effective factual consent to injury as valid in law.49




43
   id.
44
   See R v Cuerrier, [1998]2S.C.R.371.
45
   Weait, supra n.30, at 772.
46
   Smith and Hogan, supra n.19, at 599.
47
   Giles, supra n.11, at 101.
48
   id.
49
   Clarkson and Keating, supra n.9, at 295(these categories are based on “policy and public interest” and include
surgery, tattooing, ear-piercing, rough sport and extends to sexual activity with a known risk of serious sexual
disease.) See also Mackenzie (2008): 407 (noting that activities falling within these categories “share no
principled commonalities and were not justified in coherent fashion...but placed under the inchoate protection of
public policy.”)

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        B.       The majority approach in Brown was inextricably a policy issue that
                 should have been left for Parliament

        Brown represents a crucial turning point in the approach to consent because it is clear

that there are cases where, even if consent is not given, no assault takes place. 50 One possible

justification for the majority’s decision in Brown lay on policy grounds because, as noted by

Falsetto, the majority was attempting to define the boundaries of acceptable behaviour, in

order to avoid the possible infliction of harm on others. 51 Viewed from this angle, it is

respectfully submitted that the choice of approach by the majority itself was inextricably a

policy issue – a point conceded52 but ignored by the majority53 -- and a preference for one

approach over the other was, without doubt, a subjective policy decision, which the Court

should not have made.54

        C.       The majority’s social utility model cannot provide a justification

        The next question we must turn to is can the Court’s decision in Brown be reconciled

with Dica and Konzani? As noted by Smith and Hogan, the decisions in Dica and Konzani

may best be viewed as against the trend of post-Brown cases that treat consent even to a risk

of harm as invalid. 55 It is respectfully submitted that the Brown majority’s separate and

potentially competing treatment of consent rests almost entirely on its unconvincing

distinction between ‘sexual’ and ‘violent’ acts, with later cases such as Emmet and Boyea

treated as having ‘sexual overtones’ but being really concerned with ‘violent crime.’56

        Next, as stated by Feldman, the majority’s approach failed to provide a clear moral

foundation and instead allowed the courts to maintan an incoherent list of exceptions based on

its perception of the social utility of a particular conduct. 57 Indeed, “to imply...that carefully


50
   Giles, supra n.11, at 105.
51
   Falsetto(2009):188.
52
   See n. 7 above (judgments of Lord Templeman and Lord Jauncey).
53
   Giles, supra n.11, at 106-109.
54
   id. at 106-107.
55
   Smith and Hogan, supra n.19, at 604.
56
   id.
57
   Feldman (2002): 715-16); see also Clarkson and Keating, supra n.9, at 302.

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controlled, planned, and consensual violence as part of a sexual encounter has no redeeming

social value, but to acept that boxing or ...undisciplined play have social value which justifies

the infliction of bodily harm, turns reality on its head.” 58 In the end, however, this social

utility approach must be rejected because it is hard to see how the interest (whether public or

private) in permitting people to express their sexuality, a form of self-expression, could be

less important than the interest in allowing people to pursue sports for fun.59

        D.       Paternalism and legal moralism

        As noted by Simester and Sullivan, the majority’s judgment reveals two principles

justifying state intervention in matters of sexual preference: legal moralism and paternalism.60

On the one hand, as noted by Bibbings and Alldridge, the majority’s decision in Brown may

be viewed as the triumph of legal moralism.61 Alternatively, as argued by Giles, the triumph

of paternalism over the theory of individual freedom.62 While paternalism advocates the use

of the criminal law to prevent harm to the actor himself or herself, See e.g. R v Coney,63 legal

moralism asserts that it is morally permissible for society to enforce moral standards,

including sexual morals, by the use of the criminal law, irrespective of whether the prohibited

conduct would result in harm to others, or even to the actor himself or herself. 64 See e.g. R v

Donovan. 65 However, as noted by Kell, the intermingling of paternalistic and moralistic

considerations in the majority’s decision perhaps simply masks moralistic values.66

        E.       R v Wilson and consent as a defence in R v Meachen

        As noted by Roberts, the fact that the Court of Appeals felt obliged to go far as it did

in Wilson in taking liberties with their Lordships’ decisions so that common sense can prevail

58
   id.
59
   id.
60
   Simester and Sullivan, supra n.2, at 748.
61
   Clarkson and Keating, supra n.9, at 295 n.108 (citing Bibbings and Alldridge (1993): 356).
62
   n.11 above, at 110.
63
   (1882)8B.D.534(emphasizing serious danger to life/health involved); see also Pallante v Stadiums Pty Ltd,
[1976]V.R. 331.
64
   Kell, supra n.1, at 133.
65
   [1934]2K.B.498.
66
   Kell, supra n.1, at 134.

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demonstrate the serious defect in the criminal law in this area.67 Again, in Meachen a woman

consented to the defendant inserting his finger into her anus leading her to suffer serious anal

injury. On appeal, the appellant’s conviction for inficting grievous bodily harm was quashed

as her injuries had not been intended, her consent could provide a defence.

        As noted by Mackenzie, judicial decisions in this area of the law have rendered the

criminal law of consent incoherent because whether consensual activities occasioning actual

bodily harm should receive protection from criminal prosecution are vulnerable to subjective

interpretation of what constitutes “sound” public policly.68 See e.g., Barnes.69 Thus, it is not

surprising to see the differing treatment of consent in different factual scenarios.

        Finally, having established that the Court’s different treatment of consent in Brown

was not justified, one final factor which must be considered is the widespread unease at the

juxtaposition of sexual activity, pleasure and bodily harm, as evidenced in the judicial

reluctance to accord sadomasochistic practices particularly among same sex partners. 70

Namely, the protections afforded to what is viewed as normal heterosexual sexual expression

is commonly distinguished or denied for homosexual sexual expression.71 On this point, one

need look no further than the judgments of the House of Lords in Brown, the ECtHR in

Laskey, and the judges in subsequent cases such as Wislon, Emmet, Brian H, Keeble, and

Meachen where sadomasochistic practices are characterised as advantage-taking, non-

consensual sexual violence and perverse exploitation.72 As suggested by Mackenzie, this view

rests upon a view of some types of sexuality (heterosexual) as normal and others (same-sex or

sadomasochistic) as abnormal and perverse;73 however, it is respectfully submitted, that this




67
   Roberts(1997):35.
68
   Mackenzie(2008):407.
69
   n.18 supra, (Lord Woolf).
70
   id. at 408.
71
   id.
72
   id.
73
   id.

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point is exactly why a publicy policy approach, as in Brown, must be rejected as in turns an

unelected judiciary in to a law making body.

                                                     V

                                               Conclusion

        While numerous judicial decisions in various jurisdictions74 have held that a governing

majority’s belief that certain sexual behaviour is immoral and unacceptable is sufficient to

override the personal autonomy of individuals, as noted by Falsetto, it should not be the

principal role of the criminal law to reflect the current morality of the majority, or minority

members of the public.75 Consequently, it is respectfully suggested that for the law to restrict

an individual’s right for sexual expression, it should be justified only when such behaviour

harms another, that harm being the theft of the victim’s ability to act freely. 76 See e.g., Dica

and Konzani supra; see also Meachen. On this point, it is respectfully submitted that the

English law’s failure to recognise consent to harm constituting actual bodily harm in the

course of other consensual but violent sexual activity is not justified and is an excessive

intrusion upon an individual’s autonomy.




74
   See e.g., Kennedy v Louisiana, 554 U.S.____(2008)(noting “evolving standards of decency”); and Trop v
Dulles, 356 U.S. 86(1958).
75
   Falsetto, supra n.51, at 189.
76
   id.

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References

Table of Cases

1. Attorney General’s Reference (No. 6 of 1980), [1981] Q.B. 715.

2. HMA v Kelly, unreported, 23rd February 2002 (Scotland).

3. Kennedy v Louisiana, 554 U.S. ____ (2008).

4. Laskey, Jaggard and Brown v United Kingdom, (1997) 24 E.H.R.R. 39.

5. Pallante v Standiums Pty Ltd (No 1), [1976] VR 331.

6. R v Adaye, The Times, January 10, 2004; Guardian, January 13, 2004.

7. R v Barnes (Mark), [2005] 1 W.L.R. 910.

8. R v Boyea, (1992) 156 J.P. 505.

9. R v Brian H, (only Westlaw citation available), 2001 WL 606476.

10. R v Brown (Anthony Joseph), [1994] 1 A.C. 212.

11. R v Coney, (1882) 8 BD 534.

12. R v Cuerrier, [1998] 2 S.C.R. 371.

13. R v Dica, [2004] QB 1257 (CA).

14. R v Donovan, [1934] 2 K.B. 498.

15. R v Emmet, Times, October 15, 1999 (CA).

16. R v Keeble, (only Westlaw citation available), 2001 825706.

17. R v Konzani, [2005] EWCA 706 (CA).

18. R v Meachen, [2006] EWCA 2414 (CA).

19. R v Slingsby, [1995] Crim.L.R. 571.

20. R v Wilson (Alan Thomas), [1996] 2 Cr.App.R. 241 (CA).

21. Trop v Dulles, 356 U.S. 86 (1958).

22. Williams v Pryor, 240 F.3d 944 (2991).




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Statutes

1. Offences Against the Person Act 1861

2. Sexual Offences Act 1967.

Articles

1.       A. Ahsworth, “Principles of Criminal Law,” (3rd edn, OUP: Oxford, 1999).

2.       D. J. Baker, Constitutionalizing the Harm Principle, 27 Crim. Just. Ethics 3 (2008), pp

10-11.

3.       N. Bamforth, ‘Sado-masochism and Consent,’ [1994] Criminal Law Review 661-664.

4.       L. Bibbings and P. Alldridge, ‘Sexual Expression, Body Alteration, and the Defence

of Consent,’ (1993) 20 Journal of Law and Society, 356-370.

5.       C.M.V. Clarkson, H.M. Keating, and S.R. Cunningham, ‘Clarkson and Keating

Criminal Law 7th edn,’

6.       D. Feldman, ‘Civil Liberties and Human Rights in England and Wales 2nd edn’ (2002),

pp. 715-716.

7.       G.P. Fletcher, ‘Rethinking Criminal Law’ (Oxford: OUP,1978), pp. 770-771.

8.       M. Giles, ‘R v Brown: Consensual Harm and the Public Interest,’ The Modern Law

Review, Vol. 57, No. 1 (Jan. 1994), pp. 101-111.

9.       J. Herring, ‘Criminal Law: Text, Cases and Materials’ (OUP: Oxford 2010)

10.      D. Kell, ‘Social Disutility and the Law of Consent,’ Oxford Journal of Legal Studies

Vol 14, No 1 (1994).

11.      R. Leng, ‘Consent and offences against the person: Law Commission Consultation

Paper No. 134,’ Crim. L.R. 1994, Jul, 480-488.

12.      D. Ormerod, ‘Smith and Hogan Criminal Law’ (OUP: Oxford 2008)

13.      P. Roberts, ‘Consent to injury: how far can you go?,’ L.Q.R. 1997, 113(Jan), 27-35.




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14.    S. Ryan, ‘Reckless transmission of HIV: knowledge and culpability,’ Crim. L.R. 2006,

Nov, 981-992.

15.    S. Ryan, ‘Risk-taking, Recklessness and HIV Transmission: Accomodating the Reality

of Sexual Transmission of HIV Within a Justifiable Approach to Criminal Liability,’

Liverpool Law Review (2007) 28:215-247.

16.    A.P. Simester and J.R. Spencer, G.R. Sullivan, G.J. Virgo, ‘Simester and Sullivan’s

Criminal Law Theory and Doctrine,’ Hart Publishing, Oxford (2010)

17.    K.J.M. Smith, “Sexual Etiquette, Public Interest and the Criminal Law,” (1991) 42

Northern Ireland Legal Quarterly, pp. 309-331.

18.    V. Tadros, “Recklessness, Consent and the Tramission of HIV” (2001) 5 Edinburgh

Law Review, pp. 371-380.ü

19.    M. Weait, ‘Knowledge, autonomy and consent: R v Konzani,’ Crim. L.R. 2005, Oct

763-772.




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