Criminal law is expressly concerned with the acts which cause unwanted harm on individuals. 1 Members of society take comfort in the belief that the presiding goal of the criminal justice system is to identify, deter, prevent, and punish those that jeopardize the overall integrity of the 'idyllic' society. It is argued that this irrefutable adherence to this social consciousness that the majority of the members of society uphold is what allows for a relatively stable community. However, if the imposition of the criminal justice system extends too far into the lives of individuals, this harmonious may cease to exist.
This is because it impedes on the autonomy of the people. The lines are often blurred when it involves the autonomous citizen and the rights they feel as an individual that they should have. It would presumably be just for the behaviour of a person on a public street to be censored to an extent that their actions do not offend others. In this scenario, it is fair for the law to dictate what is acceptable behaviour and what is not. But what if we extend the boundaries of the public sphere to that of the pseudo-private sphere2. Should our autonomy be traded in for protection?
And when does protection and interference by the criminal justice system start to compromise our own sense of autonomy? When it comes to the idea of sexual autonomy and state interference, these lines are further blurred. In order to appease the public and allow for some interference into their sexual autonomy, it is crucial for the courts to have more regulated judicial rulings. It can therefore be argued that citizens would be less likely to disapprove of a ruling when there is a risk of grievous bodily harm against the victim..
However, rulings based strictly on moral grounds of certain activities should not be applied in this case because that would interfere too much with the autonomy of individuals. This argument will be explored by the analysis of two cases which relate to a particular strand of sexual autonomy, sadomasochism. A brief overview of sadomasochistic activities include but are not limited to: inducing physical pain, torture, general maltreatment, but often leading to scarring or visible marks.
This is where the problem lies because the very nature of sadomasochism is to induce harm on another individual. To further complicate this already perplexing dilemma, the general understanding of sadomasochism is that participants consent to this maltreatment. One must therefore question the idea of 'consent', and whether it carries any weight in judicial proceedings. An agreement to engage upon this practise may have materialized, but what if the actions of the participants goes far beyond the scope of what was understood or 'consented' upon.
And as a result, participants succumb to unwanted grievous bodily harm. It therefore may be in the courts' best interest to wholly outlaw this act since harm is something that the law strives to prevent, in an effort to help protect citizens. A landmark case that will help to illustrate the complexities of this topic is found in R v. Brown. The premise of the case involves consenting adult male participants in acts of sadomasochism. In this case, the participants were found guilty with the justification of bodily harm.
It was held that, the defence that there was consent between the participants was not good enough. 3 Consent in this case is immaterialized due to the physical harm involved. 4 This is because sado-masochistic partners have no way of foretelling the degree of bodily harm which will result from their encounters. There was no good reason for the harming of another merely for the sexual gratification of the participants. And when it comes to public interest, potential for harm is just as relevant as actual harm.
5 In other words, the courts employed the harm principle to protect individuals from being subjected to bodily harm that extends beyond what was consented. And by outlawing these acts, this helps mitigate the occurrences of sex acts that go too far. Further analysis of this ruling shows that the judge in this case used a more objective way of reasoning in forming the conclusions of his ruling. This kind of ruling places a heavier emphasis on objective reasoning and the empirical ramifications of the criminal actions, and less on the moral issues in play.
This allows for the pacification of the public and the interference the courts impose upon the sexual autonomy of its citizens. It would be better accepted by society if the courts decided that the risk of harm is too great to allow these sorts of acts, because the majority of citizens have a social consciousness that feels that individuals should be protected from harm. This is in contrast to the idea of the courts disallowing these acts based on arbitrary moral principles that not all of society has a consensus on.