Law 'not designed to govern sexual activity'

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THE 19th-century legislation under which five members of a sado- masochistic group were convicted of assault was not formulated to regulate consensual sexual activity between adults, the House of Lords was told yesterday.

Opening an appeal by the men against their convictions, Ann Mallalieu QC told the Law Lords that all the acts had taken place in private between consenting adults. No one had required medical treatment or complained to the police, she said.

The five appellants belonged to a homosexual ring of mainly middle-aged men who took parts in acts of genital torture with nails, canes, branding irons, nettles and electric wires. The 15 ringleaders were jailed in December 1990.

The Court of Appeal reduced some of the sentences but upheld the convictions last February, ruling that consent was not a defence. The case is regarded as important, since it raises the issue of legal intrusion into private sexual activities between adults.

Miss Mallalieu, who represents Roland Jaggard, 44, a missile design engineer, and Saxon Lucas, 59, a lay preacher, said that the Crown had been wrong to use the 1861 Offences Against the Person Act to prosecute the men.

'The Act was not intended to regulate consensual sexual behaviour between adults in private, no matter how immoral or offensive that behaviour might be,' she told Lord Templeman, sitting with Lord Jauncey, Lord Mustill, Lord Lowry and Lord Slynn. Lord Jauncey intervened to point out that flagellation was a popular activity in the 19th century.

Miss Mallalieu said that the court should 'take a fresh view about what is required in 1992 as regards the role of the law in relation to private adult behaviour'.

The question which the Law Lords are being asked to examine is whether, after a sado-masochistic encounter, the prosecution must prove that a 'victim' did not consent in order to obtain a conviction for assault or wounding.

Miss Mallalieu argued that consent should be a defence unless the acts were conducted in public or led to public expense being incurred to treat an injury or compensate for a disability.

The group's activities came to light when police in an unconnected investigation found a video that they had made for private viewing. Miss Mallalieu said that although the video was unpleasant the violence portrayed was 'stylised'. Participants had agreed on the scenarios in advance. The hearing continues today.