R v Brown – twenty four years on, a critical secular perspective (part 2)

Handcuffs

In his second and concluding article about the notorious case of R v Brown, LSS member Dr. Peter Bowen-Walker makes the case for a secular legal system.


In Part 1 the attention of the reader was drawn to comments made recently by the Lord Chief Justice, Lord Thomas, who opined that the courts were largely secular in nature and that where in the past judges had allowed religion to influence their reasoning they may have “[got] themselves into difficulties”.

This concluding article argues that the controversial judgment in R v Brown [1] can be better understood if it is viewed as one of those judgments where unconscious religious bias clouded the normally objective and rational views of respected judges.

Viewed from a secular perspective, the intemperate moralistic and paternalistic language, the comments on seemingly irrelevant but emotive matters (such as bestiality), the clearly expressed indignation and disgust of their Lordships, and the unjustifiable catastrophising (despite lack of evidence), can all arguably be explained by the culture-shock experienced by these “establishment” men when their “establishment” morality was offended.

When the socio-cultural milieu of these judges is considered, it is evident that religion, and in particular the Anglican religion (with its homophobia and arguably irrational views on sex) played a role, and still does play a role, in the day to day lives of judges and the courts despite recent pronouncements to the contrary.

It will not be argued that their Lordships were explicitly homophobic or biased, but since the decision in R v Brown eventually came to be decided as a matter of public policy and on what was “in the public interest” rather than through an interpretation of the black letter law, then what “maketh the man” (the underlying values and unconscious biases) matters.

It will be argued that when it comes to matters of public policy and what is “in the public interest”, judges should respectfully adhere to a basic principle of the rule of law, and not their seemingly religiously-inspired instincts, namely they should find in favour of the defendant not the Prosecution and therefore not criminalise people where there is an unsettled point of law. It is clear in the case of R v Brown that their Lordships were on the cusp of making such a libertarian-inspired decision but – by a narrow margin – I will respectfully argue that their fear, prejudice and irrationality got the better of them and that three of the five judges resorted to making a moralistic judgment. Where did this prejudice come from? From a secular perspective it could be argued it came from the omnipresence of the State religion in the lives of our “establishment” figures and in the day to day workings of our courts.

To recap Part 1

R v Brown was a case which appeared before the House of Lords in 1993 in which a number of gay men were found guilty of causing ABH during sadomasochistic (SM) sexual activity.

The activity had in fact been ongoing for more than ten years and the participants had “positively wanted, asked for, the acts to be done to them” [2], and all had consented to being involved.

No complaint was ever made to the police, who only became interested because of unrelated enquiries which drew the SM activities to their attention.

The video material seized by the police documenting the SM activity was originally interpreted by them as “snuff” videos depicting the murder of individuals during the course of sexual violence [3]. It is now known that this was incorrect, but in fairness, this was clearly an understandable early consideration which of course justified further investigation.

However, the enquiry went on to cost an estimated £4 million [4] and some critics have argued that this expenditure may account for the determination (and possibly creativity) of the authorities to proceed with the prosecution, to save face and justify the cost. Support for the veracity of this claim can even be found in several passages from the judgment itself which questions as “adventitious” the use of the Offences Against the Person Act 1861 (OAPA) as a “statute…clearly intended to penalise conduct of a quite different nature” [5], [6], [7].

The men were found guilty at first instance of various offences (mainly ABH). The verdicts were upheld on appeal, but the sentences were reduced [8].

The main question certified for consideration by their Lordships was whether the fact that all the participants had consented to taking part in the SM activities provided a defence against the charges of ABH.

The answer was a 3:2 “no”; a close call which ossified the law and which has been widely criticized for what was perceived to be hetero-normative bias (or to be more forthright, homophobic bias). Since then, the judgment has been criticized further because of the other unintended and unforeseen consequences it has had.

When the case was appealed in the European Court of Justice, the charge that the judgments had been motivated by homophobia was dismissed [9]. The European judges held the convictions were safe and within the wide margin of discretion available to a member state to protect health or morals.

Nevertheless, the language used by their Lordships indicated, if not direct homophobia, then possibly indirect homophobia, and at the very least a deep seated “discomfort” with the lifestyles of the defendants and the material they were asked to consider in the course of their judgment.

Indeed, in a commentary on this judgment, Carl Stychin concluded the law “pathologises gay male sexuality” [10]. Examples of the language which revealed the shock and resulting moralising include the following:

Lord Templeman: SM is “degrading to body and mind”; “society is entitled and bound to protect itself against a cult of violence”

Lord Jauncey: “rather curious activities”

Lord Lowry: “[SM’s function is] to satisfy a perverted and depraved sexual desire. SM homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. A relaxation of [the law] can only encourage the practice of homosexual SM, with the physical cruelty that it must involve (and which can scarcely be regarded as a ‘manly diversion’)…”

Lord Mustill: “It is sufficient to say that whatever the outside might feel about the subject matter of the prosecution — perhaps horror, amazement or incomprehension, perhaps sadness — very few could read even a summary of the other activities without disgust”; “If repugnance to general public sentiments of morality and propriety were the test, one would have expected proceedings in respect of the most disgusting conduct to be prosecuted with the greater vigour”; “Thus, whilst acknowledging that very many people, if asked whether the appellants’ conduct was wrong, would reply ‘Yes, repulsively wrong’.”; “Leaving aside repugnance and moral objection, both of which are entirely natural…”

Lord Slynn: “Nor is it necessary to refer to other facts which are mentioned in the papers before the House which can only add to one’s feeling of revulsion and bewilderment…”

According to evidence gathered by the Law Commission [11], the consequence of the R v Brown judgment has been inter alia to lead to uncertainty concerning the law in this area, with many respondents indicating their surprise that some SM activities are illegal.

It was contended that the oppressive effect of the judgment had also led to at least one death [12] and that it stigmatizes and vilifies the not insignificant numbers of SM practitioners. Whilst it is difficult to obtain statistics for the precise numbers of people who engage in SM, studies have indicated that between 5 and 22% of the population [13] may be involved to some extent (including members of the judiciary [14] and some well-known individuals [15]). Another concern expressed was that it exposed people to the risk of blackmail [16].

Furthermore, the law as it currently stands was believed to have led to the hindering of police investigations [17] because potential witnesses are reluctant to come forward.

Evidence was also given to the Commission that the current law might endanger the safety of SM practitioners because many felt unable to access information and to educate themselves of the dangers due to the stigma or risk of prosecution, and were compelled to turn to practicing risky activities unaccompanied [18], [19].

Other evidence suggested that on the rare occasion medical assistance might be required, people could be deterred from seeking help.

In addition, evidence was given that the current law was in fact given a “low priority” for enforcement by the police [20], but has it attained the position of being a “dead letter”?

This latter question is perhaps partly answered in the affirmative by the outcome of the recent case of R v Lock [21], in which a man was found not guilty by a jury after “contracting” with a woman to engage in SM activity which resulted in her suffering ABH. Of course, being found not guilty is not the same as the activity itself being lawful according to the letter of the law.

So despite the “public policy” reasons cited in the judgment, the benefits to the public at large do not appear to have been realised. Indeed, it could be argued that very significant problems and undesirable consequences have resulted as a direct consequence of the way the law fell to be decided in R v Brown.

The general position

Provided no harm is caused, SM activity in private between consenting adults is not unlawful.

The law concerning the application of unlawful but non-fatal force against a person arguably falls along an inelegant continuum. The law in this area comes from several acts and common law principles, the most significant one being the OAPA which has been widely criticized (including in R v Brown) as difficult to interpret and as “piece-meal legislation”, and covering a “rag-bag of offences” [22].

The spectrum begins at one end with an offence arising from the mere reasonable apprehension of the deployment of unlawful force; then, to the actual infliction of force resulting in no harm; then, to the use of force resulting in some harm (which can be a mere mark, or bruise (ABH)); and finally, to force resulting in serious harm (GBH). A person performing any of these acts is committing an offence, and the law rightly protects citizens from such unwelcome intrusions and harms.

Yet, if the law were to be left at that, many desirable and indeed vital activities would be rendered unlawful, such as surgery or hair-cutting. So the law has developed a number of mechanisms to widen the ambit of activities involving the application of force by one person against another, to remove the constraint of the starting point and to enable them to proceed in the public interest. Consequently, the law identifies a number of “exceptions” to the general rule which permit, with the valid and informed consent of the person, that physical force can be applied against them lawfully.

The activities included within the “exceptions” list are there because of the workings of public policy: the activities are considered to be of benefit, or in the public interest. The activities include some predictable ones but also some rather surprising ones:

  • Boxing and martial arts [23]
  • Religious flagellation (whipping/flogging) or mortification [24]
  • Tattooing and even branding one’s wife’s buttocks with one’s initials using a hot knife (deemed to be of the same species of action, see R v Wilson [25])
  • Ritual male genital mutilation (circumcision)
  • Heterosexual sado-masochism causing harm of a trivial and trifling nature (provided it is not long lasting) within the context of a marriage
  • Ear/eyelid/lip/genital piercing, provided it is for decorative purposes and not sexual gratification [26]
  • Having a haircut [27]
  • Surgical intervention (such as amputation, mastectomy, etc.) [28]

In addition to the defence of consent being available for the above activities, consent can also be given as a valid defence to “running the risk” of being harmed in the following circumstances:

  • Consenting to the risk of contracting a potentially fatal sexually transmitted disease (such as HIV) during intercourse [29], [30]
  • Consenting to the risk of injury during potentially dangerous contact sports [31]
  • Consenting to the risk of serious injury during potentially dangerous “manly diversions” and rough horseplay – the “belief” that consent was given is enough (it doesn’t even need to be a reasonable belief: just an “honestly held” belief is sufficient [32], [33])
  • Consenting to the risk of injury during dangerous exhibitionism (driving a motorbike through flames, knife-throwing displays and team acrobatics, etc.) [34]

So the law is construed so as to attempt to protect people from being subjected to unlawful physical interventions and assaults, but it is flexible enough to accommodate activities and actions which society might deem necessary or desirable. The list of “exceptions” is not a closed list and judges are at liberty within the constraints of the doctrine of precedence to widen the list.

It was precisely this – a request to include consensual homosexual sado-masochistic sex within the list of “exceptions” – to which the defence of informed consent by sui juris adults could be deployed in the event of harm that R v Brown was concerned with.

When the lists above are considered (together with the rule of law principle not to criminalise where the law is unclear), it may therefore seem surprising that their Lordships refused to invent a “consent” defence for homosexual sado-masochistic sex. This is especially so, given the warning by Lord Devlin who stated “…a law that appears to be arbitrary and illogical, in the end and after the wave of moral indignation that has put it on the statute book subsides, forfeits respect.” [35]

Surprising that is, until the personal biases (informed by prevailing social context) are recognised and considered.

Criticisms of the judgment in R v Brown

The judgment in R v Brown has been widely analyzed, and it is fair to say it has been widely criticized. One criticism made of the prevailing judgment was that the bar for the availability of the defence afforded by valid consent in the context of homosexual SM was set at too low a level (below ABH), which rendered the defence of consent unavailable to the defendants in this case.

Another criticism made was that the judgment was too moralistic and that it was informed by underlying homophobic or hetero-normative values held by the judges. One commentator waspishly stated the outcome of the case was as a result of the acts being contrary to Lord Templeman’s personal morality, not the law of England and Wales[36]. Another blog opined that the judgment was “unpleasant” and followed a homophobic “witch-hunt” pursued by the police [37].

A third criticism is that because of the way all common law develops, the area of law surrounding consent is something of an illogical and disconnected mess requiring reform. Their Lordships themselves pointed out that the appropriate authority for such a task was Parliament and not the judiciary. Looking at the disconnected and seemingly ad hoc list of exceptions, it is easy to understand the court expressing this reservation.

Both the Law Commission and the Government in 1998 published proposals to reform the OAPA. The Law Commission’s suggestion would have seen consent become available as a defence in cases of SM provided the harm was not “serious”. However, sixteen years or so later nothing has been done. Clearly the Government lacks the will or the courage to change the law, despite it being generally held to be confusing, lacking in coherence and causing a number of serious and undesirable consequences.

What factors influenced the reasoning of their Lordships? Do they keep the common law relevant today?

1. Homosexual SM was to be viewed as a form of violence where harm was intended or caused, and not as a sexual matter.

This contrasted with the availability of the defence to married heterosexuals if one of them inflicted ABH on the other (e.g. when branding a wife’s buttocks with a hot knife), which was held to be a private matter and as such, prosecution was not in the public interest [38]. Notwithstanding, consent would fail as a defence even in a heterosexual SM encounter which led to ABH if the activity itself was illegal (see R v Donovan [39], which involved the defendant spanking a 17-year old girl for sexual gratification), or if the harm was serious [40].

This position has been widely criticised for failing to understand the meanings ascribed by participants of SM activity as intrinsically a form of sexual expression and not violence [41], [42]. This further highlights the general criticism leveled at the judiciary in general that their incredulity and incomprehension stemmed from their being drawn from a certain narrow socio-cultural (or religious) mindset class, and being “out of touch”.

2. The proposition that SM was “essential to the happiness” of some people was denied by their Lordships because no evidence to support this was adduced (although a report available to the judges produced in 1963 by Prof. Hart in response to the Wolfenden Committee proposal had stated that laws restricting sexual behaviour “may create misery of quite special degree” because sexual impulses formed such a strong part of each person’s day to day life that their suppression could affect “the development of the individual’s emotional life, happiness and personality” [43].

At the time of the judgment SM was classified by psychiatric experts as a “paraphilia” (atypical sexual disorders considered a form of mental health problem) [44], whereas today this is only the case if the person is distressed about their atypical sexual interest or if they can only derive pleasure from another person’s distress or suffering [45].

Modern scientific thinking is understandably anxious to separate genuine mental disorders of a sexual nature from violent sexual acts which are better described as rape etc, and which should not be given the cover of a mental health diagnosis [46]. Were the judges influenced by the prevailing psychiatric thinking (despite their Lordships’ lamenting, unlike Parliament they had no access to external experts and reports etc)?

3. Homosexual SM posed a “proselytisation” danger to young men and could lead to their “corruption”.

In relation to this point, the appeal court judgment noted that one of the participants, “K”, had moved from the homosexual SM scene to “settle into a normal heterosexual relationship”. However, beyond that comment, the judgment seems to descend into an exercise of “catastrophising” which was then used as a reason to justify taking a paternalistic preventative approach by refusing the defence of consent.

This can also be seen in relation to their Lordships’ concerns about the perceived difficulty of “foretell[ing] the degree of bodily harm which [could] result” during SM encounters. Homosexual SM activities were also said to carry with them “obvious dangers of serious personal injury and blood infections”, with HIV/AIDS being specifically mentioned.

Given the widespread fear in the 80s and 90s of HIV, and given the prevalent homophobia [47], (the infamous Clause 28 was passed in 1987 [48]), it is little wonder that these matters would have been uppermost in the minds of their Lordships. But it has since been held, in a heterosexual context, that a person can consent to running the risk of contracting a fatal sexually transmitted infection [49]. Moreover, for this reasoning to stand, it required that their Lordships ignored the fact that the appellants had been engaged in these activities for some ten years, and that no evidence was adduced to indicate any of the participants had suffered the type of harm or infections which exercised their Lordships. No comment was made on why homosexual SM encounters could be justifiably assumed to pose more of a danger to participants than heterosexual SM encounters.

The case of R v Slingsby [50] also later suggested that, in fact, heterosexuals could participate in sexual activities which the participants didn’t believe were risky (“fisting”) and that consent was a defence, despite accidental blood poisoning resulting in the death of one of the participants.

It is little wonder that people today remain a little confused as to the law in this area given that judgments appear to be peppered with illogical, potentially prejudicial, certainly outdated and arguably conflicting paternalistic and moralistic reasoning.

4. According to their Lordships, public policy (not law) required that society be protected unless there was a “good reason” for the harm [51].

Since public policy reasoning is often no more than an exercise in judges imposing their own personal and moral values on the resolution of the cases in front of them then, I would respectfully suggest they should have been guided by one of the principles of the rule of law: namely, in the exercise of “criminalising”, the balance should fall in favour of the defendant and not the Prosecution if there is doubt. In this case, even the judges pointed out that Parliament would be the appropriate forum for resolving questions concerning the legality of SM. But despite their own reasoning they decided “against inventing a defence of consent” in this context.

Interestingly, no evidence was presented to the court that indicated SM was an activity growing in popularity, and they dismissed the fact that the participants were discreetly (secretly in fact) involved for a decade with no complaint from the general public.

5. That “the difference between ABH and GBH can not be applied by a jury” so they would not be able to “determine acquittal or conviction”.

Doesn’t the same issue arise in relation to the application of the OAPA in normal assault cases?

6. Drink and drugs were involved in securing the consent and increasing the enthusiasm of the participants.

Whilst this was a fact, the construction of the OAPA makes no mention of alcohol or drugs being an element in the offence of ABH and whether consent was good. Indeed, in other cases, such as R v Aitken [52], alcohol was involved but its significance was de-emphasized as merely an element in the context of rough horseplay or manly diversions. On this issue of the role of alcohol in vitiating consent, there appears to be little logical consistency in how it is applied and this may point more to the judges casting around for reasons to support their decision rather than them resolving difficult issues by a true construction of the law.

7. The SM practices of the appellants were held to be “degrading to body and mind”.

These comments appear to reach out to the “harm” principle as a means of justifying the judgment on liberal principles, but just as there was no evidence of SM being essential to the happiness of practitioners, so too there was no evidence that SM was any more dangerous to the bodies or minds of the participants than other activities held to be lawful, such as boxing, religious flagellation or consenting to the risk of contracting HIV by having sex with an infected person.

8. At one point in his judgment, Lord Templeman stated: “Cruelty to human beings was on occasions supplemented by cruelty to animals in the form of bestiality”.

Whilst bestiality is indeed an abhorrent crime which should rightly be condemned on animal welfare grounds and on public health grounds [53], [54] (to prevent zoonotic diseases entering society), this statement conflated another illegal act with the issue which was actually under consideration. Bestiality was illegal by virtue of s.12 Sexual Offences Act 1956 and would have had no significance in determining the certified question. But it does serve to emphasize the degree of moral indignation and inflamed sense of disgust the judges were having to grapple with. Perhaps this sheds some light on the psychological state of mind of their Lordships, who had been exposed to graphic descriptions in the course of their deliberations?

9. Adding further weight to the point that their Lordships were by this time quite disgusted by the subject matter under consideration, they went so far as to comment that the “activities of the appellants (were not) exercises of rights in respect of private and family life”.

It was just too much for their Lordships to equate what they had read about with “family life”. On balance, the ECtHR accepted that private and family rights could have been engaged but that the State had acted within its margin of appreciation in how this was applied [55].

10. Homosexual SM was held to be a “cult of violence” and an “evil thing”.

A reader could be forgiven for thinking these comments – in the context of consensual activities – were more likely to emanate from a Bishop than a Lord Justice.

Indeed, it is the contention of the author that religion played a far greater role in the outcome of this judgment than has been recognized. It is not contended that their Lordships were explicitly biased, but instead that their worldview, values and outlook were informed and guided by the nation’s Christian or Anglican state religion and its pervasive influence.

Evidence of the established church in the law? (Vicarious rule of the church)

Even if evidence can’t be conclusively provided that the judges were influenced by religion directly, the following associations their Lordships had with religion are a matter of public record:

The Register of Lords’ Interests for 1996 held “nil” returns for all their Lordships, but in the 2003 register [56] the following entries were made:

JAUNCEY OF TULLICHETTLE, Lord –

Office-holder in voluntary organisations – Chancellor of the Diocese of St Andrews, Dunkeld and Dunblane in the Episcopal Church in Scotland

Trusteeships – Ex Officio trustee of two charitable trusts providing: holiday accommodation for clergy and their families

SLYNN OF HADLEY, Lord –

Membership of public bodies – Prior, Priory of England and The Islands Order of St. John

Lord Templeman also served on the Ecclesiastical Committee of Parliament between 1992-2001 [57] and was described as showing “bias and ineptitude” and a lack of understanding of “the seriousness of the problem facing the church” in relation to the ordination of women in the Church of England [58].

In a recent speech, the President of the Family Division, Sir James Munby, made the following comments (emphasis added):

“Only a little over a century ago, in 1905, a judge in a family case could confidently opine that the function of the judges was “to promote virtue and morality and to discourage vice and immorality.” So the purpose of the law was the enforcement of morals. And that morality was, of course, Christian.”

“Standing back from the detail, three features […] are striking. First, enthusiastic adherence to the view that the function of the judges was to promote virtue and discourage vice and immorality, secondly, a very narrow view of sexual morality, and, thirdly, the dominant influence wielded by the Christian churches.”

“The moment at which the world changed can, in fact, be identified [..]. The last hurrah of the ancien regime was […] the famous – or infamous – decision in 1961 of the House of Lords in Shaw v Director of Public Prosecutions, for it marked the end, even if not recognised at the time, both of the ancien regime in matters sexual and of the pretension of the judges to set themselves up as guardians of public morality.

“Judges are no longer custos morum of the people, and if they are they have to take the people’s customs as they find them, not as they or others might wish them to be.”

“We live, or strive to live, in a tolerant society increasingly alive to the need to guard against the tyranny which majority opinion may impose on those who, for whatever reason, comprise a small, weak, unpopular or voiceless minority. Although historically this country is part of the Christian west and, although it has an established church which is Christian, we sit as secular judges serving a multi-cultural community of many faiths, sworn to do justice ‘to all manner of people’. We live in this country in a democratic and pluralistic society, in a secular State not a theocracy.

Religion – whatever the particular believer’s faith – is not the business of government or of the secular courts, though the courts will, of course, pay every respect to the individual’s or family’s religious principles.”

“Within limits the law – our family law – will tolerate things which society as a whole may find undesirable.” [59]

To a secularist like myself this speech was well received but, predictably, not everyone agreed [60], [61].

Even a cursory glance at the day to day workings of the courts today might suggest that they are not as secular as Sir James might rightly hope they are. For example, when judges are sworn in they take two oaths which are together known as the judicial oath; both involve the phrase “I, do swear by Almighty God that…” [62]

Jurors are regularly sworn in with an oath that begins “I swear [by almighty God/by Allah/by Waheguru/on the Gita] that…”; and witnesses and defendants regularly pledge to tell the truth via a similarly “Godly” formula provided for in law [63].

At the start of the legal year judges are invited to a church service in Westminster Abbey, a tradition which “dates back to the middle ages when judges prayed for guidance at the start of the legal term […] The […] service […] is conducted by the Dean of Westminster […] and includes prayers, hymns, psalms and anthems; the Lord Chancellor reads a lesson.” [64]

Add to this the twenty six Bishops (or “Lords Spiritual”), who are involved in making laws for people of all faiths and none, and who at one time rubbed shoulders with our most senior judges in the Lords, and it is not difficult to see why Sir James Munby’s speech was received with some wide-eyed skepticism.

So do we have secular courts or not, and did the secular nature of courts really come to exist overnight in 1961 in a punctuated equilibrium, or has there been a gradual and imperfect creep towards a more secular and inclusive judiciary?

In the opinion of the author the R v Brown judgment certainly puts us on notice that religious ideas could conflict with modern values and ways of living and that there is a danger that judges could reach less than values-neutral conclusions, especially when they are compelled to conclude on the basis of public policy and what is in the public interest.

The R v Brown subject matter of homosexual SM was obviously a challenge to the emotional equilibrium of their Lordships, who were clearly neither homosexual nor SM practitioners. Indeed, such people and practices were quite alien and disgusting to them.

Chan & Gommer theorised that Lord Templeman had been caught up in the “phenomenon of group behaviour” as a consequence of which researchers have:

“shown that simple identification with a group (the ‘in-group’), however meaningless, is enough to arouse hostility towards and cause actions to be taken against an ‘out-group’ – people who are not in the ‘in-group’ and classified as such. At the highest extent, this can mean dehumanising out-group members in order to justify aggression towards them, often by perceiving their structure of values as different and wrongly so. This then, might explain Lord Templeman’s strong and horrified language declaiming sadomasochism as “evil” and “breed[ing] and glorify[ing] cruelty”. [65]

To help readers better appreciate the stifling moralistic culture which dominated the social circles of the senior judiciary around the time of the R v Brown judgment, and to help shed some light on the prevailing hetero-normative prejudice they clearly felt comfortable colluding with, the following quote may assist:

Until 1991, unmarried men and women – including gay and lesbian lawyers – were excluded from entering the judiciary. Unsurprisingly, homophobia, or at least a strong perception of it, still lingers. According to recent research by the lesbian, gay, bisexual and transgender legal group Interlaw, 70% of LGBT lawyers believe there is prejudice within the selection process for judicial office.” [66]

Indeed, even as recently as 2013, Lady Hale was inspired in a judgment to write:

“Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation… [Homosexuals] were long denied the possibility of fulfilling themselves through relationships with others.  This was an affront to their dignity as human beings which our law has now (some would say belatedly) recognised.  Homosexuals can enjoy the same freedom and the same relationships as any others.  But we should not underestimate the continuing legacy of those centuries of discrimination, persecution even, which is still going in many parts of the world.” [67]

If there is any doubt in the minds of readers that there are still influential voices within political and legal circles who want to see Christian principles and values inform the actions of our establishment leaders they need only look at the comments made by the previous Attorney-General, in which he recognised that Christianity remains a “powerful force in this country” [68]. This comment follows hard on the heels of comments made inter alia by the Prime Minister [69], Eric Pickles [70] and Baroness Warsi [71], all of whom have promoted religious influence and visibility in one way or another [72]. The new Secretary of State for Education, Nicky Morgan, went so far as to state her mission in Parliament was not to serve her constituents but to “remember the word of God and serve the Lord.” [73]

So there is little doubt that our judges, whilst independent, work in a system where the established church is not a quaint trace of history but a real presence, determined to be heard and to have an impact on our laws. Is it really any wonder therefore that judges sometimes allow their religion to get them “into difficulties” (as the Lord Chief Justice suggested)?

Would it be fair to allow their Lordships to carry the burden of responsibility alone for this judgment and its effects?

Clearly not, because there are many other actors in this drama who could have acted differently, but who were also probably informed by their personal biases (be it the prevalent homophobia, sexually repressive religious values or simply traditional family values). For example, the police and prosecution authorities didn’t have to proceed to prosecution and needn’t have worked so hard and so creatively to fit the activities of the men so tenuously to the OAPA.

Also, despite some twenty years having now elapsed since the judgment, the legislature has made no effort to remedy the defects widely identified in this judgment. Are they simply intimidated and embarrassed by the topic or do they really believe that homosexual SM should remain stigmatized and peripheral with all the attendant dangers and problems? If it is accepted that the legislature are as religious as many of them seem to keep telling us, there is little chance their personal biases will permit them to act to remedy the confusion in the law in the interests of liberal law-making.

In fairness to our most senior judges, our higher courts are constrained in their ability to seek assistance from experts, to commission reports and to request research be conducted before making a decision. Perhaps if this right were granted to our senior courts, together with the necessary resources, they might be assisted on rare occasions to make more fully-informed rulings which served the best interests of society according to the best evidence. This would avoid the veracity of stinging rejoinders such as the law being made “according to the morality of Lord Templeman”.

“Judges are not moral or intellectual giants, prophets, oracles, mouthpieces, or calculating machines. They are all-too-human workers.” [74]

Based on this starting point Chan & Gommer [75] argue that “too often judges are put on a pedestal of rationality, and as a result, we lose the opportunity to discover and understand what human factors affect judicial decisions.” Once we break through the reluctance to critically analyse the decisions made by our courts we can appreciate why some judgments, like R v Brown, appear so strange alongside other judgments and why they attract so much attention and criticism.

Chan & Gommer also state:

“…the law is written, interpreted and applied by human hands and human minds very much affected by morals and emotions…The consequence [being] that judges and legislators, whether they know it or not, will draw upon their unconscious reservoirs of experience, social norms, morals, emotions and urges when making their decisions.”

This author questions whether in cases which turn on public policy matters, and which therefore introduce questions of morality and moral judgment, unelected judges should be asked to explicitly explore and guard against any risk that they harbour bias or prejudice derived from their religious beliefs.

In a mature, secular democracy like our own, our lawmakers should guard against promoting one set of superstitious values above another. They should ensure our (otherwise decent) establishment and legal system are purged of influences which can lead to institutional bias, rather than unashamedly nurturing bias by promoting one religion or another.

Without doubt, the only approach to legislating and legal interpretation which can fairly accommodate everyone in society is a secular approach. Modern judges know it, and actively say it, and anachronistic judgments might now benefit from being re-examined through a secular lens.

Isn’t it now time for the ratio in R v Brown to be reconsidered? The moralistic and paternalistic language indicates that some of their Lordships did not decide rationally, impartially and with secular heads, but rather that their judgment appears to have been informed by high emotion and disgust, and it seems to many to have the hallmarks of being influenced by outdated religious values.

The fact remains: R v Brown isn’t a judgment that is widely respected. Indeed, one author commented: One cannot help but view their Lordships’ public policy-based reasoning as an unconvincing façade for interventionist judicial moralism”. [76]

Every student of law knows the case of R v Brown, not because of its wisdom, humanity or because it elevates the human condition, but because it is cited as an example of case law which sits uncomfortably with other cases. In addition, the whole area of consent has been opined to be ad hoc, confusing and in need of reform. The judgment itself is highlighted because of its shrill language and ultimately inappropriate moralising. Our law is better than that, but it is only better when it meets the test of fairness and impartiality, and avoids bias.

A strictly secular approach to judicial reasoning and decision-making is a safeguard our best and most senior judges recognise.


[1] R v Brown and other appeals [1993] 2 All ER 75

[2] R v Brown [1993] p.42

[3] Spanner:, SM, consent and the law in the UK. Eric Chaline in conversation with John Pendal. In Lesbian & Gay psychology review (2006) 6(3):283-287

[4] http://www.spannertrust.org/documents/spannerhistory.asp

[5] R v Brown [1993] Lord Mustill p. 37

[6] R v Brown [1993] Lord Lowry p. 23

[7] R v Brown [1993] Lord Mustill p. 25

[8] R v Brown and other appeals [1992] 2 All ER 552

[9] Laskey and others v United Kingdom [1997] ECHR 21627/93

[10] Stychin, C.F. (1995) Law’s Desire: Sexuality and the limits of justice. Routledge

[11] Consent in the Criminal Law. Law Commission Consultation paper No.139

[12] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 10.38

[13] Langridge, D. & Barker, M.(Eds.) (2013) Safe, Sane and Consensual: Contemporary perspectives on sadomasochism. Palgrave Macmillan. pp. 16, 62

[14] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para. 10.18

[15] Mosley v News Group Newspapers Ltd. [2008] EWHC 687 (QB)

[16] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 10.40

[17] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 10.39

[18] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 10.25

[19] c.f. auto-erotic asphyxiation of Conservative MP for Eastleigh Stephen Milligan http://news.bbc.co.uk/onthisday/hi/dates/stories/february/8/newsid_2538000/2538165.stm

[20] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 10.39

[21] R v Lock at Ipswich Crown Court (Judgement on 22nd January 2013) http://www.solicitorsjournal.com/comment/sadomasochism-unleashed

[22] Lord Lowry in R v Brown [1993] citing others at p.18

[23] Attorney General Reference No.6 1980 [1981] EWCA Crim 1

[24] Consent in the Criminal Law. Law Commission Consultation paper No.139 at paras 10.1 – 10.7

[25] R v Wilson [1997] Q.B. 47

[26] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 9.7 and part X

[27] DPP v Smith [1961] AC 290

[28] Attorney General Reference No.6 1980 [1981] EWCA Crim 1

[29] R v Dica [2004] EWCA Crim 1103

[30] R v Konzani [2005] EWCA Crim 706

[31] R v Barnes [2004] All ER (D) 338

[32] R v Aitken [1992] 4 All ER 541

[33] R v Jones (1986) 83 CR App R 375

[34] Attorney General Reference No.6 1980 [1981] EWCA Crim 1

[35] Devlin, P. (1965) The Enforcement of Morals. Oxford University press. p.2

[36] http://lexobiter.blogspot.co.uk/2010/10/thought-on-lord-templemans-judgement-in.html

[37] http://pme2013.blogspot.co.uk/2013/11/homophobia-and-b-case.html

[38] R v Wilson [1997] Q.B. 47

[39] R v Donovan [1934] 2 K.B. 498

[40] R v Emmett [1999] All ER (D) 641

[41] Weait, M. (2013) Sadomasochism and the Law pp.69-88. In Langdridge, D. & Barker, M. (eds) – Safe, Sane and Consensual: Contemporary perspectives on sadomasochism. Pallgrave Macmillan

[42] Bamforth, N. (1994) Sado-masochism and consent. CLR 1994 Sept. pp.661-664

[43] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 10.49

[44] Krueger, R.B. (2010) The DSM Diagnostic Criteria for Sexual Masochism. Arch Sex Behav 39:346-356

[45] Diagnostic and Statistical Manual of Mental Disorders. American Psychiatric Association (2013) volume 5

[46] Frances, A. & Wollert, R. (2012) Sexual Sadism: Avoiding its misuse in sexually violent predator evaluations. J Am Acad Psychiatry Law 40:409-416

[47] http://www.bsa-30.natcen.ac.uk/read-the-report/personal-relationships/homosexuality.aspx

[48] http://www.theguardian.com/politics/homeaffairs/page/0,11026,875944,00.html

[49] R v Dica [2004] EWCA Crim 1103 and R v Konzani [2005] EWCA Crim 706

[50] R v Slingsby [1995] Crim LR 570

[51] Attorney General Reference No.6 1980 [1981] EWCA Crim 1

[52] R v Aitken [1992] 4 All ER 541

[53] Beetz, A.M. & Podberscek, A.L. (eds) (2005) Bestiality and Zoophilia: Sexual relations with animals. Int. Soc. Anthrozoology

[54] Beetz, A.M. (2010) Bestiality and Zoophilia: A discussion of sexual contact with animals. In Ascione, F.R. (ed) The International handbook of animal abuse and cruelty: Theory research and application. Purdue University Press

[55] Laskey and others v United Kingdom [1997] ECHR 21627/93 at para. 41

[56] http://www.publications.parliament.uk/pa/ld/ldreg/prevreg/159.pdf

[57] http://www.parliament.uk/biographies/lords/lord-templeman/1800

[58] http://www.episcopalarchives.org/cgi-bin/ENS/ENSpress_release.pl?pr_number=93060A

[59] LAW, MORALITY AND RELIGION IN THE FAMILY COURTS. Keynote address given at the Law Society’s Family Law Annual Conference ‘The sacred and the secular: religion, culture and the family courts’ London 29 October 2013

[60] http://archbishop-cranmer.blogspot.co.uk/2013/10/sir-james-munby-high-priest-of.html

[61] Similar sentiments to the author on this speech have been expressed by others, see http://www.lawandreligionuk.com/2013/11/01/the-president-of-the-family-division-on-family-law-morality-and-religion/

[62] http://www.judiciary.gov.uk/about-the-judiciary/oaths/ (21/8/14)

[63] s.1 Oaths Act 1978 “The person taking the oath shall hold the New Testament, or, in the case of a Jew, the Old Testament, in his uplifted hand, and shall say or repeat after the officer administering the oath the words “I swear by Almighty God that . . . . . .”, followed by the words of the oath prescribed by law.”

[64] http://www.judiciary.gov.uk/about-the-judiciary/the-justice-system/term-dates-and-sittings/legal-year/

[65] Chan, E.H-Y, & Gommer, H. (2011) Sexually biased case law: A biological perspective. The Original Law Review 7(4):155-171

[66] http://www.theguardian.com/law/2011/oct/06/gay-lawyers-judiciary-homophobia

[67] Bull v Hall [2013] UKSC 73 at para 52 and 53

[68] http://www.telegraph.co.uk/news/religion/11053037/Dominic-Grieve-British-Christians-forced-to-hide-belief.html

[69] http://www.theguardian.com/politics/2014/apr/16/david-cameron-evangelical-about-christian-faith

[70] http://www.telegraph.co.uk/news/religion/10475933/Britain-still-a-Christian-Country-says-Eric-Pickles.html

[71] http://www.telegraph.co.uk/news/religion/9080441/We-stand-side-by-side-with-the-Pope-in-fighting-for-faith.html

[72] http://www.newstatesman.com/uk-politics/2010/04/conservative-christian

[73] http://www.theguardian.com/commentisfree/2013/jun/27/christianity-atheism-two-sides-same-coin

[74] Richard Posner (2009) How Judges Think. p. 7

[75] Chan, E.H-Y, & Gommer, H. (2011) Sexually biased case law: A biological perspective. The Original Law Review 7(4):155-171

[76] Connor, N. A contemporary critique of R v Brown and the legal status of consensual sado-masochism http://thestudentlawyer.com/2013/03/21/r-v-brown-20-years-on/

Dr. Peter Bowen-Walker is a biological scientist, lecturer and a part-time law student with an interest in animal welfare, habitat protection and environmental law. You can read more about him here.


Image credit: http://www.clipartbest.com

Views expressed are not necessarily those of the LSS

LSS logo2

Follow the LSS on Twitter @LawSecSoc and stay up to date with everything the LSS is up to by signing up for email alerts on this website’s home page (you can unsubscribe anytime you want)

Advertisements

One thought on “R v Brown – twenty four years on, a critical secular perspective (part 2)

  1. Pingback: Religion and law round up – 21st September | Law & Religion UK

Comments are closed.