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Something about a spanner February 18, 2010

Posted by Fiona in Big things, Breaking the fourth wall, Law, University.

This post is about things you’re allowed to do, and things you’re allowed to agree to other people doing, and why the law doesn’t like spanking.  (It’s a laugh a minute round here, you know.)

One of the tricks I’ve been playing on myself to get myself to work for the last term (alongside rewards of yarn and, rather embarassingly, a sticker chart) is the concept of a Case of the Day – which means that I have to read a case every day, and think about it, and maybe read an article or two on it.  It tends to be something I’d have to read anyway, but at least I feel better for doing it.  Anyway, case of the day today is one called R v Brown, which is about sadomasochistic homosexuals, and came after a massive long campaign by the police with the rather glorious name of ‘Operation Spanner’.  Anyway, these particular sadomasochists got caught doing whatever they did – apparently it was fairly drastic, Operation Spanner was launched after the police got hold of a video of someone appearing to be tortured – and were prosecuted for various offences of grievous and actual bodily harm under s20 and s47 of the Offences Against the Person Act 1861.

They were convicted for various technical reasons that essentially boil down to: you can’t consent to GBH.  And even if you do the law doesn’t recognise it.  All well and good – perhaps a tad paternalistic, you might think, but there was absolute uproar at the time (this was about 1993) because there is quite a string of cases saying things that don’t quite add up – in Donovan in 1934, a man was acquitted for caning a 17-year-old girl fairly harshly, because she had consented to it in the context of sadomasochism.  So a lot of people thought – think – that whatever the reasoning, the defendants in Brown were convicted because the judiciary in 1993 was essentially a bit homophobic.  It’s still good law, so technically it has to be followed in cases that are like it – but a lot of judges these days seem to go out of their way to explain why any given case is not like Brown.

That’s not what I want to talk about here, though; what I want to talk about, and what Brown raises is what you can and can’t consent to, and what you should be able to consent to.  How far does personal autonomy go?  And if we say, you’re allowed to do whatever you like, as long as it’s not hurting someone else, on a more mundane level can you consent to be swindled?  Can you agree to give all your money away to someone who tells you it’s for investment or charity when really they’re about to spend it on a new car?  Can you consent to being given HIV?*  Can you consent to being shot in the back of the head?

I know what law students think.  I’ve spent a good part of this afternoon hearing what law students think about the HIV issue particularly, but frankly, we all think from the same sort of angle.  I want to know what you think.  What should we be allowed to consent to?  How far should it go?  Does the state being paternalist have its merits?

*There’s an interesting, and fairly famous example about this: that of the monogamous Catholic couple, who don’t want to use a condom for religious reasons, but where one partner has HIV.  If the other partner is happy to run the risk of contracting the disease, can we really say that they haven’t consented, or that they haven’t thought about it enough to be able to give an informed consent?



1. gflawrence - February 18, 2010

Absolutely. If you give your consent, you take responsibility for that consent – especially if you consent at the time and change your mind later.

If you’re being coerced into giving consent against your will, that’s a different matter, but that’s more of a case of somebody not having enough backbone, in my opinion … whether it should be the opinion of the law, however, I’m split on. Plenty of people are just weak and need protecting.

2. Fiona - February 18, 2010

What do you think about there being a defence of reasonable belief of consent? There is one – it’s used for all kinds of things, fairly notoriously rape. Personally, I think allowing universal consent without allowing the defendant to argue that they had reasonable belief of consent in the same context is worse than non-universal consent.

I’d disagree a bit about someone not having backbone, or just being weak. What if someone doesn’t know, or couldn’t possibly know, about the effects of agreeing to something? Taking HIV as an example, say someone tells you they’re negative, and on the basis of that you agree to have sex with them, and it turns out they’re positive. Say you had protected sex but the condom broke.

3. gflawrence - February 18, 2010

But that isn’t an issue of consent … You’re not consenting to HIV in that situation, you’re consenting to having (what was supposed to be) protected sex, which is different to consenting to unprotected sex with a HIV positive individual. I’d make a distinction. Same with reasonable belief – then the onus shifts to the doer of the action in their behaviour. (Sorry this isn’t in legal terms. The use of the word “doer” makes me cringe.)

4. Fiona - February 18, 2010

What I mean by reasonable belief is that the doer reasonably believes that done-to has consented. From the defendant doer’s point of view, the onus hasn’t shifted at all. As far as they’re aware, there’s consent.

The point about the HIV is, maybe they didn’t know exactly what they were consenting to.

5. annadegenhardt - February 20, 2010

“but that’s more of a case of somebody not having enough backbone, in my opinion ”

“reasonable belief is that the doer reasonably believes that done-to has consented.”

I have been in a situation like this. i was the done-to; it’s not a question of ‘not having enough backbone’, it should never be a question of that. There are some people who are lucky enough not to mind that their declaration of feelings will hurt someone else, there are people who don’t worry what the consequences will be of them saying no, of them putting up a fight when, for example, they feel pretty certain that by saying ‘no’ in a given situation it will only exacerbate it, and lead to something worse. That is difficult. So you say yes because you don’t know what will happen if you say no. Or maybe you try to say no, but you don’t want to come right out and say it because that would be difficult, upsetting, might fracture the relationship/friendship/situation, and your hints that “no we shouldn’t be doing this” are ignored, so you have to give in. You accept that you’re not going to be left alone until you let them have their way. It’s nothing to do with your backbone. Sometimes the do-er is too powerful. That’s coercion. It’s NOT a question of backbone: you absolutely cannot say that, because then you get to the logical extension of that argument which is that certain cases of rape which aren’t so much a violent assault as a psychological pressure, you’re saying that anyone who caves to that situation just wasn’t strong enough. Which is an appalling thing to suggest…

As for Fi, your HIV thing, I think if they know the risks, then that’s their decision. The state allows people to take risks like rock-climbing, or crossing roads by themselves (I don’t like roads) and that’s fine, so in these sorts of cases maybe that should be allowable. It’d be a pretty horrific law that banned anyone HIV positive from having sex. That’d be pretty invasive. But, I suppose, on the other hand, by consciously risking infection, you’re consciously risking ending up seriously ill and costing the state in terms of health care, which is less forgivable, so in response, I don’t know. I don’t know what the legislation would be that would allow for people to do that whilst also protecting them from it, or from the danger of coercion.

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