Criminal Law - Sexual Offences - Essay Example

With reference to R v Brown [1994] 1 AC 212, Esposito asks “...is it the role of the courts to make a moral judgment under the mask of legal reasoning...” By; Insert your name Course/ Semester Professor’s name Institution Date due Although the law is defined as being objective, its interpretation and implementation are, subject to circumstances that surround each case. The ruling in the R v Brown [1994] 1 AC 212 case in which a group of homosexual men was tried and convicted on various counts of causing actual bodily harm and wounding each other for sexual pleasure was largely based on the Offenses against the Person Act 18611. During an unrelated drug investigation, police obtained footage of the defendants performing what appeared to be acts of sadistic torture. Convinced that the victims in the footage were tortured before being killed, police launched a murder investigation, which would later bring to light the real circumstances surrounding the video footage, as well as reveal the identity of the members involved. The men were consequently charged and convicted of the offenses against a person Act 1861 particularly section20 and 47. The chapters state that Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude” 2. However, the fact that all the accused underwent the torture willingly presented a contradiction as the law was not clear about such circumstances. Consequently, the judgment passed was seen as a moral judgment that was based on the courts disapproval of the defendants’ lifestyles rather than being based on legal principals. The courts held that defense of consent cannot hold where there is actual bodily harm resulting from the sadomasochist activities. The Regina -v- Coney; QBD 1882 case served as major casing point for the case and all other cases involving the consensual infliction of bodily harm that were tried after it. In its ruling, the Court for Crown Cases Reserved fond that the use of bare-knuckles in fights was grounds for causing bodily harm 3. Consequently, the men participating in competitive bare-knuckle fights were liable to face prosecuting under the offenses against the person act 1861 despite their consent in participating. Additionally, the court held that voluntary attendance of such fights was evidence that could compel a jury to convict the spectators for aiding and abetting an assault. Using this case, the court were justified in disregarding the defendants plea of consent in the R v Brown case4. However, although the two cases involve consensual crime, it was the nature of investigations, and type of evidence presented in the R v Brown case that led skeptics to believe the sexual orientation of the accused and their perceived immoral lifestyle was a major contributing factor in the court’s judgment. The definition of consent has however come into the review to remove nay ambiguity I their application. Consent according to the Sexual Offences Act 2003 is defined as an agreement by choice if the person has both the freedom and capacity to make such an agreement5. Consequently, if a defense of consent is presented, the defendant(s) must defeat the actus reus element of the crime thus render the action lawful as opposed to unlawful. Such a defense does not need to defeat the mens rea element of the crime 6 . However, such a defense does not apply to all crimes. Theft and murder crimes are excluded from applying the defense of consent. In some cases such as rape, assault and battery, the defense of consent may absolve the defendant of all liability. On the other hand, crimes such as ABH, GBH, and wounding apply a very restrictive approach to the defense of consent in that it is the defendant's conviction as to whether the victim consented that is analyzed. Additionally, in such cases, the presence of harm is crucial in determining judgment as the law stipulates that one cannot consent to personal harm 7. In the R v Olugboja [1982] QB 320 case, the appellant argued that the victim consented to the sexual act because she did not resist scream, or struggle. The court, however, dismissed his appeal and upheld his conviction on the basis that there was no way he believed the girl consented seeing as she was crying and was in no position to refuse his advances given the circumstances. Further, the court held that although consent involves a certain level of submission, submission in itself does not signify or indicate to consent. The R v Brown [1994] 1 AC 212 case involved both submission and consent. If the parameters of this case were to be applied, then the defendants could argue that the actus reus element, being consensual, is lawful under the defense of consent and that the repercussions of presence or absence of bodily harm are in fact irrelevant 8. Another pivotal argumentative case relevant to the R v Brown [1994] 1 AC 212 case is the R v Clarence (1889) 22 QB 23 case. In this case, the defendant who was the husband to the plaintiff was charged and convicted under s.47 and s.20 of the Offenses against the Person Act 1861. The defendant had knowingly infected his wife with a sexually transmitted infection through intercourse, which the prosecution argued constituted aggravated and grievous bodily harm to the wife. However, under the defense of consent, the overturned the conviction because by being a wife to the accused, it was implied by law that she had consented to sexual intercourse with the defendant. It was, therefore, irrelevant that she was unaware of her husband’s sexual infection. Although the position of the law has since changed to make the deliberate infection of a sexually transmitted disease a crime, this case laid the foundation for the dismissal of rape cases within marriage 9. However, unlike in the R v Brown [1994] 1 AC 212 case, the defendant and plaintiff were married and consequently protected by law. The defendants in the R v Brown case were promiscuous homosexual men who did not enjoy the protection of the law under marriage. Consequently, the consent in their case could not t the time be proved rather than by their word of mouth. Additionally, the nature of the bodily harm suggested a mens rea element that the courts in their ruling could not ignore. In conclusion, it is not the role of courts to make any form of moral judgment under cover of the law. However, the courts can indeed use the society’s moral inclination to sway judgments in cases where the law presents a gray area and is open to interpretation10. The R v Brown [1994] 1 AC 212 case is an impeccable example. Though partially swayed by the ethnic and moral nature of the crimes, The Courts In their judgment were within their right to uphold the conviction of the defendants. Bibliography Bibbings, L. and Alldridge, P. (1993). Sexual Expression, Body Alteration, and the Defence of Consent. Journal of Law and Society, 20(3), p.356. Cowan, S. (n.d.). The Pain of Pleasure: Consent and the Criminalisation of Sado Masochistic 'Assaults'. SSRN Electronic Journal. Gardner, J. (1994). Rationality and the Rule of Law in Offences Against the Person. Cam. Law. J., 53(03), p.502. Gardner, S., 1996. Appreciatin Olugboja. Legal Studies, 16(3), pp.275-297. Harris, D. (1994). Included Offences and the Offences Against the Person Act. Cam. Law. J., 53(03), p.467. Eriksson, M. (2011). Defining rape: emerging obligations for states under international law? Leiden, Martinus Nijhoff Publishers Lynch, A., 1978. Criminal liability for transmitting disease. Criminal Law Review, pp.612-625. Regina -v- Coney; QBD 1882. (2015). swab.co.uk. Temkin, J. (2002). Rape and the legal process. Oxford: Oxford University Press. Wertheimer, A., 2003. Consent to sexual relations. Cambridge University Press. Lambert, S. J. (2000). Westlaw database directory. Eagan, Minn, West Group. Read More