R v Brown [1993] 2 All ER 75, UKHL
Citation:R v Brown [1993] 2 All ER 75, UKHL
Rule of thumb:Can a person agree in a contract for a criminal act to be done to them? No, this is not a valid term, and the person who carries this out is committing a crime. Essentially this results in money leaving the public purse when the person has to go to the taxpayer funded hospital so this is not justifiable.
Rule of thumb:Is a dominatrix legally allowed to assault their client? Any act by a dominatrix which could result in a real risk of a client requiring hospital treatment is committing a crime in doing this, and any contracts affirming that the client agreed to take the risk are irrelevant.
Background facts:
This case was a criminal prosecution in which contract law arguments were invoked. The facts were that a dominatrix, Ms Brown, was carrying out acts of sexual violence upon people, which could well have led to them needing hospital treatment (which is of course paid for by the taxpayer).
Parties argued:
The prosecution argued that this was an act of deliberate violence and that was a clear crime. Brown argued that her clients knew exactly what was going to happen and actively enjoyed this and freely contracted for it.
Judgment:
The Court rejected the arguments of Brown. It was stated that where the dominatrix carries out acts of sado-machoism which they know will actively harm the person, and lead to the person needing medical treatment, then this is a crime by the dominatrix and this contract is void under the principle of illegality. Acts of sado-machoism done by a dominatrix that do not necessarily 'harm' a person as such, and at worst could be called 'minor injuries' that a person somehow enjoys although do not lead to the person needing medical treatment, leading to the person on aggregate receiving a benefit, are not necessarily crimes; acts of sado-machoism on the other hand which actually lead a person to become harmed and needing medical treatment are indeed crimes however.
Ratio-decidendi:
'It is not clear to me that the activities of the appellants were exercises of rights in respect of private and family life. But assuming that the appellants are claiming to exercise those rights I do not consider that Article 8 invalidates a law which forbids violence which is intentionally harmful to body and mind. 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 uncivilised. I would answer the certified question in the negative and dismiss the appeals of the appellants against conviction’, Lord Templeman
'the activities (extreme sado-machoism causing harmful injuries) ... not ... exercises in respect of private ... life', Lord Templeman
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.