## Facts

- Over roughly a decade, a group of adult men engaged in consensual sadomasochistic sexual activity in private settings.
- Acts included beatings, genital torture, branding, and injuries involving breaking the skin; encounters were videotaped and shared within the group.
- No participant complained to police; the conduct came to light through an unrelated investigation.
- Injuries exceeded “transient or trifling” harm but did not result in proven permanent injury.
- Defendants were charged under the Offences Against the Person Act 1861 with assault occasioning actual bodily harm (s 47) and unlawful wounding (s 20).
- The trial judge ruled consent was not a defense to s 47 or s 20 in these circumstances; defendants pleaded guilty and were sentenced.
- The Court of Appeal upheld the convictions and certified a question on whether the prosecution must prove lack of consent for s 20 and s 47 in this context.

## Issues

1. In prosecutions for unlawful wounding (s 20) and assault occasioning actual bodily harm (s 47) arising from consensual sadomasochistic encounters, must the prosecution prove lack of consent by the injured person?
2. More broadly, can an adult validly consent to the intentional infliction of actual bodily harm or wounding for private sexual gratification?
3. What limits, as a matter of law and public policy, restrict consent as a defense to non-trivial bodily harm outside recognized categories (e.g., sport, surgery)?

## Decision

- The House of Lords dismissed the appeals by a 3–2 majority and answered the certified question “no.”
- Consent was held not to be a defense to s 47 or s 20 where actual bodily harm or wounding is intentionally inflicted during sadomasochistic sexual activity, even between consenting adults in private.
- The majority reasoned that intentional infliction of bodily harm is unlawful absent a “good reason,” and sexual gratification was not such a reason.
- The majority treated the conduct as presenting risks of serious harm and as a form of violence the criminal law may restrain on public policy grounds.
- Two Law Lords dissented, reasoning that criminal liability should not extend to consensual private sexual conduct causing non-serious injury without clear legislative direction, and noting privacy considerations.

## Legal Principles

- Consent generally does not excuse the intentional infliction of actual bodily harm or wounding under the 1861 Act unless the activity falls within a recognized lawful category.
- Consent may operate for “transient or trifling” injuries, but not for harm amounting to actual bodily harm, absent an accepted exception (e.g., properly regulated sport, surgery/medical treatment, and certain other limited categories).
- Sadomasochistic sexual activity causing more than transient or trifling injury is outside the recognized exceptions; the injured party’s consent is legally irrelevant for s 47 and s 20.
- Courts may treat public policy concerns about violence and risk of escalation as reasons to withhold recognition of consent in this setting.

## Conclusion

The House of Lords held that, for offenses of actual bodily harm and wounding, the prosecution need not prove lack of consent where the injuries were intentionally inflicted during consensual sadomasochistic sex; consent is not a defense unless the conduct fits within a recognized lawful exception.


R v. Brown (Anthony) (H.L. 1993)