Feminist Legal Studies (2005) 13:97–122 DOI 10.1007/s10691-005-1458-1 MATTHEW WEAIT
    
    Ó Springer 2005
    
    HARM, CONSENT AND THE LIMITS OF PRIVACY
    
    ABSTRACT. Within the context of U.K. law, the right to respect for private life, articulated in Article 8 of the European Convention on Human Rights, and acknowledged more opaquely in domestic legislation and case law, is one whose scope is unclear. Nowhere is this brought into sharper relief than in cases where conduct which manifests a person’s sexual identity, or concerns her intimate relations with others, is prima facie criminal. In this essay I attempt, through a discussion of cases in which injury is caused in the context of relationships experienced intersubjectively as private, to explore the contexts in which the law is prepared to legitimate that inter-subjective experience, and where it is not. Using cases in which injury has been caused purposively (in S/M sex), and incidentally (through the reckless transmission of HIV during sexual intercourse), the essay argues that the law is prepared to respect the right to respect for private life only in so far as the private life concerned is one which reinforces traditional gender roles and relationship types; in short, a life that one would be prepared to live publicly. KEY WORDS: consent, criminal law, harm, HIV, privacy, responsibility, sadomasochism
    
    INTRODUCTION The right to respect for private life in the context of intimate sexual relations is one defined and delimited by law. It is therefore a right that is contingent on a legal determination that those relations are properly understood as private. The legal construction of privacy, and the boundaries of what is legally treated as private, is therefore a matter of fundamental practical importance – even if, as many feminists argue, privacy and ‘‘the private’’ are at best problematic and at worst implicated in the systematic oppression of women. What is legally determined to be private, and so beyond legitimate state interference, assumes particular importance where the consequences of not treating it as such results in the exercise of coercive powers by the state. This arises most obviously in cases where the conduct of the parties in an intimate physical relationship is, prima facie, criminal. If such conduct is treated as non-private the state
    
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    may legitimately punish those who engage in it; whereas if it is understood as private, it may not. This article explores the way in which the law constructs the realm of the private in the context of intimate physical relations – more particularly, those relations which involve the infliction of injury, whether such injury may reasonably be characterised as incidental (as where HIV or a sexually transmitted infection (STI) is recklessly transmitted during sexual intercourse) or purposive (as where injury is inflicted for the purpose of mutual sexual gratification). In doing so I hope to illuminate, by way of a discussion of autonomy, consent and harm, the way in which the right to respect for private life in law is contingent on conformity to established gender roles, traditional relationship types and heterosexual orientation. The article further argues that the right to respect for private life, as it is constructed within U.K. and European rights jurisprudence, is in itself both coercive and immanently ironic. It is coercive in that the protection this ‘‘right’’ provides depends on a willingness to live one’s private life according to the dominant mores and expectations of wider society. It is ironic because law, through the processes of investigation and adjudication, necessarily renders public what we may subjectively and inter-subjectively understand, and wish, to be private, even if law’s conclusion is that we were justified in our understanding. Put another way, the argument is that while we may have a right to respect for private life, that right has substance only to the extent that the private life we may wish to live is one that we would be prepared to live publicly.
    
    THE PROBLEM WITH PRIVACY It is a commonplace to note that privacy is a contested concept within both legal and philosophical literature, feminist and otherwise. There is little agreement either about its meaning, value or operation. Lawyers have typically drawn a distinction between the public and private dimensions of privacy, the former having broadly to do with the extent to which the state is entitled to violate a citizen’s presumed right to self-determination of the way she lives her intimate life, the latter with the protection which people are entitled to have against access, of both an informational and non-informational kind, by others (Inness 1992). This distinction is, in turn explored by
    
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    philosophers who debate whether privacy is, at heart, a matter of autonomy and control of the self or access to the self by others.1 The different domains in which privacy is deployed, and what it is essentially concerned with produces a lack of clarity that is reinforced both by (a) an absence of agreement about whether privacy is a conceptually distinct category, or one more properly understood as an amalgam of different rights claims; and (b) by dispute as to whether, if it is indeed distinct, it should be understood in consequentialist or deontological terms: in other words, whether privacy is valuable because of the personal and social benefits it promotes (such as freedom from media intrusion, or the right to enjoy sexual relationships of one’s choosing), or because it acknowledges essential human values (such as dignity, freedom of conscience and personal identity). For feminists these debates, though important, have failed to identify what is most problematic about privacy: that the private domain –comprising the personal, the reproductive, the domestic, the relational and the familial dimensions of people’s (and especially women’s) lives – has been identified as ‘‘the unregulated zone of life’’ and as such been excluded from mainstream political and legal debate (O’Donovan 1985). Similarly, conventional/liberal analyses of privacy as being concerned with in part questions of access have been criticised as assuming the boundedness of people, rather than their interdependency and connectedness (Nedelsky 1990, 1993). Although the boundaries of what is culturally and socially understood as private might shift (and have indeed shifted) over time, the symbolic and normative power of ‘‘the private’’ as a category that frames our perceptions of the world ensures its continued use in the distinctions drawn in law.2
    The legal and philosophical literature on privacy is extensive. Particularly relevant to the arguments made in this essay are the discussions in Neill (2001), which provide an insightful exploration of the relationship between autonomy and privacy, and the central role privacy plays in constructing our essential human dignity; and Inness (1992), whose sensitive approach to the interplay between privacy and intimacy has influenced my thinking on this subject. For an excellent overview of the core philosophical and legal issues, see the essays in Schoeman (1984). 2 While O’Donovan’s analysis remains hugely influential, it has been problematised and criticised by those who argue it is inconsistent with the fact that law sustains the private domain via its indirect regulation (see e.g., Graycar (1987–1988); Olsen (1985)). For some provocative interventions on the subject of the public/ private divide see, in particular, Boyd (1997).
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    Although such distinctions exist, and despite the sporadic attempts of some judges, English common law3 has, traditionally, recognised no distinct right to privacy.4 Instead, it has dealt with matters that might be understood instinctively as aspects of a more general right to privacy within established legal categories, such as the torts of trespass to land and chattels,5 and breach of confidence.6 It is this latter tort which has, where successfully pleaded, provided some degree of protection for people wishing to assert a privacy claim in the context of marital secrets7 and intimate sexual relationships.8 However, the absence of any recognition of a general right to privacy and – more particularly – any recognition that a privacy claim might operate by way of defence to a criminal charge, whether independently or so as to support or frame a defence of consent, has meant that those who engage in consensual conduct which they inter-subjectively understand to be private have been denied the opportunity to assert that understanding when one or both is charged with a criminal offence. This restriction on the assertion of a general right to privacy has been laid open to greater challenge with the incorporation of the European Convention on Human Rights (‘‘the Convention’’) by the Human Rights Act 1998, and has resulted in a significant change in
    Statute does recognise privacy in some contexts (e.g., the conditions for applying for search warrants under s.15 of the Police and Criminal Evidence Act 1984, and the right to access personal information held by public bodies under the Freedom of Information Act 2000 (on which see Birkinshaw (1996)). 4 The traditional approach is apparent in, e.g., Kaye v. Robertson [1991] F.S.R. 62; R. v. Khan [1997] A.C. 558 (per Lord Nolan at 577); and (most graphically) in R. v. Brentwood Borough Council, ex. p. Peck [1997] The Times 18 December (no right to privacy where local authority released video footage of the applicant’s suicide attempt). For more progressive views see. e.g., Derby v. Weldon (No. 2) [1988] The Times, 20 October (per Lord Browne-Wilkinson); Haig v. Aitken [2000] 3 All E.R. 80; and Douglas v. Hello! Ltd [2001] Q.B. 967 at para. 110 (per Sedley L.J.). Reform of the law relating to privacy has, in the U.K. context, been most explicitly addressed in the context of the appropriate limits to informational access and publication by the media (see e.g., Report of the Committee on Privacy, Cmnd 5012 (1972); Report of the Committee on Privacy and Related Matters, Cmnd 1102 (1990)). For general discussions of the scope of the right to privacy see Bingham (1996) and Neill (1999). 5 See, e.g., Entick v. Carrington [1765] 2 Wils 275; Fouldes v. Willoughby [1841] 8 M. & W. 540; Hewlitt v. Bickerton [1947] 150 E.G. 421; Costello v. Chief Constable of Derbyshire [2001] 1 W.L.R. 1437. 6 The first example of such protection in the English courts is Prince Albert v. Strange [1848] 2 De G & Sm 652. 7 Argyll (Duchess) v. Argyll (Duke) [1967] 1 Ch. 302. 8 Stephens v. Avery [1988] Ch. 449; Barrymore v. News Group [1997] F.S.R. 6000.
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    the way U.K. courts deal with privacy matters. Article 8 of the Convention provides that: (1) Everyone has a right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The exceptions incorporated into the expression of this right, and especially those concerned with the protection of health or morals and the prevention of crime, render it one that is peculiarly susceptible to curtailment in the context with which this article is concerned.9 Although it has been held10 that
    ... it would be too restrictive to limit the notion [of private life] to an ‘inner circle’ in which an individual may choose to live his personal life as he chooses and to exclude entirely the outside world not encompassed within that circle.
    
    And that
    Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.
    
    the ‘certain degree’ to which the E.Ct.H.R. refers is more properly understood as uncertain and elastic. The E.Ct.H.R. has indeed acknowledged a person’s physical integrity to be an aspect of her private life, so that a failure to provide laws which adequately protect it constitutes a breach,11 and has recognised the need to protect the right to self-determination so far as one’s sexual orientation is concerned.12 However these protections, framed as they are within a wide
    See Clayton and Tomlinson (2000) paras. 12.131–12.147, and (2003) paras. 12.141–12.145. 10 Niemetz v. Germany [1992] 16 E.H.R.R. 97 para. 29; approved in R. v. Worcester County Council, ex p. S.W. [2000] H.R.L.R. 702. 11 X. and Y. v. Netherlands [1985] E.H.R.R. 235. 12 Bru¨ggemann and Scheuten v. Germany [1978] 10 D.R. 100 (E.Comm.H.R.); Dudgeon v. U.K. [1981] 4 E.H.R.R. 149; Lustig-Prean v. U.K. [1999] 7 B.H.R.C. 65; Smith v. U.K. [1999] 29 E.H.R.R. 449. In A.D.T. v. U.K. [2000] 9 B.H.R.C. 112 the E.Ct.H.R. concluded that there was an interference with the right to respect for privacy where the criminal law imposed liability for homosexual acts in private where more than two people were present.
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    margin of appreciation, do not imply a willingness to allow selfexpression or conduct that might be construed as injurious to the public interest. The rationale for precluding the assertion of a right to privacy that trumps public interest considerations when it comes to conduct with which the criminal law is concerned is self-evident. Because the criminal law articulates a set of benchmark standards against which people may legitimately be judged, and because those standards reflect, in theory at least, the values of the communities to which they apply, it would be strange indeed were the law to abrogate its own jurisdiction – its own power and authority to judge – through deference to claims of privacy. This would amount, in effect, to the protection of true individual autonomy, a value that the law pretends to respect but which is ultimately its greatest threat (since it properly entails self-government, or self-determination beyond the law).13 More significantly for present purposes, it is not merely the value that we place in our bodily integrity which the law reflects through its unwillingness to allow us to injure each other, even where that might be inter-subjectively be understood (in S/M sex for example) as an expression of love, care and affection (Inness 1992), or where it is the product of risk-taking (as in sex which carries the risk of HIV transmission).14 Rather, its vigilant patrol of the public/private borderland, and its use of that distinction, reflects an immanent interest in sustaining and reinforcing the legitimacy and desirability of certain other values, conceptual categories, identities, relationships, and behaviours. It is to these that I now turn in order to provide the necessary background for my discussion of the reasoning in the legal decisions that form the main concern of this essay. AUTONOMY AND CONSENT I suggested above that autonomy was a concept/value that the law pretends to respect but which in fact represents its greatest threat because of its potential to deny and/or subvert legal authority. It is therefore only respected where its exercise reinforces values which themselves reinforce legal authority. This suggestion, which derives
    For a fuller discussion of these ideas, see Weait (1996). Here I disagree with MacKinnon’s position that since heterosexuality is grounded in relations of power and domination such understanding can never be freely reached (MacKinnon 1987).
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    from my interpretation of the decision in R. v. Brown15 (discussed later in this article), is one that I still believe assists our understanding of why the law prohibits certain forms of S/M sex, but permits non-essential cosmetic surgery and recognised violent contact sports (which, respectively, sustain gender stereotypes and celebrate the social value of certain kinds of dominance and submission). However, the fact that such a view of autonomy may assist in an understanding of the way law deploys it in this way in these contexts does not – I fully recognise – problematise it in the way that feminists have typically done so. For feminists the very notion of autonomy is problematic. On the one hand it is a pre-condition of agency, and therefore of potential utility in challenging oppressive and patriarchal socio-economic structures; on the other it is a value that has traditionally served to occlude or deny the importance of the relational, the (inter-)dependent, and the affective and whose socio-cultural effects have included the political prioritisation of the individual as a bearer of rights contra mundum. Among others, Jennifer Nedelsky has argued that the extent to which autonomy has any value or meaning, or is able to serve any feminist political or legal objective, is contingent on acknowledging its dependency on the corporeal and relational realities of human life (Nedelsky 1989). For her, and for a number of feminist scholars who have used or been influenced by her work (see, for example, Friedman (1997); Lacey (1998)), autonomy is a valuable analytical resource only in so far as its linkage to the physical and psychic domains is recognised. Only then can it contribute effectively to the possibility of a feminist politics in which a person’s integrity is fully recognised, and a legal system that is alert, sensitive and responsive to the felt experience of those whose integrity is violated or compromised by others. These insights have been hugely influential, and form an important counterpoint to the dominant liberal tradition which sees autonomy as having to do almost exclusively with ‘objective’ reality and the mental realm. They have also provided a theoretical position from which legal reform, especially in the field of sexual offences16
    
    [1994] 1 A.C. 212 (H.L.). For example, a man charged with rape in England and Wales must now show that his belief in consent was a reasonable one (Sexual Offences Act 2003, Section 1).
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    and domestic violence,17 has been able to develop (and, indeed, from which such reform can be constructively criticised).18 It is, however, arguable that there remain difficulties for advocates of this theoretical position when a person’s expression of embodied autonomy, of their integrity, appears to undermine rather than to sustain or nourish the embodied autonomy of those with whom they are in relations of dependency, or of love, care and affection (Inness 1992) – in other words, where it results in what might be termed harm.19 As a process, rather than an outcome (Urban Walker 1997) living, or attempting to live, a life of integrity necessarily involves interactions with others; and these interactions may have both positive and negative consequences for those involved. Similarly, the response of others (both human and institutional) to that life and those interactions may be critical to the point of judgement and proscription. It is also, I would argue, important to recognise that the extent to which a person is able to live such a life will, in part, be contingent on their socio-economic and civil status, and the (often) multiple and complex relationships of dependency, care and obligation that they have with others. Put in more concrete terms particularly relevant to the theme of this article, people may (in a context they believe to be private) be honest, open and communicative with intimate partner(s) in some respects and contexts but not in others. If it is a new relationship they may withhold information about known HIV positive status until they have established sufficient trust, or, if it is an established one, they may withhold such information for fear of rejection (and of any negative material consequences for them and/or their dependants); and for their partner(s) this may be information which they wish to have, while for some it may be information about which they would prefer to remain ignorant.20 In each of these situations, from each person’s perspective, the meaning, value and – importantly – the
    For example, the Domestic Violence, Crime and Victims Act 2004 makes breach of a non-molestation order a criminal offence (Section 1), extends the domestic violence provisions of the Family Law Act 1996 to include same-sex (Section 3) and non-cohabiting couples (Section 4), and makes common assault an arrestable offence. 18 For critical reviews of government policy in these areas see e.g., Temkin and Ashworth (2004); Bessant (2004). 19 The concept of harm is considered further below. 20 For comprehensive, empirically grounded, discussions of the reasons why people do or do not disclose their HIV positive status to others see Greene et al. (2003) and Klitzman and Bayer (2003).
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    implications of embodied autonomy vary. The same would, I suggest, be true of partners in a relationship in which S/M sex is practised. While there will, no doubt, be relationships where one or other partner accedes to requests for physical intimacy of an unwanted kind, there will be others where the same requests and accessions are desired; whereas the former conduct would justify legal intervention or prohibition on the principled grounds that the embodied autonomy/integrity of the acceding partner was violated (and is therefore a matter of legitimate public interest), the latter conduct would manifest its expression (a properly private matter) and should, I believe, be free from sanctions. It is in this latter context, and only there, that I believe one can (or should) deploy the concept of consent: where it amounts to the manifestation of a person’s embodied autonomy. I explore the way in which consent is in fact deployed by the law in cases of incidental and purposive injury later in this essay. Here, I would simply make a few preliminary observations. Just as I think we need to recognise that the exercise of embodied autonomy is framed by, and subject to, the nexus of social, cultural, political and economic factors in which a person finds herself implicated, whether by choice or circumstance, so the exercise of consent which is its expression is necessarily contingent on those same factors. Thus, it is undeniable that some women (and some men) in some contexts are unable to refuse consent to sex in any meaningful sense, and that rape law grounded in the traditional disembodied concept of autonomy fails, and will always fail, them. For such people it is unclear how legal regimes that require a man to establish his partner’s positive assent will in fact assist, despite the strong, principled (and to my mind incontrovertible) arguments in favour of such regimes (see, for example, Bronnit 1994a; Naffine 1994; Hall & Longstaff 1997; Lacey 1998). These issues also arise where consent, rather than being an element of the offence (as it is in rape), provides a defence if certain conditions are met. In the context of purposive injury sustained during S/M sex, the consent of an injured partner will operate in law as a defence if (and only if) the injury does not amount to bodily harm. In the context of incidental injury (such as the reckless transmission of HIV during sex), consent will operate as a defence if (and only if) there is consent to the risk of transmission. In each of these types of case there is a presumption that the conduct/consequence is unlawful, a presumption which the defendant must in effect, if not in law disprove.
    
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    This presumption of illegality reflects and reinforces another, deeper, presumption – that of the injured partner’s autonomy. The problem is that the law adopts a decontextualised approach to autonomy, as it does with respect to rape. But whereas in rape there are strong arguments for acknowledging and prioritising the nonconsenting partner’s perception and experience (in other words presuming non-consent), in S/M injury and reckless HIV transmission cases there are, I believe, strong arguments for adopting a more relational perspective. By this I mean that it is not simply the impact on the embodied autonomy of the person injured that needs to be taken into account when determining the legitimacy of sanctions. Instead, such legitimacy should depend on the context in which the injury was sustained, its meaning to them, the relationship between the injuror and the injured, and their knowledge of risk (from whatever source). Thus, to take a hypothetical example, there are those who would instinctively feel that a person who fails to disclose their known HIV positive status to a partner before having sex which carries the risk of transmission, and who in fact transmits HIV to that partner, should be subject to criminal sanctions. The absence of disclosure renders any consent invalid so that, alternatively, there was either non-consensual sex or physical injury of a kind and degree that was not consented to. However, although the moral iniquity of the person who fails to disclose may be absolute, our immediate response to the non-contextualised example may be different if certain facts are known. Thus we might think that, as a matter of principle, a husband should be criminally liable where he conceals his HIV status from his wife and infects her, and where his infection is the result of undisclosed adultery; but our response might be otherwise where a female sex worker with dependent children and no other means of financial support fails to disclose to male clients for fear of losing business, and where those clients are infected by her. If (and of course it is only if) our response is different in these two situations, this is – I suggest – because we recognise not only that consent is itself problematic (for the reasons set out above) but also that the provision of information that enables people to consent is also problematic – or, at the very least, needs to be problematised.21
    I recognise, of course, that a logically prior – and important – question is why the female sex worker in my example finds herself in a position where this is the work she must do to provide economic security for herself and her dependants. However, this essay is concerned with the equally valid question of how the criminal law does and should respond to such a person, given that these are her circumstances.
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    HARM If autonomy and consent are problematic in the present context, harm is no less so. As West (1997, Ch. 2) and Conaghan (1996, 2002) have argued, harm has typically been treated as something self-evident, as the obvious focus of legal redress, and not something that merits special interrogation. However, as these scholars have also demonstrated, understanding the way ‘‘harm’’ is constituted in and through law is critically important if we are to understand why certain kinds of injury are occluded or ignored (in particular those that represent ‘‘gendered harm’’) and others acknowledged. In the abstract, we tend to think of harm as something characterised by adverse effect – something that damages or spoils. Such a conceptualisation presupposes that the thing harmed, or to which harm may be done, is – prior to the harm – intact and perfect, and that such intactness and perfection has a positive value. It also presupposes that what is harmed is in some sense static, or in a state of equilibrium. When that thing is harmed, this stasis is subjected to negative dynamic force, its equilibrium disrupted. There is yet a further quality of harm. It is something experienced by a living being, corporeally or psychologically (we speak of damaging property, not harming it).22 Thus the concept of bodily harm suggests the prior existence of a body in a state of functional equilibrium, whole and inviolate, whose functionality, equilibrium and wholeness has been disrupted in some way through the agency of the self or another. Although it is rarely if ever expressed as such, it is this idea of harm that underpins the criminal law relating to non-fatal offences against the person.23 A deep cut, a broken bone, a poisoning, a bruised internal organ, psychological illness, infection with a disease – these are all examples of bodily harm which, if other conditions24 are satisfied, may provide the basis for a criminal charge. It is an idea of harm that is also apparent, implicitly or explicitly, in many feminist critiques of law concerned with the inherent limitations of the liberal
    It is interesting that whereas the law treats animals as property, so that intentional injury to them is classified as criminal damage, we would naturally speak of them as having been harmed. 23 See e.g., Sections 18, 20 and 47 of the Offences Against the Person Act 1861. 24 It must be established, for example, that the defendant caused the prohibited harm, and that at the relevant time they intended to harm, or were reckless as to its occurrence.
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    value of autonomy, and with law’s failure to acknowledge, respect and protect bodily integrity.25 What is interesting to me about the criminal law’s treatment of harm, though, is how injury – an empirically observable fact – is instantiated through the law relating to non-fatal offences against the person as an apparently discrete and meaningless moment or event; discrete in the sense that the law is concerned, in determining liability, with the very moment of impact on, or change in, the body rather than with context in which the impact or change takes place, and apparently meaningless in the sense that the inter-subjective understanding of the people involved as to what the injury represents to them, or the way in which it reflects their understanding of the kind of relationship they have.26 I say apparently, because although the law treats liability for injury as first and foremost a technical question, which may be answered through the application of rules and principles, I would argue that it is the context and meaning, or rather the law’s construction of context and meaning, which is critical to the question of whether such injury amounts to a harm, a public wrong, with which it should be concerned. PURPOSIVE INJURY The ways in which the law constructs context and meaning can be explored by revisiting the cases in which the domestic courts and the E.Ct.H.R. have been confronted with injuries sustained in the context of physical and/or sexual gratification. The starting point for this must be the cases of R. v. Brown27 and Laskey v. U.K.28 It will be recalled that in Brown a number of men were prosecuted and convicted for inflicting grievous bodily harm and malicious wounding which had taken place in the context of sado-masochistic sex. On appeal to the House of Lords they argued that the consent of those whom they injured should have provided them with a defence. The argument failed, on the grounds that the injuries inflicted were of too great a degree.29
    See discussion above. I explore this in greater detail elsewhere: Weait (2001). 27 R. v. Brown [1994] 1 A.C. 212 (H.L.). 28 Laskey v. U.K. [1997] 24 E.H.R.R. 39 (E.Ct.H.R.). 29 I have discussed this case in more detail elsewhere: Weait (1996). See also Bamforth (1994).
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    Lord Templeman was not persuaded by the argument that consent should provide a defence on the basis that people have a right to do what they want with their own bodies. In his view, there is a difference between violence which is incidental and that which is inflicted for the indulgence of cruelty. What the appellants did involved the degradation of their victims. Sado-masochism, to his mind, breeds and glorifies cruelty, and society is entitled to protect itself against a cult of violence. In similar vein, Lord Jauncey thought that it was not in the public interest that the acknowledged fact of consent should be available as a legal defence in this context. There was always the danger that, despite the existence of agreed code words, the purpose of which was to prevent injury going beyond what the person being injured had consented to, there was always the risk that more serious injury would occur. Given the kinds of activity in which the appellants were engaged (some of which involved the flow of blood from open wounds) there was the risk of HIV infection, and (equally, if not more, dangerous) there was the risk of proselytisation – inculcation into S/M as a way of life – and the possibility that others, more innocent, would become corrupted. In the minority, Lord Mustill was of the opinion that the activities of the appellants did not properly fall within the criminal law of violence, but should rather be understood as falling within the sphere of private adult sexual relations. He gave significant weight to arguments based on Article 8 of the Convention, and suggested that the House should revisit the question of whether the public interest required the punishment of those who had inflicted harm in private on a consenting recipient and where the purpose was sexual gratification. Lord Slynn, also dissenting, thought that this was an area in which responsibility for determining the parameters of liability was for Parliament, and that it was inappropriate for the courts to exercise this form of paternalism. The differing views of Lord Templeman and his brother judges provide a valuable insight into the ways in which harm, consent and privacy are understood in U.K. law. For those in the majority in Brown, the injuries suffered are harms with which the criminal law should be concerned because they are a manifestation of cultish cruelty and barbarism. Located within a discourse of risk, disease and danger, of innocence, immorality and corruption they are profoundly contextualised. The conduct amounted in his view to the most proscribed form of violence: torture. For the Lords, the fact of consent neither serves to neutralise the harmfulness of the conduct, nor does
    
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    it represent, implicitly or otherwise, the manifestation of embodied autonomy. Rather, it reinforces the culpability of those willing to participate in their own degradation, and of those prepared to take advantage of such willingness. Nor is the fact of consent the reason for the dissenting judgements of Lords Mustill and Slynn. Lord Mustill attempts to reclassify the conduct as sexual (and therefore inappropriately dealt with under the Offence against the Person Act (O.A.P.A.) 1861), and Lord Slynn resorts to more general concerns about policy and paternalistic intervention. Neither is prepared to take what would be the more radical step of concluding that where there is consent in fact it is inappropriate to treat such conduct, and its consequences, as harmful. The views of the majority in Brown prevailed when the case went before the E.Ct.H.R. in Laskey. It was accepted by the parties that the criminal proceedings against the applicants constituted an interference by a public authority with their right to respect for private life, that the interference was in accordance with law and that it pursued the legitimate aim of protecting health and morals within the meaning of Article 8(2). The success of the application therefore turned on whether the interference was ‘‘necessary in a democratic society’’. In addressing this question, the Court emphasised that the U.K. had, as would have any other contracting state, a wide margin of appreciation when determining the scope and application of the criminal law. Although it had been accepted by the parties that Article 8 was engaged, the Court observed that it was not every kind of sexual activity which took place behind closed doors that would fall within the right to respect for private life. In its view it was at least open to question whether sexual activity which involved a group of people, the recruitment of new members, the creation of specially equipped rooms, and the shooting of videos ought properly to be treated as private within the meaning of Article 8. The E.Ct.H.R. was unpersuaded by the applicants’ contentions that their conduct was a manifestation of their sexuality, that the participation was consensual, that no-one outside the group witnessed their activities, that no infection had resulted or permanent injury been caused, and that no complaints to public authorities had ever been made. It was similarly unpersuaded by the suggestion that concerns about moral corruption were speculative, and that they were being targeted as a result of their homosexuality. Accordingly, it held that the only relevant question was whether the state was entitled to
    
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    criminalise the infliction of physical injury – irrespective of context – and concluded that it was. For the E.Ct.H.R. a democratic society depends on the imposition of limits, and those limits are not to be determined by those who are members of it, even where such determination is exercised in the context of mutually consensual activity inter-subjectively experienced as expressive of identity and sexuality and therefore of an embodied autonomy. The themes explored in Brown and Laskey provide us with some insight into the ways in which harm, consent and privacy are understood within the context of the right to respect for private life; but they provide only a partial account. A more complex picture appears when we look at the reasoning applied in other domestic cases. In Laskey, the applicants relied in part on the case of R. v. Wilson.30 This Court of Appeal decision concerned a man who had been convicted under section 47 of the O.A.P.A. 1861 for having branded his wife’s buttocks with the letters ‘‘A’’ and ‘‘W’’ – his initials. Having been heard after Brown (in which branding had also been the basis of some of the charges) it was to be expected that the wife’s consent would not provide him with a defence –and this is what the trial judge concluded. However, the Court of Appeal quashed the conviction. Russell L.J. was excoriating in his criticism of the prosecution and of the wider implications of criminalising such behaviour. In his view, the facts of Wilson were entirely different from Brown. The wife had not merely consented to the injury, she had instigated it (as if this was not the case in S/M sex). He quoted approvingly the husband’s statement in interview, that his wife had said she was not ‘‘scared of anybody knowing that I love you enough to have your name on my body’’. The branding was, he thought, no different from tattooing – which the husband had wanted to do but said he did not have the skill to carry out. This would have been lawful, and so, therefore, should this be. Russell L.J. concluded: Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgement, a proper matter for criminal investigation, let alone prosecution. The distinction drawn by Russell L.J. with Brown rests explicitly on the affective dimensions of the facts before him. The injury took place within a marriage, within the institution that reinforces normative heterosexuality. The injury is a symbolic one that represents the tradition subordination of wife to husband. It marks his
    30
    
    R. v. Wilson [1996] Cr.App.R. 241 (C.A.).
    
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    ownership of her. It represents the positive values of fidelity and loyalty. It took place in their home. The fact that the injury itself is no different in fact from that which was inflicted on some of the men in Brown is not the relevant consideration. It was not the product of aggression, or done for sensual gratification, or witnessed by others (other than the doctor who reported the injury to the police), or in a specially constructed dungeon; it was therefore properly private, and not a harm with which the law should be concerned. These aspects of Wilson are critical to an understanding of why another case, also involving injuries sustained during sex, led to the opposite conclusion. In R. v. Emmett31, the appellant and his partner had been cohabiting, and at the time of the appeal had married. He too had been convicted under Section 47. He had asphyxiated his partner and set fire to lighter fuel which he had poured onto her breasts. In Wright J.’s words, the couple were ‘‘deeply involved in an energetic, very physical sexual relationship which both greatly enjoyed’’. The complainant, who Wright J. said ‘‘is hardly to be described as such’’, did not give evidence. As in Wilson, the only evidence came from her doctor. Emmett was convicted after the trial judge directed that – in the light of Brown – consent could not be raised as a defence, and his appeal against conviction failed. The Court of Appeal held that the facts were not properly comparable with those of Wilson, primarily on the basis that –although the charge was identical, and the injury similar – the risks associated with his conduct were far greater. As was emphasised in Brown, there was a risk that things could have got out of control and the consequences could have been more serious. In such circumstances consent was not available. On the face of it, Emmett may be read simply as authority for the proposition that where the risk of serious harm is unacceptably high, consent may not be used as a defence. But it is also arguable that such risk is merely one factor among a set of more implicit considerations. Emmett and his partner were engaged in activities more akin to those of the men in Brown. Their purpose, unlike, that of Mr. and Mrs. Wilson, was sensual pleasure, albeit of an extreme kind. At the relevant time they were unmarried. Their home was not a matrimonial one. Insofar as Mr. Emmett’s claim to the defence of consent, and his partner’s unwillingness to give evidence, may be seen as a claim to
    31 R. v. Emmett (unreported, 18th June 1999). See also, in the context of indecent assault, R. v. Boyea [1992] 156 J.P. 505.
    
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    privacy, that claim failed. The only concession (albeit a significant one, and one that might reflect the nature of the parties’ relationship) was that the sentence of nine months was suspended for two years – unlike the defendants in Brown, who received immediate terms of imprisonment. INCIDENTAL INJURY The cases considered so far are ones in which the injuries inflicted may all be characterised as purposive, and my argument has been that consent would appear to operate as a defence in law where the context in which they are inflicted may be characterised as private but not otherwise. In such contexts, injuries that are in all physical respects identical are not treated as harms with which the criminal law should be concerned. A rather different set of considerations arises where the physical injury is non-purposive and incidental, albeit that it occurs within the context of physical intimacy. The most obvious example of this is the transmission of HIV during sexual intercourse.32 Until 2003 there had been no prosecutions or convictions for the transmission of HIV in England and Wales.33 Then, within the space of six months, there were three. Each of the men was convicted under section 20 of the O.A.P.A. 1861 for transmitting HIV to female partners to whom they were not married, each was of black African origin, and each received long terms of imprisonment. The most important of the cases for our purposes is that of Mohammed Dica.34 Dica had been convicted under section 20 of O.A.P.A. 1861 for
    For a critical discussion of the application of the criminal law in this area see Weait (2001, 2004, 2005). 33 For discussions of the application of the criminal law in this area prior to 2003 see, generally, Alldridge (1993); Bronnit (1992, 1994a); Chalmers (2002); Dine and Watt (1998); Laurie (1991); Lynch (1978); Ormerod and Gunn (1996); Smith (1991); Weait (2001). 34 R. v. Dica [2004] E.W.C.A. Crim. 1103; [2004] 3 All E.R. 593. In January 2004, Kouassi Adaye, a South African man, pleaded guilty at Liverpool Crown Court to section 20 of the O.A.P.A. 1861 after a woman with whom he had had a sexual relationship was infected with HIV. He was sentenced to six years imprisonment for this offence and other deception offences relating to social security claims. In May 2004, Feston Konzani, who was originally from Malawi, was convicted under section 20 after three women he had had sex with were infected with HIV. He was sentenced at Middlesbrough to ten years imprisonment.
    32
    
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    recklessly transmitting HIV to two women. The Court of Appeal, allowing the appeal and ordering a retrial, held that the trial judge had been wrong in accepting the Prosecution’s submission that the harm inflicted on the complainants was such that the defence of consent was unavailable, a perfectly understandable conclusion given the ratio of Brown. In so holding, the Court dismissed the contemporary relevance of the decision in R. v. Clarence35 in cases where a person, through consensual sexual intercourse, recklessly infects another ‘‘from whom the risk is concealed and is not consenting to it’’. It further concluded that ‘‘to the extent that Clarence suggested that consensual sexual intercourse of itself was to be regarded as consent to the risk of consequent disease’’ it was no longer authoritative. However, ‘‘If ... the victim consents to the risk, this continues to provide a defence under section 20’’. The decision of the Court of Appeal to order a retrial was, in many respects, counter-intuitive – especially in light of the decision in Brown. Dica was a member of an ethnic minority community who had infected two women (one of whom left her marriage of 18 years to be with him) with a virus that permanently impaired their immune function – a consequence arguably far more serious than that suffered in Brown and Emmett, in the context of relationships which were non-matrimonial, and pursued for the purpose of sexual gratification. And yet, despite this, the Court of Appeal concluded that the trial judge had been wrong to deny Dica the opportunity to raise the consent of those to whom he had transmitted the virus as a defence. Why? The decision is a complex one, and is not explored in detail here.36 Suffice it to say that the Court considered that there was, in principle, a difference between the deliberate infliction of physical injury to which the person injured had consented (as was the case in Brown and Emmett) and engaging in consensual behaviour which carries with it the risk of injury. The consequence of the judgment is that where it is established that a person has consented to the risk of
    R. v. Clarence [1889] 22 Q.B. 23. Clarence, was authority for the proposition that there was no assault on a wife who had been infected with gonorrhoea by her husband. She had consented to the intercourse, and the fact that she would not have consented had she been aware of his condition was irrelevant. 36 For a defence of Dica’s conviction see Spencer (2004a, b); for a critical response to Spencer and the decision of the Court of Appeal, see Weait (2004, 2005).
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    HIV transmission (or the transmission of any other STI) the defence of consent is available to the defendant. Put simply, in these terms, the ratio of Dica appears simply to be the result of established judicial reasoning technique. The decision may be distinguished from case A because of reason B, therefore the conclusion is C rather than D. However, to read Dica in such terms, simply on the basis of a different approach to consent and risk, is to ignore the subtle ways in which it confirms rather than undermines the thesis I have put forward. To understand why this is so, it is necessary to have regard to the broader context within the court reached its conclusion. In delivering the judgment of the Court, Judge L.J. referred with measured approval to the views of Professor John Spencer, expressed after Dica’s original conviction and prior to the appeal hearing (Spencer 2004a, b). Spencer distinguished between those in steady or committed relationships and those who engage in casual or commercial sex. Whereas the former are entitled to trust that their partner will disclose the fact that they have tested HIV positive (or are infected with any other kind of STI) the latter have no such legitimate expectation. The consequence of this reasoning would appear to be twofold: first, that blame justifiably attaches to the husband who infects his wife (or vice versa) and to the man who infects his longterm partner, but not to the client who infects a sex worker (or vice versa), or to people who infect their partner in the context of casual sex; and, second, that the defence of consent should be available to people in the latter category but not the former. The apparent implication of Spencer’s argument is that the protection provided by the criminal law (to the person infected) and its censure (of the person who transmits the virus) is, and should be, somehow dependent on a moral or ethical judgment about the kind and quality of relationship that they have, rather than the simpler, factual, question of whether there has been consent to the risk of infection. Although the Court of Appeal expressed some sympathy for Spencer’s distinction, it did not recognise it as being a valid legal one. Having drawn a similar distinction between ‘‘casual sex between complete strangers’’ and ‘‘sexual intercourse between couples in a long-term and loving, and trusting relationship’’, the Court emphasised that the criminalisation of consensual risk-taking, as an interference with ‘‘personal autonomy’’, is not something which society has so far seen fit to do and, if it were to, such a significant change in the law would properly be a matter for Parliament.
    
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    Expressed in the this way, the judgement would appear to represent quite a radical departure from reasoning deployed by the judges in Brown, Emmett, and Wilson. However, it is arguably very far from that. Rather than expressing a willingness to treat harm as contingent on the presence of consent, and the risks attendant on sexual intercourse as belonging to a private domain beyond the legitimate intervention of the law, the court couches its conclusions in such a way as to ensure that the context of the relationship will be central to the determination of whether the defence of consent is available. It does this first by concluding that Clarence is no longer authority for the proposition that consent to intercourse is per se consent to the risk of attendant injury (a conclusion which is to be welcomed). Second, although it rejected Spencer’s suggestion that the availability of the defence should somehow turn on the kind of relationship the parties had, the court stated both that it was ‘‘unlikely’’ that a person would consent to the risk of a major consequent illness were they to be ignorant of that risk, and also that there could be a successful prosecution where a person who knew that he was HIV positive, recklessly transmitted HIV to a partner during sexual intercourse where ‘‘the risk is concealed’’ and where a partner is not consenting to it (that is, the risk).37 The implication of these two assertions is that a trial judge would presumably be entitled to direct a jury that they may, in determining whether or not there was consent to the risk of transmission (the only properly legal question), decide that this is unlikely where there was a lack of knowledge, and –in particular, though not necessarily –where this was the result of the defendant’s concealment. The consequence of this is, it is suggested, that in marriages and long-term relationships in which there is an assumption of fidelity and honesty, a jury will be far less likely to conclude that there was consent in the absence of disclosure than they will be where HIV is transmitted in the context of casual or commercial sexual relationships. If this is the case, then the private/public distinction I set out earlier remains true. By infecting a partner within a relationship acknowledged as one deserving of privacy, a defendant will in effect, have rendered the
    37 It should be noted that, in his commentary on the Court of Appeal’s decision, Spencer concludes that it strikes an ‘‘appropriate balance’’ on the basis that it ‘‘means that criminal liability arises where one partner, knowing that he is infected or he may be, fails to take precautions and infects a trusting partner who is unaware of it’’ (Spencer 2004c). This conclusion arguably goes further than the ratio of Dica (see Weait (2005)).
    
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    relationship a public one and thus properly of concern to the state. Just as HIV compromises the immunity of the person infected, so its presence within a relationship which was previously free of infection compromises the relationship’s immunity to coercive intervention, and legitimates the punishment of the person responsible for transmission. In contrast, those couples who pursue sexual pleasure outside established and socially legitimated relationship structures may be assumed to have consented to the risk of infection if it occurs, and censure is inappropriate. They are both responsible for the adverse consequences of their conduct, and their shared risk-taking is properly understood as a matter for them. Each is to blame, and neither can properly be said to have harmed the other. They are, by accepting the risk of transmission, exercising the ‘‘personal autonomy’’ of which the Court of Appeal speaks in Dica, and in so doing creating – paradoxically – a private realm in which the law should not intervene.
    
    CONCLUSION This essay has considered cases in which injuries are sustained in the context of intimate physical relationships. It has suggested that the treatment of those injuries as harms of concern to the criminal law depends not on the fact of consent, which operates in law as a necessary but insufficient condition for avoiding liability, but rather on whether such consent is given in a context which may be legitimately be characterised as private. The judicial interpretation of privacy, both at a U.K. domestic level and in the E.Ct.H.R., therefore assumes a fundamental importance. The analysis provided here indicates – unsurprisingly perhaps – that where injury is sustained in the context of heterosexual marriage, behind closed doors in the matrimonial home, and where the injury itself manifests traditional gender relations (as in Wilson), the courts may be prepared to treat it as private unless it is the consequence of infidelity (which, as suggested by Dica, renders the relationship public). But where the injury is sustained in the context of non-institutionalised relationships, whether hetero- or homosexual, pursued for the principal purpose of sexual gratification, the courts will treat such injury as a harm justifying punishment – unless, that is, both parties to the relationship can properly be said to have consented to risks incidental (rather than integral) to such gratification. In such a case Dica may be read to mean that the parties have negotiated a private space through the
    
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    exercise of ‘‘personal autonomy’’, and so should avoid the censure (and protection) of the criminal law. If this analysis is correct, then a claim to the right to respect for private life, whether that be used to frame a defence to a criminal charge, or appeal against conviction, on facts similar to those set out here is likely to fail unless the court is satisfied that the conduct, and its context, is in some sense socially and sexually conformist. Furthermore, since any claim to or about privacy – even where admissible – necessarily renders what was inter-subjectively believed to be a private matter one of public interest, open to the gaze and scrutiny of others, that claim has – in a very real sense – already, and paradoxically, failed. It is, of course, an open question whether the law’s construction of harm and privacy in these contexts is desirable, and whether the protection such a construction affords is worth the inherent obligation to conformity and publicity. It is certainly not suggested that harming people is a good thing; but it is suggested that we need to think more critically about what we mean by harm before we rush to judg(e)ment of those who injure others, whether purposively or incidentally (as I have used those terms). So far as purposive injury is concerned, there seem to me to be situations in which the felt experience of the injury for those who injure, and who are injured, may be such that little if anything is gained by exposing the observable fact of injury, nor of censuring those involved for a consequence whose meaning may be an expression both of personal identity and of a caring, respectful relationship. Similarly, I think we need to think more carefully, and more creatively, about our approach to the attribution of liability for incidental injury, such as the transmission of HIV or other infections, during sex. This is a particularly problematic area, ethically, politically and legally. While the focus in this essay has been the way in which the decision in Dica is informed by a complex discourse of privacy, consent and risk, there remain fraught difficulties about how the law should respond to such conduct. Elsewhere, I have engaged in a more detailed critique of the law’s approach to this subject (Weait 2001, 2004, 2005). Suffice it to say here that the criminal law’s use of the traditional analytical tools –harm, causation, consent, knowledge – to determine the parameters of liability seem singularly blunt when confronted by injury that takes place in a setting of physical intimacy, and where the way in which we would like our sexual partners to
    
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    behave (to communicate honestly, above all) is often unrealistic.38 By treating the transmission of HIV as simply a species of bodily harm, equivalent in legal terms to having one’s leg broken, questions of shared responsibility, for our own and our partners’ health, are occluded. The fact that the spread of HIV within the population is a matter, first and foremost, of public health39 is, ironically, transformed by criminal law into a straightforward matter of interpersonal responsibility;40 and, although prosecutions are justified as being in the public interest, incidents of transmission are, in effect, cast in terms of the obligations people (or rather certain people, in certain kinds of relationship) have, or should have, towards each other in their private lives. The concepts of privacy, autonomy, harm and consent have long been the subject of critical analysis in feminist legal theory, and their value as analytical categories questioned. In this essay I have simply attempted to show how, in the context of cases in which injury is sustained in intimate physical contexts, they provide a lens through which the law views and interprets the legitimacy of certain kinds of identity, and certain kinds of relationship. Whether that lens needs to be refocused depends on whether we believe that it is the lens which is at fault, or the law’s eyesight that is failing. ACKNOWLEDGEMENTS The ideas explored in this essay were first presented in the E.S.R.C. funded conference ‘‘Gender Auditing the Human Rights Act’’ at Kent University, U.K., in June 2004. I am grateful to the participants at that conference for their insights, and in particular to Nicky Barker, Marie Fox and Nicky Priaulx. I should also like to thank Catherine Dodds, Daniel Monk, and Peter Smit with whom I have discussed many of the arguments about liability for HIV transmission, and two anonymous reviewers for their incisive and provocative comments.
    
    See Greene et al. (2003); Klitzman and Bayer (2003). For discussions of the limited role criminal law can play in minimising the spread of HIV, see Sullivan and Field (1988); Gostin (1989); Dwyer (1993); Lazzarini (2002). 40 For recent explorations of the law’s approach to responsibility see Cane (2002); Dan-Cohen (2002).
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    Department of Law Keele University Keele Staffordshire ST5 5BG UK E-mail: m.weait@law.keele.ac.uk

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