LAW REPORT: Prosecution of sado-masochists necessary in a democracy
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 ( QB 491) upheld the convictions but reduced their sentences. The House of Lords ( 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.
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