Relationship Between Morality and Law: Analyzing Landmark Cases in English Legal System

LAW AND ETHICS
LAW AND ETHICS
Isabel Fontes
Author Note:

Answer 1:
In this answer, the relationship between morality and law has been discussed. The values
underpinning the legal system have been elaborated. The eminent advocate in American
Jurisprudence Mr. Justice Oliver W. Holmes stated that in order to achieve an understanding of
law in terms of scope and content by emphasizing the idea that morality should not be equated
with the contents of law because morality has no objective validity and moral terms, as used in
law, lose their ethical meaning (Lerner 2017). The purpose of this answer is to throw light on the
concept of law and morality by analyzing three landmark cases of English legal system.
The first one, popularly known as ‘Operation Spanner’ is the case of R v Brown (1993)
has to be analyzed. In this case, a group of men were involved in consensual sadomasochistic
sexual acts that resulted into actual grievous bodily harm. None of the men complained against
anyone to the police. However, the prosecution acted upon a video of the encounter. They had
been involved in this for the past 10 years. The main issue involved in this case was whether
actual bodily pain and grievous bodily pain can be consented into sexual acts where both
pleasure and pain are imposed simultaneously. As opposed to the actions being criminal offences
and the consent of the ‘victim’ being irrelevant. The house of the Lords decided in negative
stating that consent could not act as a defence to offences under sections 20 and 47 of the
Offences against the Person Act 1861 (OAPA). The judges held that such acts are unlawful, their
judgment was based on moral opinions and the appellants were convicted. The question of
appeal which the House of Lords was to consider was when one person wounds another causing
actual bodily harm on him in course of a sadomasochistic act, is required by the prosecution to
prove lack of consent of the latter before proving the offence of the former under section 20 or

section 47 of OAPA 1861? The Lords by a majority negated this holding that consent cannot act
as a defence to offences under those sections of the said Act.
In the case of R v Emmett (1999), the appellant while engaged in sexual activity with his
female partner, covered her head with a polythene bag. His partner consented to such act and he
had tied at her neck with a ligature and further tightened it to her level of tolerance. Due to such
tying up, she suffered from subconjunctival hemorrhages in her eyes and some petechial bruising
around her neck (Ando et al. 2017). The appellant was held with assault causing bodily harm.
Her consent did not provide defence to the appellant. He appealed in the Court of Appeal but it
dismissed it. The court here applied the decision of R v Brown and held that the consent of
women to these types of events cannot give defence to her partner. The general principle
followed by court here is violence comprising of deliberate and intentional bodily harm is
unlawful not considering that it is the result of the sexual gratification of one or both partners.
The case of R v Wilson (1996) is another sadomasochism case where the man used a hot
knife to make the initial of his name on his wife’s buttock. The wife has full consent to this act.
He was convicted initially following the case of R v Brown but later he was released on appeal
as the consensual activity between husband and wife in the privacy matrimonial home was not a
matter of criminal investigation or prosecution. In this case Mrs. Wilson not only gave consent to
her husband to brand the initials on her buttocks but she instigated him also. Her husband did not
wish to injure her but assist her to fulfill her wish. Moreover, such branding was similar to
tattooing and cosmetic beautification instead of causing pain for sexual gratification. Hence this
case did not attract provisions of section 47 of the OAPA.

All the above cases are examples of sadomasochism acts. Sadomasochism is the
amalgamation of the words ‘sadism’ and ‘masochism’ (Agargun 2016)). Sadism indicates taking
pleasure and satisfaction by causing pain to another and masochism denotes taking pleasure in
pain caused by the former person (Paulhus 2016). Sado-masochism includes both pain and
pleasure together. It involves sexual activities between two or persons where one or more
persons inflicts pain by various means to another person or persons. It is an outcome of love or
sex, and not of dislike, hatred or force. From the outsider point of view, sadomasochists seem to
be psychopaths but they are also like another category of persons existing in this world. It falls
under the category of BDSM which mainly includes bondage and discipline, domination and
submission, and sadism and masochism (Ryan 2018).
British law did not recognize the act of giving consent to actual bodily pain. They are
considered illegal, even between adults who are consenting. For the smooth running of a society,
some laws and control must be there. Society should always protect itself from violence. Cruelty
can never be encouraged anyway. The decision of R v Brown attracted a lot of criticism. The
case involves homosexual white men and the judgment was given at a time when homosexuality
was not so widely accepted.
The question that is common to all the above mentioned cases is whether consent is a
defence in actual bodily harm or not. However, the court has allowed consent in some cases as a
good defence like in case of ‘horseplay, surgical procedures, body modification by tattooing,
piercing, surgery and others. Actual bodily harm can be consented to only when questions of
public policy involved like injury caused in wrestling or boxing matches. Grievous bodily harm
can never be consented to. Sadomasochistic acts causing actual bodily harm are not covered