THE BORDERLINE BETWEEN SEX AND VIOLENCE
Professor David Feldman provided us with a thoughtful analysis of society’s differing responses to activities which are regarded as sexual as opposed to those which are regarded as violent. If an activity is classified as sexual, pleasure from it is not regarded as evil, even if it is accompanied by pain, and it is therefore, he considers, permissible to allow consent to be a defence. Interests at stake include the satisfaction of natural cravings, the expression of one’s sexual identity, and the right not to be exploited as an unwilling means to someone else’s end. The need for consent allows those who do not want to participate to say “no”, and the greater freedom to consent allows people to enjoy sexual encounters to which they feel drawn. These rules spring from an assumption that sex is, in general, not a bad thing.
If, on the other hand, an activity is classified as violent, pleasure from it is regarded as evil, and the act of inflicting it is treated as cruel and uncivilised. It is for moral reasons, in order to protect standards of public decency, that courts will not permit people to take part in such acts of cruelty, unless no significant bodily harm results to the victim. Violence is not in itself usually seen as a good thing, although there may be contexts in which physical violence is regarded as socially acceptable (for example, in rugby football, boxing, rough play among children, or the lawful correction of children).
Most people, he suggested, instinctively share Lord Templeman’s view in “Brown” that society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is seen as en evil thing and cruelty is uncivilised.
Whether consent should be permitted depends, therefore, on whether an activity is classified as sex or violence. This classification will affect the relative weight to be given to the competing considerations of public policy and individual rights. The speeches of Lord Templeman* and Lord Mustill** in “Brown” illustrate the importance of the difference in approach.
* 1 AC 212, 235: “In my opinion sado-masochism is not concerned with sex. Sado-masochism is also concerned with violence.” Cf Lord Lowry, who said that any sexual desire involved in the case was perverted or depraved. Ibid, at p 225.
** 1 AC 212, 256: “In my opinion [this case] should be a case about the criminal law of private sexual relations, if about anything at all.”
Professor Feldman expressed the opinion that to classify sado-masochism as being about violence, and therefore as having no redeeming social value, but to accept that boxing or rough and undisiplined play do have social value, is to turn reality on its head. In his view the interest (whether public or private) in allowing people to express their sexuality, which forms a fundamental part of a person’s personality, is no less important than the interest in allowing people to pursue sports. Sport is fun, but sex for many people is more than fun: it is a form of selfexpression.
For many people, he said, violence and sex are not separate. There are overwhelming reasons for preventing people from making others the unwilling vehicles of their sexual gratification, but there is no more – and arguably, in his opinion, less – reason for preventing people from consenting to bodily harm in the pursuit of sexual pleasure than there is for preventing people from consenting to it in the pursuit of sporting pleasure.
Another academic respondent* said that equating sado-masochism with violence loses sight of the activity’s social meaning for those who participate in it. Although sado-masochism necessarily involves the commission of violence towards, or the humiliation of, the party assuming a masochist role, this is as a necessary element in the participants’ sexual experience. Although to the outsider what is going on may appear to be no different from casual or malevolent violence, for sado-masochists it is a meaningful part of sexual activity. Sosial meanings should normally be assessed from the standpoint of the participants in an activity, particularly within the field of sexual activity, given the social sensitivity surrounding the area and the sheer range of activities which possess sexual meanings for different people. It follows, in his opinion, that the policy criteria covering the law’s approach to sado-masochism should be those relating to sex rather than those relating to violence.
*N Bamforth. His main response, “Sado-Masochism and Consent”, was published in  Crim LR 661.
We were reminded that Professor Hart, in his defence of the Wolfenden Committee’s proposals, observed that laws restricting (consenting) sexual behaviour “may create misery of quite special degree. For both the difficulties involved in the repression of sexual impulses and the consequences of repression are quite different from “ordinary” crime.” Sexual impulses, Professor Hart observed, form a strong part of each person’s day to day life, so that their suppression can effect “the development or balance of the individual’s emotional life, happiness and personality.” (H L A Hart, Law, Liberty and Morality (1963) p 22).
Another academic respondent, who was among those who persuaded us to extend our study to embrace sexual offences, gave as one of her two reasons the consideration that it is sometimes difficult to divorce sexual from non-sexual violence. * She said that rape is not necessarily to do with sex, but to do with violence. It is not what most would recognise as part of a normal sexual relationship (whether hetero- or homo-sexual): instead, it is an act in the exercise of power, and therefore an act of violence. She added that we should not lose sight of the possibility that, in spite of the majority decision in “Brown”, private sexual acts might have a perfectly legitimate violent element. In other words, there may be situations where an act, although including elements of both sex and violence, can be thought of as predominantly violent or predominantly sexual, and if it is the latter it should not be assumed that it is a situation which comes automatically into the ambit of the criminal law.
*Her other reason was that at least one of the statutory sexual offences includes lack of consent as part of the offence, and it might therefore afford guidance in considering the defence in situations of non-sexual violence involving more than trivial harm.
The SPTL (Society of Public Teachers of Law), more briefly, submitted that the divide between sexual offences and offences of violence was not clear, and it was essential that there should be consistency in the meaning of consent in each area. “Assault merges into indecent assault, which merges into attempted rape and rape.” A number of women’s organisations stressed that the issue of consent was central. Feminists against Censorship (“Consensual acts are no business of the state”) and the English Collective of Prostitutes (“Consent must always be the issue regardless of the extent of the injury”) both emphasised this in their responses, and another woman’s group, without referring to sado-masochistic sex, said that “consenting sex should not be the business of the law”, while urging us most strongly to review the law of consent in the context of sexual offences.
LAW REFORM PROPOSALS
We envisage that appropriate protection will be given to the activities described in this Part, insofar as they would otherwise amount to offences against the person, by the terms of the provisional proposals we have made at the end of Part IV above. The circumstances in which such acts should be permitted is a matter for legislation relating to public morality and decency, (See Part XV below) and not for the present project, which is concerned solely with the question whether such acts should in themselves constitute criminal offences even if a valid consent is given to them. In other words, nobody may give a valid consent to seriously disabling injury, but subject to this limitation the law ought not to prevent people from consenting to injuries caused for religious or sexual purposes. We see no value in circumscribing the law by reference to any specific limitation of purpose.* This proposed policy is consistent with the third, fourth and sixth principles in our suggested law reform strategy.**
*Such a limitation would lead to an investigation of the type of issues discussed in paras 10.42 – 10.51 above, which criminal courts are not well qualified to conduct, and to consequent uncertainty about how the law would be applied in practice.
**See para 2.18 above. Our strategy recognises people’s entitlement to make choice for themselves but also (i) takes into account the interests identified in para 2.18(3) above: (ii) takes the view that to be seriously disabled is against a person’s interests so that someone who consents to seriously disabling injury has made a mistake; and (iii) acknowledges that in the absence of effective regulations we cannot be sure that consent to seriously disabling injury will be entirely voluntary.
In paragraph 9.24 above we asked whether the age-limit of 18 should be retained to tattooing, and whether any similar (and if so, what) age limit should be introduced in relation to a young person’s ability to give a valid consent to (a) piercing below the neck, (b) branding or (c) scarification, when performed for cosmetic or cultural purposes. What falls for consideration in the present context is whether statute should set some minimum age below which the causing of injury for sexual, religious or spiritual purposes should remain unlawful even if a consent is given by a young person who would otherwise be treated as having the capasity to give a valid consent. (See para 5.21 below). Parliament has very recently decided that at the present time 18 is the appropriate age below which participation in anal intercourse should not be lawful, even with consent, and as a law reform body we provisionally consider that we should be guided by Parliament’s very recent judgment on the appropriate age for consent when deciding whether to recommend decriminalising activities performed for purposes of sexual gratification which were previously proscribed by the criminal law.
For the present consultation process we propose that the same age limit should apply to activities involving the infliction of pain-creating injury for the purposes of religious mortification or for spiritual motives as to similar activities for the purposes of sexual gratification, and we would be interested to hear from any respondent who believes that a different age limit should apply in the case, and if so why. In making these two proposals we are giving effect to the second principle contained in our suggested law reform strategy.*
* See para 2.18 below. We are referring to the principle that in certain circumstances, to be determined on a case by case basis, the state should be entitled to determine that there is an age below which no consent should be valid.
Injuries intentionally caused for sexual, religious or spiritual purposes
We therefore provisionally propose that for the purpose of the proposals contained in paragraph 4.49 and 4.50 of this Paper any consent given by a person under 18 to injuries intentionally caused for sexual, religious or spiritual* purposes should not be treated as valid consent.**
*We will be interested to know whether it would be necessary to make an exception in relation to the causing of injury for such purposes in the course of proper medical treatment (Part VIII).
**Subject always to the possibility of a defence being available if any of our suggestions in para 7.34 above are eventually adopted.