Over himself, over his own body and mind, the individual is sovereign.’ John Stuart Mill
‘The function of the criminal law... is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others…’ Wolfenden Report
Introduction
These quotations illustrate a contentious area in legal policy and debate. They support the provided statement which describes the conflict that the law has faced in balancing the two principles. On the one hand is the individuals’ right to personal autonomy and to choose what he does with his body, as supported by the Liberalist …show more content…
The practice of sadomasochism is the deliberate use of physical and/or psychological ‘pain’ to produce sexual arousal. This may appear as an oddity to some of society however research implies that such behaviour can be traced throughout history. Hart argues that ‘it is one thing to disapprove of and criticise but another to impose legal liability’. This would imply that the reason for regulating sadomasochistic behaviour is based on a moral judgement. In support of this, Tolmie has described the regulation of sadomasochism as the criminal law enforcing ‘morally acceptable standards of behaviour upon those who ought to be free’. From this it could be concluded that the law is acting paternalistically by imposing regulations. In conflict, the result of this paternalism is the depravation of ‘the individual of the right to choose how far they are willing to go’. It is important to raise the point that not all sadomasochistic behaviour would be regarded as illegal. This in itself raises an analytical point as there appears to be a grey area of what behaviour would and would not be …show more content…
It is not disputed by this project that the purpose of The Act was to protect individuals from harm. What is disputed is whether The Act can be used to prosecute an activity ‘which was never in mind when the act was drafted’?. Anthony Furlong commented that ‘it is the essence of a crime against the person that injury is inflicted contrary to the will of the victim’. Sadomasochists however present a category of people who are consenting to the harm. Therefore, it could be argued that they are distinguished from the category of people that The Act aimed to protect and that their mutual consent to the behaviour should negate criminal liability. An advocate for the behaviour of a sadomasochists would argue that ‘sadomasochistic acts between consenting adults carried on in private should not fall under the Act of 1861’. This argument was explored in the case of R v Brown. Janice Tsang described Brown as an ‘an excellent illustration of the conflict between the rights of individuals and the right of the State to interfere with those rights’. This is demonstrated by the facts of the case where five men were convicted of offences under the Act for injuries inflicted during consensual sadomasochist activities. It still remains law that consent to a behaviour that occasions ABH or a more serious injury cannot negate liability. In contrast, the case named exceptions
‘The function of the criminal law... is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others…’ Wolfenden Report
Introduction
These quotations illustrate a contentious area in legal policy and debate. They support the provided statement which describes the conflict that the law has faced in balancing the two principles. On the one hand is the individuals’ right to personal autonomy and to choose what he does with his body, as supported by the Liberalist …show more content…
The practice of sadomasochism is the deliberate use of physical and/or psychological ‘pain’ to produce sexual arousal. This may appear as an oddity to some of society however research implies that such behaviour can be traced throughout history. Hart argues that ‘it is one thing to disapprove of and criticise but another to impose legal liability’. This would imply that the reason for regulating sadomasochistic behaviour is based on a moral judgement. In support of this, Tolmie has described the regulation of sadomasochism as the criminal law enforcing ‘morally acceptable standards of behaviour upon those who ought to be free’. From this it could be concluded that the law is acting paternalistically by imposing regulations. In conflict, the result of this paternalism is the depravation of ‘the individual of the right to choose how far they are willing to go’. It is important to raise the point that not all sadomasochistic behaviour would be regarded as illegal. This in itself raises an analytical point as there appears to be a grey area of what behaviour would and would not be …show more content…
It is not disputed by this project that the purpose of The Act was to protect individuals from harm. What is disputed is whether The Act can be used to prosecute an activity ‘which was never in mind when the act was drafted’?. Anthony Furlong commented that ‘it is the essence of a crime against the person that injury is inflicted contrary to the will of the victim’. Sadomasochists however present a category of people who are consenting to the harm. Therefore, it could be argued that they are distinguished from the category of people that The Act aimed to protect and that their mutual consent to the behaviour should negate criminal liability. An advocate for the behaviour of a sadomasochists would argue that ‘sadomasochistic acts between consenting adults carried on in private should not fall under the Act of 1861’. This argument was explored in the case of R v Brown. Janice Tsang described Brown as an ‘an excellent illustration of the conflict between the rights of individuals and the right of the State to interfere with those rights’. This is demonstrated by the facts of the case where five men were convicted of offences under the Act for injuries inflicted during consensual sadomasochist activities. It still remains law that consent to a behaviour that occasions ABH or a more serious injury cannot negate liability. In contrast, the case named exceptions