Consent in the Criminal Law
Part X of the British Law Commission’s 2nd document No 139 1995
THE INFLICTION OF INJURY BY CONSENT FOR THE PURPOSE OF CAUSING PAIN
THE CAUSIN OF PAIN FOR RELIGIOUS OR SPIRITUAL PURPOSES
The courts have treated the practice of flagellation in the Christian church as a lawful activity. In the first Consultation Paper (No 134, paras 11.21-11.22) we quoted this dictum of Lord MacKenzie, a Scottish judge, in 1847: (In “William Fraser” 1847 Ark 280, 302)
In some cases, a beating may be consented to as in the case of a father confessor ordering flagellation; but this is not violence or assault, because there is consent.
In the very early Christian church flagellation was used as a punishment for disobedient clergy. (See the New Encyclopaedia Britannica, Vol 4, Micropaedia, p 813.) From the fourth century AD, flagellation was practised by both clergy and laity as the most efficacious means of penance. In the early Middle Ages the laity became especially attracted by this devotional exercise. For a hundred years groups of flagellant brotherhoods and processions of flagellants were organised in Italy, Germany and the Low Countries.
In the 14th century these people came to be seeking by their own efforts to mitigate the divine judgement for the moral corruption of the church which was felt to be impending through the plague. In 1349 Pope Clement VI condemned flagellation, as did the Council of Constance (1414 – 1418). In Germany flagellants became a target of the Inquisition.
The practice gradually subsides, but in the 16th century the Jesuits revived lay interest in self-inflicted flagellation, particularly in the countries of southern Europe. Under their guidance flagellant brotherhoods were introduced into Latin America.
The purpose of flagellation is to mortify the body in order to subordinate the passions to the spirit. It is an activity now mainly associated with countries like Mexico and some of the southwestern states of the United States which have a strongly Hispanic Roman Christian tradition.
The practice exists in Britain in the religious group known as Opus Dei, and it is also sometimes used among the Cistercians. The penitentials describe practices like mortification and flagellation and specify the permissible limits.
It is accepted by some Christians that pain may be accepted as penance for one’s own sins and also for the sins of others.
Flagellation is sometimes practised only in Lent. One respondent told us that he was educated at Catolic schools by nuns and lay-brothers who practised flagellation for spiritual motives.
We received moving evidence from a woman in one of the learned professions. She is on the liberal edge of the Roman Catholic Church and was catechised in the pre-Vatican II church. She takes her religion seriously. It forms an integral part of her life and goes to the core of who she is as a person. It is deeply ingrained in her to examine her conduct against the ideals she is trying to live up to, and to think in terms of doing penance for sin when she finds her conduct wanting.
For many years she has occasionally found self-mortification the appropriate penance, if she has behaved in a way that falls gravely short of what a committed Christian faith involves. She makes a measured calculation as to what is appropriate, in terms of a limited number of strokes, and applies a very ordinary leather belt to her back. Now that she is married, her husband helps her. He inflicts an adequate level of pain to ensure that the punishment is full and effective. As she put it, the threshold for “actual bodily harm” is clearly exceeded. There is no hostility, anger or animus involved and no serious or permanent injury is done. Her husband’s attitude is that what he is doing is something morally positive – “digging you out of a hole” – which, he believes, cannot surely be contrary to the criminal law.
In Hinduism, some ascetics believe that the acceptance of pain, which is often extreme and caused by seriously injury, is one of the ways to obtain the desired union with the absolute.
In certain branches of Zen Buddhism activities like running marathons of extreme length or standing under icy waterfalls are considered to be acceptable ways of meditation.
In some Amerind faiths it is believed that by accepting extreme pain and discomfort (and sometimes hideous torture) it is possible to obtain supernatural powers. People other than the receiver of pain are needed to assist the receiver in almost all these different cases.
This evidence was given in the context of a very thoughtful submission we received from one respondent about the infliction of pain. He suggested that five reasons are commonly given for a person to desire pain: bravado; acceptance as an adult or as a spiritual member of a community; the heightening of sexual pleasure; the removal of feelings of guilt; and, if used correctly, assisting the receiver either to travel a path to salvation or to obtain a transcendental experience of the type for which descriptions like spiritual joy, ecstasy, mental calm and peace have been used. He said that these could be described compendiously as “spiritual joy”. He felt that genuine and wholehearted consent should be permitted as a valid defence to a charge of intentionally or recklessly causing injury, not only in cases of flagellation and religious mortification in a traditional Christian context, but in all cases where the purpose of the injury is to give pain that will enable the victim to do one or more of the following things: obtaining relief from feelings of guilt and/or anxiety; mortifying the body in order to subordinate the passions to the spirit or to obtain union with the absolute; and/or obtaining, by a process akin to meditation, a transcendental religious experience of the type described above as spiritual joy.
He compared the practice of meditation, as conventionally practised, with the practice of sado-masochistic meditation. A modern definition of sado-masochism, he said, covers activities between consenting, caring participants who are involved in the giving and receiving of pleasure by playing the roles of dominant and/or submissive, possibly with the involvement of one or more of the additional features of stimulation, pain or bondage.
In meditation, the meditator finds a teacher or guru to whom he or she willingly submits, and a location where he or she will not be disturbed and may sit in a position that can be held for a long period of time. If sitting, the meditator concentrates his or her mind on a single subject which may, for example, be breath, a candle flame, a word or a physical object. When the mind has been concentrated long enough, a trance state may ensue during which he or she obtains spiritual joy. On waking these benefits remain.
In sado-masochistic meditation and other related practices, the practitioner will willingly submit to a master in order to avoid the dangerous, and sometimes fatal, practice of self-inflicted pain. This submission is, however, mental rather than practical because the practitioner usually keeps full control over the location, form and duration of what happens, even when this involves pain. He or she may be restricted as to movement and thought, and the effect of the ritual and the pain, if pain is involved, will be to concentrate the mind on a single subject. The effect is the same as is described above: the development of a trance state, and the obtaining of spiritual joy, and on waking these benefits will remain.
He said that the reasons why anybody should wish to or be willing to give pain to another include altruism, giving a victim what he or she desires, obtaining vicarious pleasure from the pain obtained by the victim, and the wish to pass on an art which has given the giver pleasure in the past. In his opinion, the suggestion made by some judges that a person who enjoys giving pleasure to a consenting partner is a sadist who enjoys seeing other giving in pain is scarcely sustainable. A sadist, in old-fashioned parlance, is unlikely to find satisfaction with a victim who enjoys pain or discomfort. He or she is more likely to use other outlets for his or her sadism.
This respondant submitted that the similarities between meditation and sado-masochistic meditation were so great that it would be illogical to deny that receiving pain for the purpose of obtaining spiritual joy is in effect a way of meditating. It should therefore be considered to be a valid religious activity, and not against the public interest, when its benefits are taken into account. Such injury as may be needed to cause the requisite pain is seldom serious, since the aim is not to cause injury but to produce spiritual joy or to remove guilt.
His evidence provides a link between the types of activity involving the deliberate infliction of pain on a consensual basis which have been treated as non-criminal by English law and those types of activity, now treated as criminal, which formed a substantial part of the evidence we received. He said that it was quite possible, in the context of sado-masochistic meditation, that either the victim or the person giving pain might feel sexual excitement. He said that this was scarcely surprising. Sexual congress, under strict and formal conditions, has been used as a form of meditation in the Tantric school of Hinduism, and unsought sexual excitement is also known to be associated with some of the common forms of meditation, as well as with such mundane activities as eating, drinking, wearing certain clothes and taking exercise. He added that it has also been claimed that sexual excitement accompanied the visions of certain Christian saints, including St Teresa.
Similar evidence was given by the respondent who had been taught at schools by those who practised flagellation from spiritual motives. (See para 10.4 above). He said that he personally had a psychological preference for masochism, and that his own activity produced similar feelings, although his sexuality is involved in a vague emotional way. He had no inclination towards sadism in any way.