R v Brown
| R v Brown | ||||
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| House of Lords | ||||
| Decided on March 11, 1993 |
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| facts | ||||
| Lower courts | ||||
| decision | ||||
| Ratio decidendi | ||||
| occupation | ||||
| Majority opinion: Lord Templeman, Lord Jauncey, Lord Lowry | ||||
| Agreeing: | ||||
| Dissent: Lord Mustill , Lord Slynn | ||||
| Applied laws / precedents | ||||
R v Brown (1994) 1 AC 212 is a decision of the House of Lords from 1993, in which homosexual BDSMers were convicted under English criminal law for the practice of consensual sadomasochistic practices. The proceedings resulted in a landmark judgment by the European Court of Human Rights .
The term Operation Spanner was chosen at random.
Facts and lower courts
In 1987 there was a raid by the special commission "Spanner", during which video films with consensual, homosexual BDSM were also confiscated. In December 1990 the Court of Appeal sentenced 16 defendants who, on the advice of their lawyers, pleaded guilty. The performers were punished for Grievous bodily harm (GBH) according to Section 20 of the Offences against the Person Act 1861 (OAPA 1861) and assault occasioning actual bodily harm according to Section 47 of the OAPA 1861, the so-called Bottoms, to whom the injuries were inflicted, for aids . The sentences ranged from fines to suspended sentences to prison sentences.
Decision of the House of Lords
The House of Lords dismissed the appeal and upheld the Court of Appeal's decision by a majority of three to two. Lord Tempelman argued for the majority opinion:
“The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. [...] 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 uncivilized. "
“The violent acts of sadomasochistic encounters involve surrendering to sadistic cruelty and the degradation of the victims. [...] Society is entitled and obliged to defend itself against a cult of violence. The joy that derives from teaching pain to others is evil. Cruelty is uncivilized. "
Lord Mustill countered this for the deviating lords:
“[...] the issue before the House is not whether the appellants 'conduct is morally right, but whether it is properly charged under the Act of 1861. When proposing that the conduct is not rightly so charged I do not invite your Lordships' House to endorse it as morally acceptable. [...] What I do say is that these are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law; and that if these standards are to be upheld the individual must enforce them upon himself according to his own moral standards, [...] ”
“[...] it is not up to the House to decide whether the appellant's actions are morally correct, but whether it is rightly indicted under the 1861 Act. If I suggest that the act is unjustifiably charged, I am not inviting your lordships to find it morally acceptable. […] What I am actually saying is that these questions are of private morality, that the yardstick by which they are to be measured is not that of criminal law; and that - if you want this standard to be observed - the individual must enforce it according to his own moral standards, [...] "
consequences
In 1995 the Spanner Trust was founded. This foundation originally served to support legal proceedings before the European Court of Human Rights ; after 1997 the foundation generally lobbyed for BDSM and the change of laws in the UK.
On February 19, 1997, the European Court of Human Rights in Laskey, Jaggard and Brown v. the United Kingdom (1997) that each state can enact its own laws against bodily harm, regardless of whether the assault is consensual or not.
The process led to sadomasochists becoming increasingly networked both in Europe and in America. As a result, several new structures emerged, especially with regard to BDSM-relevant reporting. The judgment, initially written in English, was initially misunderstood in parts of the German subculture as a Europe-wide ban on SM. In response to these subculture communication problems, the “Keywords” news mailing list was created. In England, during the course of the proceedings, the SM Pride organization was set up in order to better protect the interests of sadomasochists and other sexual minorities in the future.
Two of those arrested died of suicide and several lost their jobs. In eight cases, prison terms of up to four and a half years were pronounced. Following the ruling, private BDSM parties and bars were raided in the UK.
The SM film comedy Preaching to the Perverted is a parody of and criticism of the Spanner judgment.
In June 2007 the British government used the decision to criminalize image and film material that depicts consensual behavior among adults as “extreme pornography” under the Criminal Justice And Immigration Bill .
Movies
literature
- Weait, Matthew: 'Fleshing it Out' in Lionel Bently and Leo Flynn Law and the Senses: Sensational Jurisprudence (Law & Social Theory) , Pluto Press, London, 1996, ISBN 0745310680
- Der Spiegel: 'GB: Deeply Ill', (50/1992) - December 7, 1992, online under Great Britain - Deeply Ill, spiegel.de .
Web links
- Judgment text (English)
- The Spanner Trust (English)
- Sex is not a sport, Consent and Violence in Criminal law (English)
- Conclusion one of those affected (English)
- European Court of Justice (English)
Individual evidence
- ↑ How do police operations get their names? In: BBC . March 25, 2008 ( bbc.co.uk [accessed September 9, 2015]).
- ↑ s. 20th
- ↑ s. 47
- ↑ cf. Anne-Marie Cusac: Profile of a sex radical - lesbian, sadomasochist author Pat Califia , The Progressive, October 1996, online at: Profile of a sex radical ( Memento from July 8, 2012 in the web archive archive.today )
- ↑ cf. House of Commons: Criminal Justice And Immigration Bill