Sex, Bodily Harm and Consent: A Dworkinian Approach

Abstract

In 'R v Brown', the House of Lords decided that the consent of the victim is no defence to a charge of actual or grievous bodily harm inflicted during sadomasochistic sex. The same question has never been brought before an Australian court, but textbook writers regularly defer to 'R v Brown' on this point. This thesis considers whether 'R v Brown' should be followed in Australia. Academic debate since 'R v Brown' has largely been based on three separate legal philosophies: liberalism, which holds that a consent defence should be allowed; critical feminism, which argues that consent should not be allowed because sadomasochistic sex may just be another form of sexualised abuse of women; and conservative paternalism, which argues that consent should not be allowed because sadomasochistic sex provides no benefit, and much harm, to society and its values (and to the participants). This thesis treats 'R v Brown' as a hard case, in which neither statute nor precedent provides adequate guidance. Dworkin has proposed a method for resolving such cases, by considering the principles which underlie an area of law, and ruling in a manner consistent with those principles. Following this process, this thesis posits a hypothetical court, and invites three advocates - a liberal, a conservative, and a feminist - to argue that their philosophy best represents the principles underlying the laws of sexuality and laws of violence in Australia.