Operation Spanner - Trial and Conflicting Arguments

Trial and Conflicting Arguments

Heavily influenced by the nineteenth century boxing case of R v Coney, the trial judge ruled that consent was not a valid defence to actual bodily harm, and the defendants pleaded guilty. The case was appealed first to the High Court, then to the House of Lords. In March 1993, the appeal was dismissed by 3–2 majority of the Lords, with Lord Templeman in particular declaring that the reasoning for his decision was:

"In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sadomasochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sadomasochistic encounters which breed and glorify cruelty . Society 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 uncivilized."

However, upon comparing this judgement to similar court cases involving heterosexual couples or others whose cruel and sadistic actions resulted in intentional or reckless infliction of injuries with the alleged victim's consent, some legal experts and advocacy groups have noted why they consider the R v Brown judgement to be an example of homophobia in the English legal system, a legislature which allows judges to legislate from the bench using unequal and arbitrary applications of the law, and "paternalism" which intrudes on liberty.

For example, the R. v Wilson (1996) judgement ruled that an intentional act of human branding between heterosexuals which caused pain and permanent bodily harm (a scar) was a non-criminal act, on grounds of the alleged victim's consent; branding was one of the very same acts presented as evidence against the homosexuals in R. v Brown (as well as evidence of homosexual acts "even where no lasting harm or disability was caused"). R. v Wilson was decided after R. v Brown, but it remains unclear whether R. v Wilson or R. v Emmett might be used by the judiciary to constitute newer precedents for sadomasochistic acts between lovers. In R. v Jones (1987) and R. v Atkin & Others (1992), rough horseplay for no purpose besides enjoyment of sadistically taunting others to the point of injuring them was deemed non-criminal (even in cases where the victim has not consented, so long as the accused honestly but not reasonably believed the victim to have consented (DPP v Morgan 1976)). In the case most cited, the 1995 manslaughter case of R. v Slingsby, consent was considered a valid defence, when a man wore a signet ring as he engaged in the act of inserting his entire fist into his sexual partner's vagina and anus, which may cause pleasurable pain (algolagnia) for some women, as the homosexuals in the R. v Brown case were also acknowledged to be seeking sexual pleasure using painful acts (algolagnia); however, in R. v Slingsby, the injury only became a fatal one by accident, with the prosecutor contending recklessness (Safety advice which is commonly available from some of the Internet's more notable websites include advisories that, during fisting, sharp objects even smaller than a signet ring should be avoided as one should even "make sure his nails are clean, short, and not sharp," or "First of all, cut and file all your nails until every finger is as smooth as it could possibly be").

R. v Brown also differs from the heterosexual cases of Wilson, Slingsby, and Emmett in that even recipients of injuries in R. v Brown were convicted of "aiding and abetting," for the crime of consenting to their own injuries, yet none of the women who remained alive in the heterosexual cases were even arrested for their decision to consent.

Marianne Giles, author of Criminal Law in a Nutshell, called it "Paternalism of an unelected, unrepresentative group who use but fail to acknowledge that power," as the House of Lords failed to establish a precise guide for the United Kingdom's courts to consistently decide where a defence of consent should succeed or where it should not, and as Roger Geary argues in Understanding Criminal Law, this lack of a precise guide gives rise to legislating from the bench or other kritocracy, and laws being applied unequally to homosexuals or others whose practices are in the minority where pain is inflicted with consent, even potentially body art such as tattooing. Some body art professionals worry that UK judges can interpret their practices as illegal, determining which consensual acts are too extreme and constitute assault, on a case-by-case basis, with no way of the practitioner knowing beforehand.