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R v Brown [1993]

Facts

  • The defendants engaged themselves in sadomasochistic acts resulting in the infliction of actual (ABH) and grievous bodily harm (GBH)
  • Although none of the participants in the encounter reported anything to the police, the Crown Prosecution Service acted upon a video of the encounter

Issue

  • Could ABH and GBH be consented to in sexual acts where both pleasure and pain were simultaneous inflicted?

Decision

  • No

Reasoning

  • By a majority of 3:2, the acts were said to be unlawful
  • Opinion: the judgment appears to be based on moral opinions of the judges
  • Lord Mustil (minority) dissented as the majority had not correctly applied sections 20 and 47 of the Offences Against the Person Act 1861
  • Battery can be consented to
  • ABH can sometimes be consented to if there are public policy considerations in favour of such consent (for example in organised boxing matches)
  • Sadomasochistic acts casing ABH do not fall into the category of acts permitted by public policy
  • GBH cannot be consented to
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