LAW REPORT: Prosecution of sado-masochists necessary in a democracy

Laskey and others v United Kingdom; European Court of Human Rights; 19 February 1997

The prosecution of members of a group of sado-masochistic homosexuals for offences of assault and wounding, despite the fact that in each case the "victims" had consented to the deliberate infliction of pain, did not consitute an unjustifiable interference with their right to respect for their private lives, contrary to article 8 of the European Convention on Human Rights, since such interference was "necessary in a democratic society" for "the protection of health".

The European Court of Human Rights unanimously held that there had been no violation of article 8 of the Convention in the cases of Colin Laskey, Roland Jaggard and Anthony Brown.

The applicants were members of a group of homosexual men who took part in sado-masochistic activities, involving maltreatment of the genitals, ritualistic beating and branding. These activities were consensual and took place in private between men of full age. The infliction of pain was subject to certain rules, including the use of a codeword to call a halt to any activity, and no permanent injury or infection was caused.

The group's members made videos of these events for private use, and some of the tapes fell into the hands of the police. The applicants were charged with various offences including causing bodily harm and wounding contrary to sections 47 and 20 of the Offences Against the Person Act 1861.

After the judge rejected their argument that their consent to the assaults provided them with a defence to the charges, they pleaded guilty and were sentenced to between one and three years' imprisonment. The Court of Appeal ([1992] QB 491) upheld the convictions but reduced their sentences. The House of Lords ([1994] 1 AC 212) by a majority also dismissed their appeals, taking the view that a victim's consent was no defence to a charge under the 1861 Act and that it would not be in the public interest to create an exception for sado-masochistic activity.

The applicants contended that their convictions constituted a violation of rights guaranteed by article 8 of the Convention, which provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. 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.

The European Court of Human Rights said it was common ground that the criminal proceedings against the applicants constituted an "interference by a public authority" with their right to respect for private life, that the interference was "in accordance with the law" and that it pursued a legitimate aim, namely that of "protection of health or morals". The only issue was whether the interference was "necessary in a democratic society".

The state was unquestionably entitled to regulate the infliction of physical harm through the criminal law. The determination of the tolerable level of harm where the victim consented was primarily a matter for the state's authorities.

The court was not persuaded that the applicants' behaviour belonged exclusively to the sphere of their private morality and so fell outside the scope of the state's intervention. It was evident that the applicants' activities involved a significant degree of injury and wounding. Furthermore, state authorities were entitled to consider not only the actual harm but also the potential for more serious injury inherent in the activities.

There was no evidence to support the allegation that the authorities were biased against homosexuals. The majority of the House of Lords had based their decision on the extreme nature of the practices.

The reasons given by the national authorities to justify the interference were relevant and sufficient. Nor, given the degree of organisation involved, the limited number of charges finally included in the prosecution case, and the reduced sentences imposed on appeal, could the interference be regarded as disproportionate.

The national authorities were entitled to consider the interference "necessary in a democratic society" for the protection of health and there had been no violation of the Convention.

Start your day with The Independent, sign up for daily news emails
PROMOTED VIDEO
ebooks
ebooksA year of political gossip, levity and intrigue from the sharpest pen in Westminster
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Recruitment Genius: HR Manager

£25000 - £30000 per annum: Recruitment Genius: They are in need of a HR Manage...

h2 Recruit Ltd: Business Development Manager - HR Consultancy - £65,000 OTE

£35000 - £40000 per annum + £65,000 OTE: h2 Recruit Ltd: London, Birmingham, M...

Day In a Page

Surrounded by high-rise flats is a little house filled with Lebanon’s history - clocks, rifles, frogmen’s uniforms and colonial helmets

Clocks, rifles, swords, frogmen’s uniforms

Surrounded by high-rise flats is a little house filled with Lebanon’s history
Return to Gaza: Four months on, the wounds left by Israel's bombardment have not yet healed

Four months after the bombardment, Gaza’s wounds are yet to heal

Kim Sengupta is reunited with a man whose plight mirrors the suffering of the Palestinian people
Gastric surgery: Is it really the answer to the UK's obesity epidemic?

Is gastric surgery really the answer to the UK's obesity epidemic?

Critics argue that it’s crazy to operate on healthy people just to stop them eating
Homeless Veterans appeal: Christmas charity auction Part 2 - now LIVE

Homeless Veterans appeal: Christmas charity auction

Bid on original art, or trips of a lifetime to Africa or the 'Corrie' set, and help Homeless Veterans
Pantomime rings the changes to welcome autistic theatre-goers

Autism-friendly theatre

Pantomime leads the pack in quest to welcome all
The week Hollywood got scared and had to grow up a bit

The week Hollywood got scared and had to grow up a bit

Sony suffered a chorus of disapproval after it withdrew 'The Interview', but it's not too late for it to take a stand, says Joan Smith
From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?

Panto dames: before and after

From Widow Twankey to Mother Goose, how do the men who play panto dames get themselves ready for the performance of a lifetime?
Thirties murder mystery novel is surprise runaway Christmas hit

Thirties murder mystery novel is surprise runaway Christmas hit

Booksellers say readers are turning away from dark modern thrillers and back to the golden age of crime writing
Anne-Marie Huby: 'Charities deserve the best,' says founder of JustGiving

Anne-Marie Huby: 'Charities deserve the best'

Ten million of us have used the JustGiving website to donate to good causes. Its co-founder says that being dynamic is as important as being kind
The botanist who hunts for giant trees at Kew Gardens

The man who hunts giants

A Kew Gardens botanist has found 25 new large tree species - and he's sure there are more out there
The 12 ways of Christmas: Spare a thought for those who will be working to keep others safe during the festive season

The 12 ways of Christmas

We speak to a dozen people who will be working to keep others safe, happy and healthy over the holidays
Birdwatching men have a lot in common with their feathered friends, new study shows

The male exhibits strange behaviour

A new study shows that birdwatching men have a lot in common with their feathered friends...
Diaries of Evelyn Waugh, Virginia Woolf and Noël Coward reveal how they coped with the December blues

Famous diaries: Christmas week in history

Noël Coward parties into the night, Alan Clark bemoans the cost of servants, Evelyn Waugh ponders his drinking…
From noble to narky, the fall of the open letter

From noble to narky, the fall of the open letter

The great tradition of St Paul and Zola reached its nadir with a hungry worker's rant to Russell Brand, says DJ Taylor
A Christmas ghost story by Alison Moore: A prodigal daughter has a breakthrough

A Christmas ghost story by Alison Moore

The story was published earlier this month in 'Poor Souls' Light: Seven Curious Tales'