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22167 SEXUALITY, GENDER AND THE LAW STUDENT ID: 201604269

Title Pages

1. Introduction 2

2. History and Culture of BDSM 2

3. Important Facts of BDSM 3

4. Legal perspective of BDSM and the informed consent 5

5. Public Interest 8

6. Human Rights 10

7. The Recent Law 12

8. Conclusion 15

9. Bibliography 16

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Word Count: 5292


Introduction:
There is a childs game called Trust Me, a person stands in front of another and falls
backward, by trusting that the person behind will catch them before crashing to the floor.
This game involve the component of danger, the risk of getting hurt if the person are not
getting caught. The person falling places a great trust on the person who catch him or her.
When the falling player believes the catcher sufficient to let go completely, and the catch
take place as planned, both of the players will experience an exhilaration moment that is
hard to duplicate any other way. This game is similar with BDSM. This is an abusive lifestyle
which including chains, whips and torture. When trust trump over the possibility of harm,
BDSM can provide a result of feeling incredibly intimate and erotic. 1
History and Culture of BDSM:

Figure 1: Combination of the terms of BDSM


BDSM can be said as an abbreviation of the combination of the terms Bondage and
Discipline (B/D), Dominance and submission (D/S) and Sadism and Masochism (S/M).2 In 18th
century, a French aristocrat and philosopher, the Marquis de Sade, was well recognised
because of his shocking, libertine sexual politics and personal lifestyle.3 Marquis took part
in discourse of philosopher around the sexual behaviour, his philosophy, sexual practices
and erotic writing were known to merge the prurient with some violent. His deeds and
words has been considered as crime and blasphemy in opposed to Catholic Church, he
would be locked or imprisoned for 32 years of his life in an insane asylum. The words of
sadism and sadist were came from his name, Sade. Though the eponymous adscription
of this term goes to Marquis, it was applied by Freud and the 20th century psychoanalysts.
The consolidation between sex and violent practices did not originate with the infamous

1
'A Loving Introduction To BDSM' (Psychology Today, 2017) <https://www.psychologytoday.com/blog/all-
about-sex/201206/loving-introduction-bdsm> accessed 17 April 2017.
2
'BDSM' (En.wikipedia.org, 2017) <https://en.wikipedia.org/wiki/BDSM> accessed 17 April 2017.
3
'BDSM History' [2012] BDSM: History, Culture, and Awareness
<https://www.sexualrecovery.com/blog/bdsm-history-culture-awareness/> accessed 17 April 2017.

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Marquis. Many things regarding S/M emerge in historical research in medieval period,
though it is doubtful these things arose even there.4

Now, BDSM has been used as a catch-all-phrase which covering a broad of


behaviour. Its characterized mainly by restrain and bondage play. Nevertheless, the
subcultures of BDSM have come to embrace various irregular sexual practices. These
practices including extreme body modifiers, rubber enthusiasts and animal players (not
necessarily furries). But, although BDSM including all this, the most common one remains
dominance and submission.5
Important Facts of BDSM:
On the other hand, the important fact about BDSM is, it does not always involve sex,
but it can be. Normally, when talk about BDSM, majority of people will think that it is the
most challenging, richest, scary-vulnerably and demanding, when it is combined with a
loving, romantic sexy relationship.6 In fact, a professional dominatrix NEVER have sex with
her client. Isnt it sound crazy? The thing is, BDSM is not constantly related with erections
and orgasms. It's more similar to a meditation or therapy. It's a place to probe boundaries,
fantasy, and emotions. Yet, it is very erotic. An example can be used is, a massage.
Sometimes, a massage, no matter how sensual it feels, it is merely a massage. For most of
the persons, a rubdown is pretty much always leads to sex. This is alike with BDSM, it is a
matter of personal and sexual preference.7
"On a level in physiology, the fear and danger elements get the adrenal glands going,
flooding the system of a person with epinephrine, followed by endorphins. These are the
natural painkillers of the body and they model opioids in how they make people feel, giving
people feelings of relaxation, calm and well-being." 8Sandra LaMorgese Ph.D, an expert in
bridging the gap between a lifestyle and sexuality which concern on holistic health of the
spirit, body and mind held that, "Majority of the clients said, when a session is over, they
feel a sense of a warm or euphoria, ecstatic glow. On a Psychologically respect, this kind of
activity can be very healing too. Normally subs have gone through life harbouring sexual

4
'BDSM History' [2012] BDSM: History, Culture, and Awareness
<https://www.sexualrecovery.com/blog/bdsm-history-culture-awareness/> accessed 17 April 2017.
5
'Cite A Website - Cite This For Me' (Observationdeck.kinja.com, 2017)
<http://observationdeck.kinja.com/bdsm-culture-through-history-and-to-the-present-maybe-1685471371>
accessed 18 April 2017.
6
'BDSM Does Not Equal Sex Does Not Equal Love (Automatically)' (Dominantguide.com, 2017)
<http://dominantguide.com/676/bdsm-does-not-equal-sex-does-not-equal-love-automatically/> accessed 19
April 2017.
7
(2017) <http://dominantguide.com/676/bdsm-does-not-equal-sex-does-not-equal-love-automatically/>
accessed 19 April 2017.
8
Gigi Engle, 'What Is BDSM And Why Are People So Into It?' (POPSUGAR Love & Sex, 2017)
<https://www.popsugar.com/love/What-BDSM-43171408> accessed 19 April 2017.

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desires that they feel very shameful, but practicing BDSM provides them a free space to
explore their fantasies without the fear of shame and judgement."9

Owing to the facts that BDSM is not always about intercourse, a person is not
necessarily to say that he or she hooked up or had sex with someone after an
experience of BDSM. Rather, these are called scenes, for example, a person scene with
another or the person had a scene. An expert in sex, Gloria Brame, Ph.D, author of the
Different Loving said that, "It's an evolution from a time where, if you did S/M, you might
only do it with a professional for an hour, or you might just see it performed at a BDSM
club. "Now people have much more organic relationships, but they still call it a scene the
time when we bring out the toys or get into that headspace."10

9
'Dominatrix Explains How 'BDSM Can Be A Form Of Meditation' (The Huffington Post, 2017)
<http://www.huffingtonpost.com/sandra-lamorgese-phd/bdsm-meditation_b_10673686.html> accessed 19
April 2017.
10
'25 Facts About BDSM That You Won't Learn In 'Fifty Shades Of Grey' (BuzzFeed, 2017)
<https://www.buzzfeed.com/caseygueren/ultimate-guide-to-bdsm?utm_term=.ji5vnOY84B#.rtxWvQA20M>
accessed 19 April 2017.

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Legal perspective of BDSM and the informed consent:

There is an article published last year, entitled Love Hurts: Sadomasochisms


Dangers, which discussed about an old man who have lost consciousness in a sex club and
have been sent to the emergency room. He has involved himself in a S/M scene by hanging
him arm from a cross. The harm which caused to him during this practice was so serious
that it took him several days to regain his consciences. This article even discuss about how
fortunate the man is to be alive, and continue by talking regarding the more unlucky
persons who have died during BDSM practices. Unsurprisingly, the primary message of this
article is, it seems that people shouldnt get into dangerous sex.11
Therefore, the public started to aware that the danger and risk of BDSM practice
cannot be ignored. This issue also has been discussed in UK. Of course, UK courts owe a duty
to safeguard and uphold UKs value. But, does this duty including BDSM which engaging by
the consenting adults? In the aspect of consensual sex, the purpose of sexual satisfaction
usually did not leave the permanent mark on the person who engaging in it. Yet, in kinkier,
informed consent of sex or sexual satisfaction is obtain from the acts that occupied part of
the law which is in grey area, one concerning to consent to bodily harm.12 This is obviously
similar with BDSM.

Under English law, the S/M or BDSM practices are deemed to be a crime and the
person engaged in these bear the criminal liability. The objective of these is that one who
acquire satisfaction from infecting pain should be sanction by law, disregard of whether it
was privately arranged or consensual. It will not deemed to be tommyrot to impose a
maximum limit on the injury level which might be a consequence of the consensual practice.
Thus, one cannot legitimately consent to the conduct that inflicted Grievous Bodily
Harm(GBH) and Actual Bodily Harm(ABH).13

The Offences against the Persons Act 1861 (OAPA) ruled the scope of the liability
under section 20 and 47. Under section 20, it provides that, which held that whosoever
shall unlawfully and maliciously wound or inflict any grievous bodily harm on any other
person, either with or without a weapon or instrument, shall be guilty of a misdemeanour 14
and section 47, it is an offence to commit an assault which caused ABH15 under OAPA. Once
the result caused by the act reached the threshold of ABH, a persons consent to the related
conduct will become inadequate to release the act from the scope of criminal law, only if
the class of the action is such that it have sufficient public interest to exempt it to be

11
Jennifer Sweeton, 'BDSM: Loving, Dangerous Or Deviant?' [2009] What's dangerous about BDSM?
<https://www.psychologytoday.com/blog/out-the-ordinary/200904/whats-dangerous-about-bdsm> accessed
19 April 2017.
12
'ItS Not The JudiciaryS Place To Stop People Having Kinky Sex - Legal Cheek' (Legal Cheek, 2017)
<http://www.legalcheek.com/lc-journal-posts/its-not-the-judiciarys-place-to-stop-people-having-kinky-sex/>
accessed 20 April 2017.
13
Zia Akhtar, 'Consent To Acts Of Self Inflicted Violence' (2016) Volume 4 Sado Masochism and Consent to
Harm: Are the Courts under undue pressure to overturn R V Brown ?
<http://www.westminsterlawreview.org/Volume4/Issue1/wlr32.php> accessed 21 April 2017.
14
Offence Against Person Act 1861, section 20
15
Offence Against Person Act 1861, section 47

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criminalised. Strictly speaking, only when the Parliament or court able to obtain some public
interest from preventing to criminalize the conduct in question will the putative victims
consent be adequate to exempt from criminal liability. Yet, case law has figure out that
injuries caused by the act for sexual satisfaction is not in the public interest; but it does not
adequately distinct how the interest of public serves to legalize other groups of conduct.16

In fact, the decision to prosecute any suspected criminal conducts depends on the
prosecution being in the public interest, and there is adequate evidence to prove that there
is a justifiable prospect of conviction. Nevertheless, in deciding whether the public interest
is served through prosecution inevitably involving the discretion on the prosecutors part. In
the S/M case, it is regrettable that, the moral view regarding the behaviour will often affect
the manner in which discretion is exercised. Not merely private voluntary sexual activities
prosecuted too readily, but also causing the case law incoherent and mostly undesirable.17

In Regina v Brown18, a leading case of the consent in a sadomasochistic assault,


where a group of men have been charged for the offences of engaging in the
sadomasochistic activities which were positively wanted, asked for, the acts to be done to
them,19 and all had consented to being involved over an extended period of time. Their
activities including, using the fish hooks to pierce the penile skin. But, none of them
complained about any of the activity they were engaging in, they were uncovered by an
unrelated investigation of the police.20 A question posed for the jury was whether the victim
have agreed with the conduct and whether the defendant believed that she consented. Yet,
under the House of Lords in Brown this is irrelevant. The consenting victims in Brown asked
for the court to rule their acts legitimate because they were consent with the acts. Each
judgement makes a separate conclusion on the different factors, and the three to two of the
decision in favor of convicting the offences of defendant under section 20 and section 47 of
OAPA which did not makes clear about criminal sanctions for public interest.21

Lord Templeman even emphasized that, it is an evil thing where the satisfaction is
derived from the infliction of pain. The consensual violent behaviour are still violent

16
Zia Akhtar, 'Consent To Acts Of Self Inflicted Violence' (2016) Volume 4 Sado Masochism and Consent to
Harm: Are the Courts under undue pressure to overturn R V Brown ?
<http://www.westminsterlawreview.org/Volume4/Issue1/wlr32.php> accessed 21 April 2017.
17
'ItS Not The JudiciaryS Place To Stop People Having Kinky Sex - Legal Cheek' (Legal Cheek, 2017)
<http://www.legalcheek.com/lc-journal-posts/its-not-the-judiciarys-place-to-stop-people-having-kinky-sex/>
accessed 20 April 2017.
18
Regina v Brown [1993] 2 All ER 75
19
'Recap Part 1' [2015] R v Brown twenty four years on, a critical secular perspective (part 2)
<https://lawyerssecularsociety.wordpress.com/2014/09/15/r-v-brown-twenty-four-years-on-a-critical-secular-
perspective-part-2/> accessed 20 April 2017.
20
'R V Brown [1993] 2 All ER 75' (Lawlims.co.uk, 2017) <http://www.lawlims.co.uk/2014/02/r-v-brown-1993-2-
all-er-75_8.html> accessed 20 April 2017.
21
Amy Kerr, 'Introduction' [2013] CONSENSUAL SADO-MASOCHISM AND THE PUBLIC INTEREST:
DISTINGUISHING MORALITY AND LEGALITY
<https://research.ncl.ac.uk/media/sites/researchwebsites/northeastlawreview/4%20Consensual%20Sado-
Masochism%20and%20the%20Public%20Interest%20Distinguishing%20morality%20and%20legality.pdf>
accessed 21 April 2017.

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behaviour and are thus prohibited under the law.22 Moreover, Lord Lowry and Lord Jauncey
adopted the approach of paternalism and conjecture on how allowing the appeal may be
dangerous when the violence of less conscientious the S/M practices have failed to be
sanctioned. Their approach of paternalistic is shown in the weight both judgments gave to
the possibility of corrupting others. Broadly speaking, paternalism is the publics
interference or an individual with another, against their will, and motivated or defended by
a claim that with the interference of the person, it will be better off or protected from
harm.23 The state play a major role as a benign parent. In a simple way, government is in
the position of power, just like the relationship between parents and their kids, government
owe the right and duty to overrule the preferences of those who considered to be not
capable to know their true interests. Therefore, in the field of politics and public policy,
paternalism is generally adopted in a wide sense, referring to any interference of the
government or any other authorities in the private decision-making and/or elitism.24

Contrastingly, in dissenting speeches, Lord Mustill specifically pointed that the


interest of public does not demand all such actions to be subject to the law by default.
Instead, a criminal sanction will only be justified where the factors related to a specific case
require it. The majority approach is thus concern on the context of S/M practices generally,
instead of whether the situation in the case meant that the use of criminal law was
demanded.25 It can be held that Brown upheld the principle of paternalism, as
criminalisation in such a circumstance invades the realm of individual where each
competent and responsible adult should reign supreme. As a leading case of this field, it
have been argued that Brown is an dissatisfying precedent. This is clearly in the fact that
almost two decades later, Brown remain validity as a contentious area in debate and legal
policy.26
R v Brown was affirmed in Sutton v Mishcon de Reya27, where there is an agreement
that the court must consider whether the agreement signed by the gay couples Staal and
Mr. Sutton on abusive behaviour is legitimate. The pairs deed about the cohabitation
allegedly tied them into a relationship of salve and master. Mr Sutton, a male escort and a
cabin crew act as a master, while Mr Staal, a rich businessman act as his slave. The S/M
practice causing Staal to hurt, and he reported his master to the police. When the issue

22
'R V Brown: Where Are We Now? | North East Law Talk' (Blogs.ncl.ac.uk, 2017)
<https://blogs.ncl.ac.uk/nelr/2014/03/06/r-v-brown-where-are-we-now/> accessed 21 April 2017.
23
Gerald Dworkin, 'Introduction Of Paternalism' [2017] Paternalism
<https://plato.stanford.edu/entries/paternalism/> accessed 21 April 2017.
24
'Paternalism In Social Policy When Is It Justifiable? Parliament Of Australia' (Aph.gov.au, 2017)
<http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1
011/11rp08> accessed 21 April 2017.
25
Amy Kerr, ' THE DECISION TO PROSECUTE CONSENSUAL SADOMASOCHISM' [2013] CONSENSUAL SADO-
MASOCHISM AND THE PUBLIC INTEREST: DISTINGUISHING MORALITY AND LEGALITY
<https://research.ncl.ac.uk/media/sites/researchwebsites/northeastlawreview/4%20Consensual%20Sado-
Masochism%20and%20the%20Public%20Interest%20Distinguishing%20morality%20and%20legality.pdf>
accessed 21 April 2017.
26
Dennis J Baker, 'Consenting To Grave Harm' [2008] RETHINKING CONSENSUAL HARM DOING
<http://www.austlii.edu.au/au/journals/UWSLawRw/2008/2.html> accessed 21 April 2017.
27
Sutton v Mishcon de Reya [2003] EWHC 3166

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came to the trial for an assult, Sutton argued that the contract which have been signed by
each other as giving rise to consent. In reaching a decision, the judge held that since the
consent under the agreement was invalid based on the fact that English law does not
recognize the slavery institution, the S/M activities engaging by Sutton and Staal was
considered as an assault under Section 47 OAPA. Hart J stressed that, a statement of trust
indicates an approach to express (husband and wife) sexual relationship in terms of
property and the relationship rooted from the lust of giving a sexual role play
verisimilitude. This was "an attempt to prove an illegal ideal" and was therefore unable to
enforce. So, the principle of British law is that, an unlawful contract which is invalid may also
override any consensual agreement where physical harm is an aftermath of S/M practice.28
Due to the removal of S/M from the Diagnostic and Statistical Manual of Mental
Disorder (DSM), the pressure became greater in overturn the judgement in R v Brown. This
is encouraging for those who think that SM is mainstream and normal, so even if violence is
accompanied by a commission, it is still acceptable. It needs to examine of the change in the
limits of acceptable behaviour that are considered to be a normal conduct which is no
longer subject to legal sanctions.29
Public Interest:

As stated above, criminal law operates to convict an act only if such conduct is
required in the interest of public. However, a main defect in English approach is that, to
determine how best to serve the interest of public is a subjective process, is affect by the
decision makers own value and beliefs. This is particularly on the case which consider in
consensual S/M activities where the exercise of discretion will be able to let the moral views
regarding the action in question influence the decision to prosecute.30
Required the prosecution to be in line with interest of public is a welcome feature of
modern criminal law, it is believed that the concept of interest pf public is malleable and
ambiguous. In these S/M or BDSM cases, it is recommended that British law have intervene
too readily under the excuse or camouflage of furthering the public interest, and did not
gave an appropriate consideration on whether the prosecution will have any measurable
interest in practice. 31Regrettably, the decision to prosecute the consensual violence in
depend upon mainly in the context of which the violence have been took place and will
show that the presumption which smile upon the prosecution where there is a probability of

28
Zia Akhtar, 'Consent To Acts Of Self Inflicted Violence' (2016) Volume 4 Sado Masochism and Consent to
Harm: Are the Courts under undue pressure to overturn R V Brown ?
<http://www.westminsterlawreview.org/Volume4/Issue1/wlr32.php> accessed 21 April 2017.
29
Zia Akhtar, 'Consent To Acts Of Self Inflicted Violence' (2016) Volume 4 Sado Masochism and Consent to
Harm: Are the Courts under undue pressure to overturn R V Brown ?
<http://www.westminsterlawreview.org/Volume4/Issue1/wlr32.php> accessed 21 April 2017.
30
Amy Kerr, 'Introduction' [2013] CONSENSUAL SADO-MASOCHISM AND THE PUBLIC INTEREST:
DISTINGUISHING MORALITY AND LEGALITY
31
YING HUI TAN [1993] Consensual sado-masochistic acts unlawful: Regina v Brown and others - House of
Lords (Lord Templeman, Lord Jauncey of Tullichettle, Lord Lowry, Lord Mustill and Lord Slynn of Hadley)
<http://www.independent.co.uk/news/uk/law-report-consensual-sado-masochistic-acts-unlawful-regina-v-
brown-and-others-house-of-lords-lord-1497180.html> accessed 21 April 2017.

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conviction. This did not take into account about whether the interest of public is best served
through abstain from the prosecution, in a strive to respect individual privacy and
autonomy. With this in mind, it is vital from the outset to question the proper function of
the criminal law and how this influence the problematic notion of interest of public. It can
be said, what is and is not required in the interest of public should reflect a balance between
respect for personal privacy and autonomy on the one hand, and the avoid of harm to
others. Yet, in practice, where S/M is concerned, the factor of public interest always
operates to conceal a paternalistic and moralistic view of socially acceptable conduct.32
A driving force behind upholding the interest of public is prevent harm to others.
When the conduct of interference with the freedoms and liberties of others has been
considered, it is absolutely justifiable to hold the individual criminally responsible to their
own actions. It was held that, as long as the conduct poses a risk of harm to public, the
prosecution is merited for being in the interest of public. Nevertheless, when the harm in
question has been consented to, it will generally be accepted that no crimes has taken
place.33
This is advocated by John Stuart Mills harm principle, which roughly said that the
sole rightfully and morally acceptable reason to interfere with a persons liberty to do what
he or she voluntarily chooses to do is to prevent the person from harming those non-
consenting others.34 Since the objective of this rule is to facilitate autonomy of individual,
meaning that it is to maximise a persons life choices, only a rational free individual is taken
to consent to coercion, as it is necessary for he or she to be able to lead an autonomous life
which is consistent with the enjoyment of similar rights for other people. Shortly, public has
no business in protecting the people from harms that they do not want or wish to be
protected from, so the interference in such cases will not be justified.35 Thus, it is to be
foreseen that, in the view of the role played by the judge as a defender of freedoms, the
autonomy-led approach defines much of the judge-made criminal law at the outer
boundaries. The focal crimes, for instance, criminal damage, assault, rape and so on are
constituted only upon the proof of the consent are absent, since only then will any private
interests be wrongfully set back. Correspondent, if there is no consent, then the "victim of
wrongdoing" to benefit from the criminal responsibility is not exonerated.36

32
Amy Kerr, 'Introduction' [2013] CONSENSUAL SADO-MASOCHISM AND THE PUBLIC INTEREST:
DISTINGUISHING MORALITY AND LEGALITY
<https://research.ncl.ac.uk/media/sites/researchwebsites/northeastlawreview/4%20Consensual%20Sado-
Masochism%20and%20the%20Public%20Interest%20Distinguishing%20morality%20and%20legality.pdf>
accessed 21 April 2017.
33
'So What Distinguishes Brown, Wilson And Lock?' [2011] BLURRED VISION: How Flawed was R v Brown?
<http://durhamprobono.blogspot.co.uk/2013/02/blurred-vision-how-flawed-was-r-v-brown_11.html>
accessed 23 April 2017.
34
Michael Lacewing, 'The Principle' [2017] Mills harm principle <http://documents.routledge-
interactive.s3.amazonaws.com/9781138793934/A2/Mill/MillHarm.pdf> accessed 20 April 2017.
35
Ben Saunders, '3. Expanding The Protected Sphere' [2013] Reformulating Mills Harm Principle
<http://www.storre.stir.ac.uk/bitstream/1893/18198/1/Reformulating%20.pdf> accessed 20 April 2017.
36
William Wilson, Criminal Law (5th edn, Pearson Education Limited 2014).

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This sentiment has been summarised by Feinbergs volenti non fit injuria maxim,
which is to one who consent, no wrong is done37, and obviously, consent alone will be
adequately to transform the legality of a conduct. With regard to this, the law has increased
the respect to each personals right to determine their own scope of life, make decisions
that reflects their own beliefs and choices, even if these beliefs are not shared by most of
the community. Individual can reasonably expect minimal state to interfere with their
personal autonomous decision to the extent that these decisions do not encroach upon the
freedoms and rights of others.38
This idea of respect the personal autonomy is more and more reflected in the law
which for majority part respect the individual as supreme over their own body. An example
case is R v Dica39 which held that, if an adult is liable to prosecution as a result of taking
known risks with his or her health, it seems strange because it should be limited to the risks
taken in the context of sexual intercourse, while they are however allowed to bear the risk
inherent in so many other respect of daily life.40
Human Rights:
In Brown, it can clearly see that the freedom of defendant to the sexual expression
was not be prioritised. Article 8 of European Convention of Human Rights(ECHR) has been
closely examined when Brown was heard at European Court of Human Rights.41This article
provides a right to respect a persons private and family life, home and correspondence, and
held that:

There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.42
The defendant in Brown was eventually took their case to Strasbourg in Laskey,
Jaggard and Brown v United Kingdom43. The Strasbourg court affirmed the judgement of
HL that the intervention to the Right to Privacy was carry out in the legal objective of the
"protection of health or morals"(para 35) as the applicants activities were of a " important

37
'Chapter 4: Harm To Others' (Victorianweb.org, 2017)
<http://www.victorianweb.org/philosophy/mill/ten/ch4.html> accessed 22 April 2017.
38
Amy Kerr, 'Introduction' [2013] CONSENSUAL SADO-MASOCHISM AND THE PUBLIC INTEREST:
DISTINGUISHING MORALITY AND LEGALITY
<https://research.ncl.ac.uk/media/sites/researchwebsites/northeastlawreview/4%20Consensual%20Sado-
Masochism%20and%20the%20Public%20Interest%20Distinguishing%20morality%20and%20legality.pdf>
accessed 21 April 2017.
39
R v Dica [2004] EWCA Crim 1103 [51].
40
'R V Dica' (E-lawresources.co.uk, 2017) <http://www.e-lawresources.co.uk/R-v-Dica.php> accessed 22 April
2017.
41
'Sadomasochism: Unleashed? | Solicitors Journal' (Solicitorsjournal.com, 2017)
<https://www.solicitorsjournal.com/comment/sadomasochism-unleashed> accessed 23 April 2017.
42
European Convention of Human Rights, Article 8
43
Laskey, Jaggard and Brown v United Kingdom (1997) 24 E.H.R.R. 39

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nature and degree", and of an "extreme character"; it was within the States "margin of
appreciation in order to protect its citizens from real risk of serious physical harm or injury".
(parah 41) and it was within "the prerogative of the State on moral grounds to seek to deter
acts of the kind in question"(para 51)44. The purpose infliction of pain in order to causing
pain was distinguished from the pain inflicted for an unnecessary non-sexual motive, but
this was opposed the need to promote of morality and health. The intentional conformation
of pain for the objective of causing pain was distinguished from the pain inflicted for an
ulterior non-sexual motive, yet, this was held to against the need to promote health and
morality. Wherefore, the interference of the court in the consenting adults in the bedroom
affairs will be justified as long as the actions are immoral behind the closed doors.45
When the court says that morality as dominant over the sexual expression freedom,
they provide a rule that a fundamental freedom is less vital than a subjective interpretation
of behaviour. Morality is a subjective structure, although it plays an important role in the
judiciary, but it should not be extended to the judgment on sexuality. Fetish and fantasy are
subjective and should not be subject to public scrutiny when acting in a consensual and safe
environment.46
There is a need of advice in whether the defendants in Brown before a jury will be
acquitted now. In R v Walsh (unreported)47 Mr Walsh, was accused for possessing of
extreme pornographic pictures which including 'urethral sounding' and fisting. The images
have been taken in a private sex party involved the consenting and willing adults. Walsh was
exonerate after his counsel claimed that the picture were not 'extreme' on the basis that
the conduct portrayed were fairly safe and is normal in the society of gay and they were not
'pornographic' images but individual records of a private even. In this case, the defendant
was acquitted of being suggested they might not be liable under criminal law if the
objections were conducted merely on the basis of their so-called homosexual behaviour,
they could raise a defence of the harm that was not serious or intentionally inflicted.48
In order to strike a proper balance between individual autonomy and the matter
regarding interest of public, the Court has not yet established a basic principle, but there are
difference between particular type of behaviour and their intention or expected
consequences. The different between injury is intentionally inflicted and harm which is
caused in the absent of intention appears to be the only certain principle that has arose in

44
'Laskey, Jaggard, And Brown V. United Kingdom' (Cirp.org, 2017)
<http://www.cirp.org/library/legal/laskey1997/> accessed 9 May 2017.
45
Zaina Mahmoud, 'Judges Need To Stop Being So Vanilla And Stop Meddling In Our Sex Lives' [2016] Its
not the judiciarys place to stop people having kinky sex <http://www.legalcheek.com/lc-journal-posts/its-not-
the-judiciarys-place-to-stop-people-having-kinky-sex/> accessed 23 April 2017.
46
'Fifty Shades Of Brown' (Criminalsolicitor.co.uk, 2017) <http://www.criminalsolicitor.co.uk/blog/2015/fifty-
shades-of-brown> accessed 23 April 2017.
47
R v Walsh 12 August (2012) at Kingston Crown Court
48
Sarah Beresforda, 'Implications For Same-Sex Pornography?' [2012] Obscene performative pornography: R v
Peacock (2012) and the legal construction of same-sex and gendered identities in the United Kingdom
<https://www.academia.edu/9108961/Obscene_performative_pornography_R_v_Peacock_2012_and_the_leg
al_construction_of_same-sex_and_gendered_identities_in_the_United_Kingdom?auto=download> accessed
23 April 2017.

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the case which decided upon which the public policy grounds of judges can be inferred
based on their reasoning.49
The recent law:
Furthermore, medical law has, particularly, recognised the significant of self-
determination, that is, by providing the competent adults the right to achieve their physical
aspirations even in the event of premature deaths. On the other hand, criminal law also, in
large extent, prevent to sanction the conducts which alter the body physically, where they
are undertaking it by option. If one wishes, for instances, to hurt their body through the
adornment of body, or to risk sustaining by way of boxing, their right of autonomy to do so
will be safeguard by enable their consent to release from the criminal liability of
intentionally caused the injury. Of course, if a person is considered as superior over the
body of their own, and their decisions which pertaining to his or her body do not influence
others negatively, then it will not be in the interest of public to regulate those decisions. 50
Thus, it is obvious that there is a legal willingness to esteem personals autonomy
over ones own body in physical conduct. Besides, in last few years, sexual freedom has
come to the fore, and the concern has divert away from the trend of sexual paternalism to a
more liberal view of sexuality as a personal affair. As von Hirsch and Simester pointed out
that, [i]n a free society, an individuals intimate life should be an affair which handle by the
person himself, in large extent free from state authorities mandatory interferencethe
adults intimate life, should prima facie be released from supervision of public and the
criminal laws intervention. 51
The circumscription of S/M as a crime has been reduced in medical science by the
academic discourse on the condition and practice of S/M which are no more consider as a
manifestation of disorders in mental. The affairs in fact commenced in 1994, the same year
with Browns decision when the American Psychiatric Association redefined and modified
sadism and masochism in the 4th edition of the Diagnostic and Statistical Manual of
Mental Disorders (DSM IV). This described that the consensual S/M conducts as no more an
indication of mental disorder. The DSM-IV Text Revision-TR (2000) pointed that the
behaviour of S/M is a mental and sexual disorder if the patient has engaged on these urges

49 49
Zia Akhtar, 'Consent To Acts Of Self Inflicted Violence' (2016) Volume 4 Sado Masochism and Consent to
Harm: Are the Courts under undue pressure to overturn R V Brown ?
<http://www.westminsterlawreview.org/Volume4/Issue1/wlr32.php> accessed 21 April 2017
50
Amy Kerr, 'Introduction' [2013] CONSENSUAL SADO-MASOCHISM AND THE PUBLIC INTEREST:
DISTINGUISHING MORALITY AND LEGALITY
<https://research.ncl.ac.uk/media/sites/researchwebsites/northeastlawreview/4%20Consensual%20Sado-
Masochism%20and%20the%20Public%20Interest%20Distinguishing%20morality%20and%20legality.pdf>
accessed 21 April 2017.
51
'THE DECISION TO PROSECUTE CONSENSUAL SADOMASOCHISM' [2016] CONSENSUAL SADO-MASOCHISM
AND THE PUBLIC INTEREST <http://www.book.dislib.info/b1-juristic/4165066-2-consensual-sado-masochism-
and-the-public-interest-distinguishing.php> accessed 22 April 2017.

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with a person who not consent about it and if the urges, sexual fantasies, or conduct
results in interpersonal difficulty or marked distress. 52

The Diagnostic and Statistical Manual of Mental Disorders (DSMV) accepted it as a '
paraphilia'. A paraphilia is refers to a condition characterized by abnormal sexual desires,
typically involving extreme or dangerous activities.53 This can be interpreted by law as a
normal conduct which carried out in order to fulfil the sexual satisfaction or pleasure. The
require for a greater tolerance for the BDSM by way of its redefinition has been construed
as share of legal and social discrimination in opposed to the various types of sexual
behaviour or propensity, and it has made the conduct carried out in an overdrive state as
the natural and possible result of attaining gratification whether it was carried out under a
homosexual interaction or a natural intercourse.54

It is obvious that criminal law has more and more reluctant to sanction the private
and sexual activity engaging by the consenting adult, if the conduct or activity do not
adversely impact on the parties other than the person who engaging in it. This is evident
when British has changed the law to boost the accomplishment of a high degree of delirium
in the achieving of sexual satisfaction. This can be evident in R v Wilson55, where the
defendant was accused of assaulting his wife which is contradictory to section 47 OAPA
1861. Defendant admitted of branding the letters on his wifes buttocks by using a hot knife.
At the final of this prosecution case, the judge ruled that the case to be answered was
bound by Brown. The appellant raised no evidence and was convicted.56
Later, defendant was permitted to appeal, and it was held that Brown is not an
authority for the assertion that consent is no defence to an accused under section 47 OAPA
1861 in all the state of affairs where ABH was caused deliberately. What the appellant had
done, if carried out by the consenting adult, did not involve an offence under section 47,
albeit that ABH was intentionally caused. Besides, the consensual behaviours engaging
among the couples, in the privacy of the matrimonial home, is not an appropriate matter for
criminal prosecution or investigation.57 This is similar with what the Canadian Prime
Minister Pierre Elliott Trudeau famously stated :
There is no place for the state in the bedrooms of the nation.

52
Zia Akhtar, 'Consent To Acts Of Self Inflicted Violence' (2016) Volume 4 Sado Masochism and Consent to
Harm: Are the Courts under undue pressure to overturn R V Brown ?
<http://www.westminsterlawreview.org/Volume4/Issue1/wlr32.php> accessed 23 April 2017.
53
'Paraphilias | Psychology Today' (Psychologytoday.com, 2017)
<https://www.psychologytoday.com/conditions/paraphilias> accessed 23 April 2017.
54
Zia Akhtar, 'Consent To Acts Of Self Inflicted Violence' (2016) Volume 4 Sado Masochism and Consent to
Harm: Are the Courts under undue pressure to overturn R V Brown ?
<http://www.westminsterlawreview.org/Volume4/Issue1/wlr32.php> accessed 23 April 2017.
55
R V Wilson (1996) 2 Cr App Rep 241
56
'So What Distinguishes Brown, Wilson And Lock?' [2011] BLURRED VISION: How Flawed was R v Brown?
<http://durhamprobono.blogspot.co.uk/2013/02/blurred-vision-how-flawed-was-r-v-brown_11.html>
accessed 23 April 2017.
57
'R V Wilson (1996) 2 Cr App Rep 241 | Criminal Law Case' (Lawteacher.net, 2017)
<https://www.lawteacher.net/cases/criminal-law/consent-Wilson.php> accessed 23 April 2017.

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The affairs in the bedroom of consenting adults are private matters, privy merely to those
involved in the debauchery.58

Moreover, it has also been acknowledging in legislation where the function of the
pornography is considered as an assistance in accomplishment in sexual behaviour and it
has been manifested in the promulgation of the Criminal Justice and Immigration Act 2008.
The statute handle with the matter of sexual fantasy and it expected that a conduct may be
aroused by sexual intentions that lead to satisfaction. Under section 66 of Criminal Justice
and Immigration Act 200859, it provide an additional defence for those who appear in
extreme pornographic images as direct participants in the conduct or conducts portrayed.
The defence will not be available for those who engaged in the creation of images of
bestiality or of necrophilia which include a real corpse, due to the absence of the ability to
consent by the animals and corpses.60

With the enactment of legislation, there is an accessibility of literature on the market


has that has brought S/M into the public region. There is an industry which try to locate an
audience or an leadership to project SM as a merchandise in enhance the pleasure in sexual
relations. Fifty Shades of Grey, a graphic novel has published in 2011. It depicts an
attractive sexual relationship with some draws on pornographic images involving BDSM. This
50 shades novel became a bestseller, and has arouse a film, 50 Shades of Grey and 50

58
'ItS Not The JudiciaryS Place To Stop People Having Kinky Sex - Legal Cheek' (Legal Cheek, 2017)
<http://www.legalcheek.com/lc-journal-posts/its-not-the-judiciarys-place-to-stop-people-having-kinky-sex/>
accessed 23 April 2017.
59
Criminal Justice and Immigration Act 2008, section 66
60
'Section 66: Participation In Consensual Acts' [2008] Further information on the new offence of Possession of
Extreme Pornographic Images <http://www.spannertrust.org/documents/moj-extreme-pornography-
information-print.pdf> accessed 23 April 2017.

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Shades Darker which will affect the BDSM technique not as a production of art house but for
the aim of general public's watching.61

It has impact on the person who wish to imitate the activities depicted the activities
of BDSM and there is an evident case which involved sexual ecstasy, violence which are self-
inducing and issues regarding the consent. In R v Lock 62. A couple had emulated the
activities described in 50 Shades of Grey where there was an agreement which consent the
man to tie the woman and whipped her continuously using a rope causing some bruise on
her necks and buttock. This has been imitate by Lock and Ms X, where there is a written
contract between them, to grant Lock the power over her for a specific time. Mr. Lock used
Ms.Xs wrist to fix her on a bolt on the floor, tied a rope to her neck, and hit her hips by a
rope. There were 14 bruises that had landed on the bottom of Ms.X. She then reports this
incident as an assault on her.63

Lock was accused under the OAPA section 47 of an assault inflicted ABH.
Nevertheless, he was acquitted latter under Section 47 on the basis that the participators
willingly engage in the bondage. Ms X may be deemed to have consent about the activities
by the acceptance and the steps were performed according to the details of the novel. The
book was fictitious, but it had received wide acclaim which caused the judges to give their
judgment on the ground of public interest to exonerate the defendant and to not convict
him under section 47 of the OAPA.64
Conclusion:

In conclusion, according to the various case law, it has clearly shows that Criminal
law is increasingly reluctant to regulate the private and sexual activity which have been
engaging by the consenting adults. Thus, it can be bold to assume that the defendant in R v
Brown will not be liable if this case happens in recent year. In my view, informed consent is
a very important element as it able to distinguish BDSM from an abuse. It was held that
BDSM include consent but abuse not. Besides, since every single person in the society owns
a right of privacy, the state shall consider the activity engaging by two mature and
consenting adults as a private activity, even bodily harm is inflicted. While, in regard in the
activities which will caused bodily harm is taken out under duress, which means absent of
consent, the state shall now make the person liable.

61
'Just How Realistic Is The S&M In 50 Shades Of Grey?' (Stylist Magazine, 2017)
<http://www.stylist.co.uk/books/just-how-realistic-is-the-sandm-in-50-shades-of-grey> accessed 21 April
2017.
62
In R v Lock 22 January (2013) in Ipswich Crown Court
63
'R V Brown Twenty Four Years On, A Critical Secular Perspective (Part 2)' (Lawyers' Secular Society, 2017)
<https://lawyerssecularsociety.wordpress.com/2014/09/15/r-v-brown-twenty-four-years-on-a-critical-secular-
perspective-part-2/> accessed 23 April 2017.
64
'R V Brown: Where Are We Now? | North East Law Talk' (Blogs.ncl.ac.uk, 2017)
<https://blogs.ncl.ac.uk/nelr/2014/03/06/r-v-brown-where-are-we-now/> accessed 23 April 2017.

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people-having-kinky-sex/> accessed 23 April 2017
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was R v Brown? <http://durhamprobono.blogspot.co.uk/2013/02/blurred-vision-how-
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15. 'Section 66: Participation In Consensual Acts' [2008] Further information on the new
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16. TAN Y [1993] Consensual sado-masochistic acts unlawful: Regina v Brown and others -
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Books:
1. Wilson W, Criminal Law (5th edn, Pearson Education Limited 2014)

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Cases:

1. Regina v Brown [1993] 2 All ER 75


2. Sutton v Mishcon de Reya [2003] EWHC 3166
3. R v Dica [2004] EWCA Crim 1103 [51].
4. Laskey, Jaggard and Brown v United Kingdom (1997) 24 E.H.R.R. 39
5. R v Walsh (unreported)12 August (2012) at Kingston Crown Court
6. R V Wilson (1996) 2 Cr App Rep 241
7. R v Lock 22 January (2013) in Ipswich Crown Court

Legislation:
1. Offence Against Person Act 1861 (OAPA)
2. Criminal Justice and Immigration Act 2008
Convention:
1. European Convention of Human Rights

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