R V Brown - Criticism

Criticism

There has been much academic criticism of the judgment's overtones. Baker (Dennis J. Baker, Glanville Williams Textbook of Criminal Law, (London: Sweet & Maxwell, 2012) at pp. writes: "The sadomasochists might argue that the telos of the participants’ activities in sadomasochism is merely to achieve sexual gratification. But every time they want to achieve the ulterior aim of sexual gratification, they need to harm each other. The harm has to be repeated each time the recipient wants to receive sadomasochistic pleasure. The two are inseparable—the sexual gratification can only be achieved while the harm is being inflicted. Per contra, adornment procedures only involve a one-off wounding, burning, etc., which results in a long-term benefit. There is nothing unreasonable about preventing people from repeatedly inflicting grievous bodily harm upon others, merely because they want to repeat the ephemeral sexual thrill it gives them. Nonetheless, it seems that this argument should not apply to actual bodily harm. Those who regularly inflict actual bodily harm on themselves by smoking and drinking excessively are not criminalized, nor are those who supply them with the instruments of harm. Similarly, professional athletes regularly subject their bodies to actual bodily harm, but recover." Marianne Giles calls the judgment: "Paternalism of an unelected, unrepresentative group who use but fail to acknowledge that power".