Dodgy Defences Part One: Consent

In 2017, England and Wales celebrated fifty years since the passing of the Sexual Offences Act 1967. The Act brought in a change to the law which had, according to many media reports, decriminalised male homosexuality, and brought in a new era of freedom in which gay men no longer had to fear arrest and prosecution. That is a lie. The decriminalisation was partial, stating that both parties had to be be over the age of twenty-one (the age of consent for heterosexual sex was sixteen), and that all sexual activity had to be conducted in private. I say 'both parties' because the law also stated that "(2) an act which would otherwise be treated for the purposes of this Act as being done in private shall not be so treated if done - (a) when more than two persons take part or are present". This notion of 'in private' was interpreted extremely narrowly, so that two men could also be prosecuted if they had sex in a locked room in a house where other people were present in other rooms. Much the same for hotels.

Research conducted by gay rights campaigner Peter Tatchell indicates that in the decades following partial decriminalisation, at least 15,000 gay men were convicted of homosexual acts and that "the remaining anti-gay laws were policed more aggressively than before by a state that opposed gay acceptance and equality". Filming or photographing homosexual acts was also a prosecutable offence and Tatchell points out that as late as 1998 seven men in Bolton were convicted under this law. The law could also still prosecute men for soliciting or "loitering in a public place with homosexual intent".

Derby Daily Telegraph, 31st January 1986

In 1954, Tatchell writes, there were 2,034 recorded offences of gross indecency. In 1989, there were 2,022. The 1980s saw an increased fixation on notions of 'family values', driven by Thatcher and her government who were determined to prove wrong anybody who believed that they had "an inalienable right to be gay". It is also worth noting that those charged were named in newspapers.

Newcastle Journal, 19th September 1989

It was against this backdrop that a small group of men placed a few adverts in gay publications in the late 1980s. They all enjoyed sadomasochistic activities and were seeking others to join them. The adverts caught the attention of Greater Manchester Police, who initiated Operation Spanner, and eventually raided a property belonging to one of the men. At that property they found a number of video recordings of SM activity, some of it very extreme and involving genital torture. Indeed, it appears that the police initially believed that one of these videos was a snuff film, depicting an actual murder.

The investigation that followed the raid involved multiple police forces until it was eventually handed over to the Obscene Publications Squad at Scotland Yard in London. Fifteen men ended up in the dock. Of course, they had all consented to the acts in which they had taken part. But things were not that simple. Consent is only a valid defence in certain crimes, such as rape, in which consent "will absolve the defendant of criminal liability". The law does not recognise, however, that an individual can consent to being harmed. The exceptions to this are for legitimate medical procedures, or for tattooing and body piercing. Consent cannot be used as a defence if the harm is perpetrated for the sexual pleasure of either party. Presumably, this mean that piercing is only legal as long as it doesn't turn you on.

Aberdeen Press and Journal, 20th December 1990

In December 1990, five men were convicted of a variety of charges involving ABH and wounding, aiding and abetting in those offences, and producing and publishing various obscene material. They received sentences of between two and five years imprisonment and they subsequently lost at the Court of Appeal. The men were given leave to appeal to the House of Lords, where their conviction was upheld 3:2. Lord Templeman, one of those who upheld the conviction, stated that

"society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised"

The other judge who upheld the ruling, Lord Lowry, believed that

"sadomasochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life"

Even Lord Mustill, the dissenting judge, believed that there was no question that the men's actions had been morally wrong, but that it simply was not a matter for criminal law. All of this seems a little peculiar considering the words of the judge at the main trial, the excellently named Lord Rant, who insisted that "the unlawful conduct before the court would result equally in the prosecution of heterosexuals or bisexuals. The homosexuality of the defendants is simply background."

Some of the sentences were reduced, seemingly on the ground that the men may have been genuinely unaware that their activities were illegal, but even the European Court of Human Rights upheld their convictions in 1997.

And so it seemed that the law had been made quite clear. In 1996, however, a case called R v Wilson came before the courts. A woman (V) had asked her husband (D) to brand his initials onto her buttocks with a hot knife. D did so and when V's skin subsequently became infected, she went to see her GP. The GP reported the matter to the police and D was charged with ABH.

D was found not guilty and the wife's consent was accepted. Indeed, the act of branding was considered to be closer to tattooing than anything and the court felt that "consensual activity between husband and wife in the privacy of the matrimonial home was not a matter for the court".

Make of it all what you will. 

Next week, another example of a dodgy defence. Is someone guilty of murder if they genuinely believe that the person they are shooting is actually a ghost? Dodgy Defences: Mistaken Belief