R v Wilson (Alan) [1997] QB 47

Key point

  • Suggests that sado-masochistic acts in a marriage is susceptible to the defence of consent

Facts

  • Wilson (D) branded his initials on wife’s buttocks with a hot knife at her request
  • D was convicted of s47 OAPA
  • D appealed on the basis of consent as a defence

Held (Court of Appeal)

  • Appeal allowed – consent was a valid defence

Russell LJ

  • The R v Brown judgment is limited to a ‘sado-masochistic’ encounter, it ‘is not authority for the proposition that consent is no defence to a charge under section 47 of the Act of 1861, in all circumstances where actual bodily harm is deliberately affected’
  • R v Brown itself recognised exceptions such as tattooing, there is no logical difference between what D did and tattooing
  • ‘It is not in public interest that activities such as the appellant’s in this appeal should amount to criminal behaviour’
  • Consensual activity in the privacy between married couple and in the home not a matter of criminal investigation

Commentary

There are two main lines of reasoning

  1. The activity fell into the exception of tattooing, while the activity in Brown did not fall into any of the categories
  2. Wilson and his wife were a married couple hence conduct was more morally acceptable