IS SOCIETY STILL SHACKLED WITH THE CHAINS OF A 1993 ENGLAND?: CONSENT, SADO-MASOCHISM AND R V BROWN

Abstract

Sadomasochism has traditionally been categorised as a deviant sexual desire, painted with the same brush of immorality that was applied to homosexuality and transvestism for decades. It has been denounced, not only by society, but also by the medical profession and the judiciary. In R v Brown, the House of Lords highlighted society’s revulsion for such practices and refused, as an issue of public policy, to allow consent to be raised as a defence by those who engage in such activities. In the 22 years since the decision, however, the weight placed on the protection of our bodily autonomy and freedom of sexual expression has significantly increased. The applicability of R v Brown in light of these changes is yet to be considered in Australia with any binding authority. This article seeks to provide readers with an insight into the likely outcome of an attempt to prosecute those who, in 2015, engage in sadomasochism. Ultimately, this article concludes that as a result of s 22 of the Criminal Law Consolidation Act 1935 (SA), construed in light of the increased value placed on protecting bodily autonomy, sexual self-determination and the preservation of privacy, a South Australian court, and to a lesser extent, all Australian courts, would recognise the consent of those who sustain harm in the pursuit of pain-induced pleasure.