Homophobia, 'Increasing Barbarity' and 'Perverted' Desires: Why Brown Has no Place in Governing Consent to Non-fatal Offences Against the Person
| Author | Lily McDermaid |
| Position | LLB with Psychology (Soton) |
| Pages | 58-65 |
S.S.L.R
Vol.10
58
Homophobia, ‘Increasing Barbarity’ and ‘Perverted’ Desires:
1
Why Brown
Has no Place in Governing Consent to Non-fatal Offences Against the
Person
Lily McDermaid*
Abstract
This article discusses the relevance of Brown [1994] 1 AC 212 in today’s society, a quarter of a century after the
House of Lords decision. It will be argued that the decision was wrongly decided on its facts but had previously
uncontemplated consequences that may have benefited different sections of society. Similar cases from the
subsequent 26 years are also discussed in order to track the development of the law and any changes in precedent.
Slingsby in particular highlights a difference in judicial opinion when a case involved a heterosexual couple as
opposed to homosexual men, even where the result was death. This article concludes that underlying prejudices
and misunderstandings led to a disproportionate punishment for private sexual activity among homosexual men
compared to heterosexual couples.
Introduction
rown involved the prosecution of a group of homosexual men with multiple counts
of grievous bodily harm and actual bodily harm, under s 20 and s 47 of the Offences
Against the Person Act 1861 respectively.
2
The defendants were charged after police
discovered video footage of their entirely consensual sadomasochistic activities. These videos
had not been recorded for dissemination to the public as they were only for members of the
group that were absent. A key issue in court was whether a person’s consent to such activities
made their conduct lawful or provided a defence to charges. The trial judge ruled that the
prosecution did not need to prove the victims lacked consent. They appealed against their
convictions on the basis that the prosecution could not fully prove actual bodily harm or
grievous bodily harm where the victims consented, although this was dismissed by the Court
of Appeal. The appellants ultimately appealed to the House of Lords. The Law Lords dismissed
their appeal in a 3-2 decision, with Lord Templeman, Lord Jauncey and Lord Lowry forming
the majority. This paper argues that the Brown decision should not be used to govern consent
in non-fatal offences against the person as it was wrongly charged under the Offences Against
the Person Act 1861 and has caused confusion and conflicting decisions since.
* LLB with Psychology (Soton).
1 R v Brown (1994) 1 AC 212 (HL) 235, 242.
2
ibid.
B
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