What is the role of the criminal law when people consent to an activity that may be seen as

harmful? Should consent make a difference to whether the act is a crime?

Discuss with particular reference to a critical analysis of relevant cases and/or legislation in
relation to one or more of the following areas in which these questions have arisen: sporting
violence, sado-masochistic sexual activities, or ritual circumcision.

1
As with most legislative and judicial dealings with personal liberty, the role of the criminal law, in
relation to an individual's ability to consent to the infliction of harm upon themselves, is to maintain a
delicate balancing act. Within this essay, I will be focusing primarily on the effects of this tension
within the jurisdictions of the United Kingdom and Victoria. A person's freedom and autonomy is
limited by the need to protect society as a whole. Consequently, assault and homicide laws, enacted
partly to prevent non-consensual violence and aggression or the threat of it, function also to convict
people who inflict certain levels of harm upon others despite their victim's full, valid consent.1

Valid consent is given freely, voluntarily and knowingly.2 This means that consent is not offered under
duress, intimidation or helplessness, is controlled by the person giving it and its implications,
alternatives and scope are also understood by them.3 Despite the establishment of valid consent
however, legal restraints can be placed upon it. It is held that there are some forms of harm, that are in
some way irreversible, or culminate in death, that are simply too severe for an individual to lawfully
consent to.4

The application of these laws and limitations to sado-masochism has added to their complexity and
scope. It has been the task of the courts, due to the lack of legislation governing this issue, to determine
the definition of 'too severe' and, subsequently, what level of harm a person can lawfully consent to in
the course of sado-masochistic activities.5 It must be noted however, that regardless of where the line is
drawn, there are a number of exceptions, like boxing, surgery and ritual circumcision, where, whilst the
level of harm inflicted is of a much higher standard than normally allowed, consent remains a full
defence to charges of assault.6

Sado-masochism should not be among these immune practices, however, consent should undoubtedly
play a role in whether or not the harm inflicted by its participants should be considered assault. I

1 Sue Streets, 'S&M in the House of Lords' (1993) 18 Alternative Law Journal 233, 233
<http://www.heinonline.org.ezproxy.lib.monash.edu.au/HOL/Page?page=233&handle=hein.journals%2Falterlj18
&collection=journals>.

2 Nafsika Athanassoulis, 'The Role of Consent in Sado-masochistic Practices' (2002) 8(2) Res Publica 141, 143
<https://eds-a-ebscohost-com.ezp.lib.unimelb.edu.au/eds/detail/detail?vid=5&sid=84b2feaf-f4ee-47c5-a231-
caeb2fd00c49%40sessionmgr4005&hid=4213&bdata=JnNpdGU9ZWRzLWxpdmUmc2NvcGU9c2l0ZQ%3d%3d#db=
edb&AN=49943944 >.
3 Ibid 144; see also David Ross, 'Consent in Criminal Law' (2009) 32 Australian Bar Review 62, 71
<http://www.lexisnexis.com.ezproxy.lib.monash.edu.au/au/legal/results/enhdocview.do?docLinkInd=true&ersKey=23_
T21541600759&format=GNBFULL&startDocNo=1&resultsUrlKey=0_T21541648658&backKey=20_T21541648659
&csi=267865&docNo=1&scrollToPosition=53>.
4 R v Brown [1994] 1 AC 212, 233 [F]; see also Lord Jauncey at: 244 [H]; Athanassoulis, above n 2, 145; Ross, above n
3, 62.
5 Streets, above n 1, 233.
6 R v Brown [1994] 1 AC 212, 231 [E]-[F]; see also, Brian Bix, 'Consent, Sado-Masochism and the English Common
Law' (1997) 17(157) Quinnipiac Law Review 157, 164
<http://sfx.unimelb.hosted.exlibrisgroup.com/sfxlcl41/?genre=article&isbn=&issn=10738606&title=QLR&volume=17
&issue=2&date=19970101&atitle=Consent%2C%20Sado-
Masochism%20and%20the%20English%20Common%20Law%20%5Barticle%5D&aulast=Bix,%20Brian&spage=157
&sid=EBSCO:HeinOnline&pid>.

2
propose, in support of the opinion of Vincent J in R v McIntosh7 and borrowing from the judgment of
Kellam JA in R v Stein,8 that an individual should be able to lawfully consent to anything less than
serious or substantial physical harm. In addition, from the moment the ability to retract that consent is
taken away from an individual, their consent to subsequent harm is immaterial. In relation to the
infliction of injury (ss 16 and 18)9, under the Crimes Act 1958 (Vic), serious injury means an injury
(either physical or mental) which endangers life or is substantial and protracted.10 Physical injury is a
non-exhaustive term which includes 'unconsciousness, disfigurement, substantial pain, infection with
disease and an impairment of bodily function.'11 Though 'substantial physical injury' is not specifically
defined, in the context of McIntosh,12 it can be understood similarly to 'serious injury' in that the harm
inflicted endangers life.

Arguably the central case in relation to consent to harm arising out of sado-masochistic situations is R v
Brown.13 Within it, the majority verdict held that, contrary to what I have proposed, a person can only
lawfully consent to harm that is transient and trifling, namely anything less than actual bodily harm.14
Their arguments, in general, highlight many of the potential concerns with relaxing the limitations on
lawful consent. Within this essay, I will discuss these main issues and in doing so, illustrate the validity
of a more lenient approach.

A Potential for harm

The appellants in Brown were a group of middle aged homosexual men who were the dominant
partners in a sado-masochistic ring15, charged with offences under ss20 and 47 of the Offences Against
the Person Act 1861 (UK).16 These offences are most closely represented by ss16 and 18 in the Crimes
Act 1958 (Vic) Valid, enthusiastic consent was obtained from all the submissive partners, safe words
were agreed upon and the instruments for inflicting pain were kept well sterilised. None of the
participants made any complaints, nor retracted their consent after their previously extremely private
activities were accidentally discovered by the police. Most tellingly, none suffered permanent injuries
and it could not be proven that anyone contracted HIV from their participation.

Supported by Lords Lowry and Templeman, Lord Jauncey expresses his concern about the
unpredictability of harm inflicted during a sado-masochistic sexual encounter, arguing that the risk of
'an inflictor... carried away by sexual excitement' inflicting more harm than the receiver consented to is
high.17 With respect, this reasonable argument is somewhat weakened when compared to one of the
aforementioned exceptions to the limited consent to harm rule – violent sports. Chris Davies notes that

7 [1999] VSC 358 (3 September 1999) [13]-[15].

8 (2007) 18 VR 376, 381.
9 Crimes Act 1958 (Vic) ss (16), (18).
10 Ibid s15 (definition of 'serious injury').
11 Ibid s15 (definition of 'physical injury').
12 [1999] VSC 358.
13 [1994] 1 AC 212.
14 Ibid.
15 Ibid.
16 Offences Against the Person Act 1861 (UK), cited in, Ibid 230 [F]-[H].
17 Ibid 246 [A]-[B]; see also, Lord Lowry: at 255 [H]; Lord Templeman: at 235 [F].

3
the nature of body contact sport, at both professional and amateur levels, is the tendency for 'even the
most mild mannered individual' to get 'revved up [and] excited' due to 'white line fever', 18 a competitive
instinct with effects not unlike a sexual one. Instances of king-hits in the AFL, assaults in the NHL and
even biting in FIFA soccer games, all outside of the regular rules and implied consent, are common. 19
In particular, notes Streets, during a boxing match there is no way to foretell the level of harm that will
be inflicted.20

In Pallante v Stadiums Pty Ltd,21 McInerney J, in attempting to qualify boxing's inclusion as an

exception to the lawful consent rule, notes that the recognised rules and the presence of referees to
enforce these rules allows, or from some perspectives legitimises, the use of violence within the sport.22
Athanassoulis is quick to highlight the comparison – sado-masochism has rules too, established
between the consenting parties and, like sport, involves consent for certain activities, with systems like
safe words establishing the boundaries.23 The obvious rebuttal would be, of course, that sado-
masochism does not have an equivalent referee, yet, putting aside the fact that the presence of referees,
as noted above, does not always prevent non-consensual harm from occurring in sport, Lord Mustill, in
his dissenting judgment, proposes that the law fill its place.24 In the event of the infliction of very
serious injury or death, the law will deal with the perpetrator in the same way as it would if the same
occurred during 'normal' sexual activity.25 Violent sport adopts this same measure. In addition, in
circumstances where consent is retracted or, as in R v Stein,26 the victim's ability to retract consent is
removed, the subsequent actions would be assault.27 Like in violent sport, the law can act as the
enforcer for sado-masochists who venture outside their partner's lawful consent, and its inherent
deterring factor will encourage a greater adherence to this consent.

B An indulgence of cruelty?

Continuing to further their argument through a comparison of sado-masochism to boxing, the majority
judgment in Brown28 places great importance on the distinction that sado-masochism is performed 'for
the indulgence of cruelty',29 whilst in boxing, the violence is incidental to another more noble purpose.
In upholding the reasoning in R v Coney, Lord Jauncey supports this assertion.30 McInerney J, in

18 Chris Davies, 'Criminal law and assaults in sport: An Australian and Canadian perspective' (2006) 30 Criminal Law
Journal 151, 156
<http://www.westlaw.com.au.ezproxy.lib.monash.edu.au/maf/wlau/app/document?&src=search&docguid=Ide4912facf
eb11e08eefa443f89988a0&epos=4&snippets=true&fcwh=true&startChunk=1&endChunk=1&nstid=std-anz-
highlight&nsds=AUNZ_JOURNALS&isTocNav=true&tocDs=AUNZ_AU_JOURNALS_TOC&context=13&extLink=
false >.
19 Ibid.
20 Streets, above n 1, 236.
21 [1976] VR 331, 336-337.
22 Athanassoulis, above n 2, 147; see also, Ross, above n 3, 63; Streets, above n 1, 235.
23 Athanassoulis, above n 2, 153.
24 [1994] 1 AC 212, 274 [E]-[G].
25 Ibid.
26 (2007) 18 VR 376.
27 Ibid 381, 22; see also, Athanassoulis, above n 2, 154.
28 [1994] 1 AC 212.
29 Ibid 236 [G].
30 R v Coney (1882) 8 QBD 534, cited in R v Brown [1994] 1 AC 212, 241 [G]-[H].

4
Pallante, claims boxing's main purpose is to be a demonstration of skill and physical condition.31
Incidental does not have the same definition as unintentional. With boxing in mind, that would be
absurd. According to McInerney J, the punches are deliberate, but are not the overall aim32.

This perception has been rejected by some commentators33 and by Lord Mustill in his dissenting
judgment, claiming that when framing boxing's physical goal as 'end[ing] the contest prematurely by
inflicting a brain injury serious enough to make the opponent unconscious', 34 it is easy to understand
the potential glorification of violence present. In addition, Streets argues, this violence (whether
incidental or not) is televised and celebrated by spectators in a far more public fashion than the
secluded, private activities of participants in sado-masochism.35

Regardless, it is possible to take the relationship attributed to sport and violence and apply it to sado-
masochism as well. If Lord Mustill's point about sado-masochism being an act of sex rather than an act
of violence36 is accepted, then it could easily be argued that the main purpose of sado-masochism is
sexual gratification, with violence acting only as a means to achieve it.37 Athanassoulis highlights the
diversion:
The purpose of violence in sado-masochism... differs also from common assault. In common assault
violence is used maliciously, against the victim’s wishes, with the purpose of causing harm and
discomfort. In sado-masochism, however, violence is indeed used to cause pain, but in accordance with
the ‘victim’s’ wishes and with the purpose of causing pleasure.38

An acknowledgement of this non-hostile state of mind can be found in Victorian case R v McIntosh.39
After having initially been found guilty of murder, on appeal this charge was downgraded to
manslaughter by an unlawful and dangerous act. Whilst engaging in consensual sado-masochistic
sexual activity with the deceased, namely, the creation of a state of asphyxiation to heighten sexual
pleasure, McIntosh caused his partner's death. Vincent J, in quashing the murder charge, claimed that,
given the circumstances of consensual adult sado-masochistic sexual activity, it could not be inferred
that McIntosh intended to inflict significant physical harm on the deceased.40

Given the logical nature of this conclusion and future application, Lord Mustill reasons that its rejection
in Brown is solely due to the fact that, according to the majority judgment, public policy requires that it
is not tolerated.41

31 [1976] VR 331, 343 [25].

32 Ibid 342.
33 Streets, above n 1, 235; see also, Athanassoulis, above n 2, 149.
34 R v Brown [1994] 1 AC 212, 265 [E].
35 Streets, above n 1, 235.
36 R v Brown [1994] 1 AC 212, 256 [G].
37 Athanassoulis, n 2, 149.
38 Ibid 151; see also, R v Brown [1994] 1 Ac 212, 261 [B]; Phil CW Chan, 'Sado-masochism and the Rule of Law: Brown
Re-examined [online] (2006) 1(4) International Journal of Punishment and Sentencing 195, 196
<http://search.informit.com.au.ezp.lib.unimelb.edu.au/documentSummary;dn=223688227167856;res=IELHSS>.
39 [1999] VSC 358.
40 Ibid [15].
41 [1994] 1 AC 212, 265 [F]-[G].

5
 C A depraved sexual act

As set out in Coney,42 consent is no defence to injury if the injury inflicted is of such a nature that it is
injurious to the public as well. This public policy angle proved to constitute the main thrust of the
majority argument in Brown,43 tasked, as they were, with arriving at a judgment in an area of which
parliament had not set any legislative guidelines.

Their decision to limit the level of lawful consent to harm to less than actual bodily harm during the
course of sadomasochistic activities therefore strongly reflects their perceptions of society's opinion,
clouded by their own moral understandings. Sado-masochism, despite its previously discussed
similarities with a violent sport like boxing and comparative invisibility to the public's gaze, was not
awarded any leniency or exception due to the majority judgment's opinion that sado-masochism is not
socially desirable.44 Unlike the 'manly pastime' of boxing,45 there is something objectionable about
consenting to pain for the purpose of sexual gratification, a jarring collision of pain's traditional role as
a punishment and its capacity to bring certain individuals pleasure.46

In addition, the Lords at times employed rather vitriolic language when referring to the appellants'
behaviours, Lord Templeman famously referring to their ring as 'a cult of violence.' 47 Most worryingly,
however, was the repeated and confusing reference to the appellants' homosexuality within the
judgments.48 Lord Templeman spent a good portion of his judgment discussing society's changing
attitudes to homosexuality and the Wolfenden Report which called for its decriminalisation. 49 Lord
Jauncey claimed that actual bodily harm inflicted during homosexual sado-masochistic acts should not
be lawful, thus, at least logically, providing room for it to be lawful during heterosexual sado-
masochism.50 Lord Lowry asserts that homosexual sadomasochism is a 'perverted and depraved sexual
desire' that is in no way 'conducive to the enhancement... of family life or... to the welfare of society',51
utilising language that mirrors the type used when homosexuality remained a crime.52

Personal disgust, however, notes Lord Slynn in his dissenting judgment, is not an appropriate
foundation upon which to base a judgment.53 Furthermore, a relaxation of the lawful level of consent to
serious harm does not give approval of the act, just as the decriminalisation of homosexuality, suicide
and prostitution is not a recommendation of any of these practices.54

42 (1882) 8 QBD 534, 549.

43 [1994] 1 AC 212.
44 Ibid 237 [B]; see also, Lord Lowry: at 255 [D]-[E].
45 Pallante v Stadiums Pty Ltd [1976] VR 331, 343 [5].
46 Chan, above n 37, 196; see also, Athanassoulis, above n 2, [150], [153].
47 R v Brown [1994] 1 AC 212, 237 [G].
48 Chan, above n 37, 211.
49 R v Brown [1994] 1 AC 212, 233-235.
50 Ibid 246 [D].
51 Ibid 255 [E]-[F].
52 Athanassoulis, above n 2, 154.
53 R v Brown [1994] 1 AC 212, 276 [H]; see also, Streets, above n 1, 236.
54 R v Brown [1994] 1 AC 212, 273 [B]; see also, Athanassoulis, above n 2, 154.

6
Chan has concerns that such unfair prejudice towards homosexuals within the Brown55 verdict may
adversely affect the common law jurisdictions which look towards the UK, however, this does not
seem to have transpired in Australia. In both Stein56 and McIntosh,57 the parties were engaging in
sadomasochistic activities in couplings that could hardly be called heteronormative, and yet this was
not identified as a relevant fact. The descriptions of the activities in Stein, including the male victim
being bound and dressed in women's clothing, were stated with the aim of ascertaining the specific acts
the victim had consented to, not to highlight the unorthodox nature of his sexual predilections.58
Likewise, in his directions in McIntosh, Vincent J stated that it was not unlawful for two consenting
adults (note the absence of the specification of males) to partake in sadomasochistic activities. 59 His
subsequent support for and identification of the limit for lawful consent to harm being at the infliction
of significant physical harm reflects this neutral, objective approach to the sexuality and sexual
preferences of the parties to the case, directly contrasting the approach taken in Brown.60

According to Bix, in the aftermath of the decision by the majority in Brown61 in relation to consent to
sadomasochistic activities, most commentators were disappointed.62 The decision to limit an
individual's ability to lawfully consent to harm to the infliction of anything less than actual bodily harm
was viewed as being tarnished by personal moral bias, a misunderstanding of the purpose of
sadomasochism and a preoccupation with both the potential for harm and the appellants'
homosexuality. By highlighting the weaknesses in these arguments, and contrasting them with
Victorian cases that have successfully adopted a more lenient stance, I have endeavoured to validate
my proposal that a person, in the realm of sadomasochism, should be able to lawfully consent to any
injury deemed less than serious or significant physical harm.

55 [1994] 1 AC 212.
56 (2007) 18 VR 376.
57 [1999] VSC 376.
58 (2007) 18 VR 376, 380 [16].
59 [1999] VSC 358 [11].
60 [1994] 1 AC 212.
61 Ibid.
62 Bix, above n 6, 157.

7
 BIBLIOGRAPHY

A Articles/Books/Reports

Athanassoulis, Nafsika, 'The Role of Consent in Sado-masochistic Practices' (2002) 8(2) Res Publica 141 <https://eds-a-
ebscohost-com.ezp.lib.unimelb.edu.au/eds/detail/detail?vid=5&sid=84b2feaf-f4ee-47c5-a231-
caeb2fd00c49%40sessionmgr4005&hid=4213&bdata=JnNpdGU9ZWRzLWxpdmUmc2NvcGU9c2l0ZQ%3d%3d#db=edb
&AN=49943944 > [02/03/2015]

Bix, Brian, 'Consent, Sado-Masochism and the English Common Law' (1997) 17(157) Quinnipiac Law Review 157
<http://sfx.unimelb.hosted.exlibrisgroup.com/sfxlcl41/?genre=article&isbn=&issn=10738606&title=QLR&volume=17&iss
ue=2&date=19970101&atitle=Consent%2C%20Sado-
Masochism%20and%20the%20English%20Common%20Law%20%5Barticle%5D&aulast=Bix,%20Brian&spage=157&si
d=EBSCO:HeinOnline&pid > [01/03/2015]

Chan, Phil CW, 'Sado-masochism and the Rule of Law: Brown Re-examined [online] (2006) 1(4) International Journal of
Punishment and Sentencing 195
<http://search.informit.com.au.ezp.lib.unimelb.edu.au/documentSummary;dn=223688227167856;res=IELHSS >
[02/03/2015]

Davies, Chris, 'Criminal law and assaults in sport: An Australian and Canadian perspective' (2006) 30 Criminal Law
Journal 151
<http://www.westlaw.com.au.ezproxy.lib.monash.edu.au/maf/wlau/app/document?&src=search&docguid=Ide4912facfeb11
e08eefa443f89988a0&epos=4&snippets=true&fcwh=true&startChunk=1&endChunk=1&nstid=std-anz-
highlight&nsds=AUNZ_JOURNALS&isTocNav=true&tocDs=AUNZ_AU_JOURNALS_TOC&context=13&extLink=fals
e > [04/03/2015]

Leigh, L. H, 'Sado-Masochism, Consent, and the Reform of the Criminal Law I' (1976) 39(2) The Modern Law Review 130
<http://www.jstor.org.ezp.lib.unimelb.edu.au/stable/pdf/1093806.pdf?acceptTC=true > [01/03/2015]

Meepos, Devin, '50 Shades of Consent: Re-defining the Law's Treatment of Sadomasochism' (2013) 43(97) Southwestern
Law Review 1
<http://www.lexisnexis.com.ezp.lib.unimelb.edu.au/hottopics/lnacademic/?verb=sr&csi=146219&sr=AUTHOR(Meepos)%
2BAND%2BTITLE(50+shades+of+consent%3A+re-
defining+the+law%27s+treatment+of+sadomasochism)%2BAND%2BDATE%2BIS%2B2013 > [02/03/2015]

Ross, David, 'Consent in Criminal Law' (2009) 32 Australian Bar Review 62

<http://www.lexisnexis.com.ezproxy.lib.monash.edu.au/au/legal/results/enhdocview.do?docLinkInd=true&ersKey=23_T21
541600759&format=GNBFULL&startDocNo=1&resultsUrlKey=0_T21541648658&backKey=20_T21541648659&csi=26
7865&docNo=1&scrollToPosition=53 > [01/03/2015]

Streets, Sue, 'S&M in the House of Lords' (1993) 18 Alternative Law Journal 233
<http://www.heinonline.org.ezproxy.lib.monash.edu.au/HOL/Page?page=233&handle=hein.journals%2Falterlj18&collectio
n=journals> [01/03/2015]

8
Weait, Matthew, 'Harm, Consent and the Limits of Privacy' (2005) 13(1) Feminist Legal Studies 97
<http://eds.a.ebscohost.com.ezp.lib.unimelb.edu.au/eds/pdfviewer/pdfviewer?sid=8022a045-3073-4eea-8eff-
4307b2331534%40sessionmgr4003&vid=1&hid=4103 > [01/03/2015]

B Cases

Pallante v Stadiums Pty Ltd [1976] VR 331

R v Brown [1994] 1 AC 212

R v Coney (1882) 8 QBD 534

R v McIntosh [1999] VSC 358

R v Stein (2007) 18 VR 376

C Legislation

Crimes Act 1958 (Vic)

Offences Against the Person Act 1861 (UK)