A Bodily Boundary

Welcome to Red Herrings!

This week, the Red Herrings explore the law of consent with a special guest! What happens when injury is agreed, but the law still says no?

Hosted by Brittany Warren & Joccoaa Gray

Sound Engineer & Co-host Christopher Brown

Edited by Joccoaa Gray

Sources:

Rhiannon Frowde’s academic review in The Mason Institute blog named ‘A Painful Precedent? Crown against Brown, Criminality and Consent. 

British Newspaper Archive including The Scotsman

Hansard

Transcript

SPEAKER_02 0:01

Welcome to Red Herrings. I'm Jacoa, Master's student in law and human rights, host of True Crime Club Newcastle, and creator of True Crime Forum Newcastle.

SPEAKER_00 0:12

Hi, I'm Brittany. I have two degrees in history and 15 years experience in genealogy. We're the red herrings.

SPEAKER_05 0:20

Well, well, well. What do we have here? Two red herrings and the catch of the day. Don't forget about me.

SPEAKER_02 0:26

Hi, Chris! We're the red herrings.

SPEAKER_05 0:29

And Chris.

SPEAKER_02 0:32

Hello, you two. So we should mention we may have a strange voice on the podcast today. Yeah. Brittany has abandoned Chris, similar to how she uh he abandoned her a few weeks ago at Ghost Kia.

SPEAKER_03 0:45

It's only fair.

SPEAKER_02 0:48

Today we have our very, very, very good friend. Say hi. Hello. Oh, hello. Isn't she a cutie? I'm very excited to be here. She is papping herself. Don't let her lie. She is shitting.

SPEAKER_05 1:10

It sounds very excited to me. I'm excited.

SPEAKER_02 1:12

You have the voice of an angel, darling. So you'll be fine. Uh thank you very much. Okay. Don't move your mic. Stop touching the mic. I'm finding my position, alright? Sorry. Novice. Okay. Quick trigger warning for this week's episode.

SPEAKER_05 1:28

We've never had a trigger warning before. This must be bad. Oh my god.

SPEAKER_02 1:33

Well, I'll let you be the judge of that later. I would highly recommend hanging around though, listener, if you're here already, because we have an extremely interesting part of the law to discuss today. Today's episode does include some descriptions of assault, some violence, and also some sexual content. However, this episode does not include any descriptions of or cases concerning sexual assault. So before we get into a pretty juicy case or two this week, we're going to get a crash course and some fun quizzes in non-fatal offences against the person.

SPEAKER_03 2:14

Yay.

SPEAKER_02 2:15

So can you tell me what I mean by non-fatal offences against the person? Well, something that doesn't lead to death. Yes.

SPEAKER_05 2:25

Something being like gentle stabbing or something. No.

SPEAKER_02 2:30

Yeah, I guess, yeah, that would work. Okay. In modern UK law, we have some statute that we use to define and establish violent crimes against people. It is quite broad and gives details of everything from threats to really serious harm. The Offences Against the Person Act, or the OAPA, which is what I'll call it from now on, covers a lot of things that we will not be covering today. But in many years of this podcast running, I'm sure we'll get to everything eventually. But for today, the first few slides here are going to inform you both for our stories and prepare us for a little debate at the end.

SPEAKER_05 3:12

I'm excited.

SPEAKER_02 3:13

Hopefully with some little debates plotted throughout as well. Would anyone like to take a guess as to when the OAPA came into force in the UK?

SPEAKER_03 3:22

80s or something.

SPEAKER_05 3:24

Go 1980s? 50s, why not?

SPEAKER_03 3:27

Ooh. Go back a hundred years. Oh really? I disrespected the UK.

SPEAKER_05 3:33

See, I assumed it'd all be like already like common law or something, and this was just like tidying stuff up.

SPEAKER_02 3:39

Uh so this actually came about in 1861. It's been around a while. There's a lot of debate and legal literature about the old-fashioned language in it and how some of the language has changed over time and it really needs reform. But that's a debate for another day. That's not what we're going to talk about here. So today we're going to be looking at common law assault, battery, actual bodily harm, grievous bodily harm, and consent. Given that, Chris, do you have any idea what we're talking about?

SPEAKER_05 4:11

I think I know what you're going to talk about.

SPEAKER_02 4:12

I have no idea what you're going to talk about. Okay. So I have sent you on your WhatsApp a little ladder to your phones. You can refer to it as we go. This is the assault ladder. We'll refer to it as we go along. It might help you with some questions you might have later. If you're ever sort of getting a little bit lost as to where the offences stand on the ladder, you can look back at this. Okay?

SPEAKER_04 4:37

Okay.

SPEAKER_02 4:38

For the listeners, I'll just explain for you now that the assault ladder has five steps, as it were, and we're going to go through the different levels of assault, starting with the lowest and ending at the highest, as in the non-baddest and ending with the baddest.

SPEAKER_05 4:54

Is that a technical term or right good?

SPEAKER_02 4:58

Beginning with common assault here, also commonly referred to as technical assault. Would anyone like to take a punt at the definition of common assault? That's what you do to me.

SPEAKER_05 5:17

Interfering with someone else physically. Not even physically, I think.

SPEAKER_03 5:23

Oh yeah, it's like remember that guy we saw in the court with the I I don't know if it's uh ethical for me to talk about. It is, it's fine. We don't really do ethics on this pocket. Alright, that's my place then. Okay. So like he had the hose and he floofed him with the water. So like yeah. It can be even verbal, I think, huh?

SPEAKER_02 5:41

Yeah, and thank you for describing that case so eloquently. Um Luckily I do give a full description of it later for anybody who has no idea what that meant. So yeah, so we'll get into it. It is technically undefined, although we do have definitions through literature and common law, and it is most clearly discussed statutorily in the Criminal Justice Act nineteen eighty eight. However, it still remains that there is no specific definition written in statute. Now if we rem if we remember back to a few episodes ago we learnt about the actus race and the men's rea. So with common assault, we have the accepted rule that common assault must involve an actus race of an act which causes another person to apprehend immediate unlawful personal violence, and a mens rare of intention or recklessness as to causing apprehension. If convicted, you would be looking at up to six months imprisonment or an unlimited fine.

SPEAKER_05 6:44

So if I'm understanding that right, you can go up and act as if you're going to punch someone and that counts as assault, even if you don't punch them.

SPEAKER_03 6:51

Absolutely. That's really cool. I mean it's threatening, yeah. Yeah, it makes sense. I need to watch my um You need to watch yourself, yeah.

SPEAKER_02 7:00

Well, we have some examples. We're gonna do a little quiz here. What do you think would constitute a charge for common assault? I'll go through them one by one and we'll see what we think. Threatening a person with a replica gun. Oh yes.

SPEAKER_05 7:13

Yeah.

SPEAKER_02 7:14

Scarier. Correct. This is technical assault. Shouting, I'm going to get you as you chase your wife up the stairs. Oh yeah.

SPEAKER_03 7:21

Have you ever done that? Oh yeah, I I attest. As a good as a very, very good friend.

SPEAKER_05 7:30

Right.

SPEAKER_02 7:31

What were we thinking?

SPEAKER_05 7:32

See, I think under the definition, yeah, right? Well is it depends on the thing.

SPEAKER_02 7:37

I suppose it is it likely to make them um what was the Was it likely to make them apprehend immediate unlawful personal violence? Ah, okay. Well, we don't know the tone in it. Okay, let's say we we're all friends here and everyone is happy.

SPEAKER_05 7:58

You know, v violentness No.

SPEAKER_02 8:00

Unless Unless, well, you know, men. Yeah. But but no, this wouldn't be considered.

SPEAKER_05 8:06

I've just assumed that that was a husband as well, so that was very heteronormative.

SPEAKER_04 8:10

Oh God.

SPEAKER_02 8:13

Threatening to punch someone whilst amid a verbal argument. Yeah.

SPEAKER_05 8:18

Yeah. Right?

SPEAKER_03 8:19

Yeah. Because like the context is aggressive.

SPEAKER_02 8:22

Exactly. This would be technical assault because it is happening in the moment and could make someone fear immediate personal violence. Okay. What about threatening to come and kill someone in a week's time?

SPEAKER_03 8:34

Very specific.

SPEAKER_05 8:35

Well, I guess it's not immediate, is it? Is that the point? Yeah. Right.

SPEAKER_02 8:38

So this would have no actus race.

SPEAKER_05 8:41

So that's is that legal or is that or is that like threats to something different.

SPEAKER_02 8:47

Maybe.

SPEAKER_05 8:48

Malicious communications, maybe. Something like that. Interesting.

SPEAKER_02 8:52

Certainly not common assault though, sorry. It's still threatening. It is still yes, it's very threatening. Yes. Walking towards someone whilst making eye contact in complete silence in a very intimidating way.

SPEAKER_03 9:04

I just again I think that's technical assault.

SPEAKER_01 9:07

I don't know what you mean. I've never done that to you.

SPEAKER_05 9:11

Seems like the sort of thing you do.

SPEAKER_01 9:13

Um say no?

SPEAKER_05 9:15

I I guess no. I mean it's not violent, is it?

SPEAKER_01 9:17

Well, in my books that's vi very violent.

SPEAKER_05 9:19

Right, okay.

SPEAKER_02 9:20

Yeah, so this this could be assault if if the person is really, really scared.

SPEAKER_05 9:25

See, Brittany's got a hell of a bitch face. And if she's just walking along like listening to a podcast or something, I'd be intimidated.

SPEAKER_02 9:32

I have said, you know, in a very intimidating way. So I suppose that like striving towards someone. Yeah, like implies you know, and m maintaining eye contact. What about texting your enemy that you're coming to kill them? I think it would join the other one as in not very immediate or Oh? Because it's via text. Is that what you mean? Because you're not in front of them.

SPEAKER_03 9:55

Yeah, I think. Okay.

SPEAKER_05 9:56

I don't know. If you're coming to kill them, does that mean it's immediate? I don't know. Imminent.

SPEAKER_03 10:00

Well, it depends on the how far they are. Logistics and so on.

SPEAKER_02 10:04

Yeah, okay.

SPEAKER_05 10:05

Yeah, go on, tell us.

SPEAKER_02 10:06

Yeah, so that would be. I mean, like Luca says though, if you're, you know, within the vicinity.

SPEAKER_05 10:11

Okay.

SPEAKER_02 10:11

Yeah. What about making repeated silent phone calls?

SPEAKER_05 10:15

Oh, that's bad. I think that's a stretch, right? It's not really that's assault. Oh, that's bad, yeah. Oh my god. That's wild.

SPEAKER_02 10:23

Yeah, yeah, yeah. Because it it could scare the shit out of someone right. Answer my phone. Make some worry. Yeah. This is based on a real case. That's incredible. He was charged with common assault.

SPEAKER_04 10:33

Wow.

SPEAKER_02 10:34

I think it was to many women. I can't remember the exact name of the case, but he was he was doing this to quite a few maybe up to three.

SPEAKER_05 10:40

So it wasn't just like he'd made a few phone calls.

SPEAKER_02 10:42

Oh no, it was like consistent over a long time. There's some scream vibes.

SPEAKER_05 10:47

Yeah.

unknown 10:48

Ooh.

SPEAKER_02 10:48

Okay, so now hopefully that's wet our appetite a little bit for some extra thinking and discussion. So let's consider some examples. Annoyed by her flatmate's constant noise, Priya decides to play a prank on him. Late at night, she stands outside his bedroom door and repeatedly bangs loudly while whispering his name. Tom, half asleep, rolls over and goes back to sleep.

SPEAKER_05 11:13

Who is she banging loudly?

SPEAKER_03 11:16

Oh my it took me a moment to say.

SPEAKER_01 11:19

The door. Right, okay.

SPEAKER_05 11:22

Um well he's not afraid, is he? He's it is half asleep. He's not worried about imminent violence, so that's not assault, right?

SPEAKER_02 11:30

Absolutely correct. Okay, I'm glad so my teaching has worked. Yay! Next, during an argument in a kitchen, Brittany totally randomly picked name.

SPEAKER_05 11:41

That's incredible. What a coincidence.

SPEAKER_02 11:42

A heavy frying pan and holds it while continuing to argue without making any explicit threat. Chris backs off and puts his hands up defensively. What do we think?

SPEAKER_05 11:55

Yeah, because I'm afraid I mean Chris is afraid, right? Um Yeah, right? Even though she's not int maybe not intending well, probably intending to, let's be honest.

SPEAKER_02 12:06

Yeah. Well, yeah, you yeah, it looks like it. Yeah.

SPEAKER_05 12:09

Interesting.

SPEAKER_02 12:10

So that would be a summary.

SPEAKER_05 12:11

Can I just ask a question about that one? Because the mens rea was it had to be recklessly or intentionally. Yes. So we're saying if Britney was Britney was being reckless by picking up a frying pan while you're having an argument. Because it's not intentional, right? Or maybe it is intentional.

SPEAKER_02 12:25

I guess you could probably you could probably get her for intentional if she's went in the middle of an argument and picked it up and held it up. You could get intention from that.

SPEAKER_04 12:32

Yeah, fair enough. Okay.

SPEAKER_02 12:34

But if she's like, oh no, like genuinely I was just cooking. Doing some weight training while we were. Or she was in the middle of like prepping dinner, but I mean we all know that Chris does that, but maybe if it is in that case and she just happens to have picked it up in a way that looked like she was about to go for you, then yeah, I would go recklessly, I suppose, for that one then, yeah. Okay. I had in my head just imagined that example is like really threatening, but maybe not. That makes sense.

SPEAKER_03 13:04

Interesting point, yeah.

SPEAKER_02 13:05

Okay, so now we're moving one up the ladder onto battery. This one may be a little self-explanatory, but do we know what we would define as battery?

SPEAKER_03 13:15

Smashing faces. Smashing faces? Well, not necessarily but like any part of the body.

SPEAKER_02 13:20

Okay, smashing specifically, you're saying. Well, I don't know, I use my words very loosely.

SPEAKER_05 13:26

So is that where it goes from like it has to be physical? Yeah. Right, okay.

SPEAKER_02 13:30

Oh, okay. Yeah. But not too physical. Not necessarily smashing. That might be a bit higher up the ladder. Okay. So here we have another common law offence. Section 39 of the Criminal Justice Act 1988 sets the mode of trial and penalty, but the section does not define it. We do have the common understanding, however, that a charge for battery would need an actus reus of infliction of unlawful force on another, along with the men's rea of intention or recklessness as to applying unlawful force. And again, you'd be locked up for up to six months imprisonment, or you would have an unlimited fine for this offence.

SPEAKER_03 14:12

So the same punishment as before.

SPEAKER_02 14:15

Time for another little quiz. What do you think would constitute a charge for common law battery? I'll go through them one by one and we'll see what we think. Could touching a woman's skirt be considered a battery? Yes.

SPEAKER_05 14:32

I guess so, yeah, but I obviously it depends on the context.

SPEAKER_03 14:34

Like surely.

SPEAKER_05 14:40

Oh, okay, yeah, no, true. Yeah, I think.

SPEAKER_02 14:47

Let's say you're grabbing it with intention of being nasty.

SPEAKER_05 14:53

Oh yeah, right? Because it's it's force, right?

SPEAKER_02 14:56

Yeah. Now I thought we'd get a little bit more pushback on that one because we're not actually touching the person, are we? We're just touching a part of their clothing. Um but yes, the courts made clear in a case like this that someone's apparel is an extension. Sorry, the what? The apparel.

SPEAKER_03 15:12

How do I say it? Is it apparel? Apparel? Apparel. But I like the apparel.

SPEAKER_05 15:20

I like that. It's like a cocktail.

unknown 15:23

Yes.

SPEAKER_02 15:24

Aperol spritz. Apparel. Like apparently. Apparel. Someone's apparel is an extension of themselves and therefore unwanted touching of a person's clothes whilst on them amounts to battery of the person.

SPEAKER_03 15:41

I agree.

SPEAKER_02 15:42

What about jostling on the metro when it's proper packed in? Proper. Jostling as in like pushing and like Yeah, just like bumping into people by accident.

SPEAKER_03 15:53

I do that all the time.

SPEAKER_05 15:55

Yeah, I I don't know. You get if you're gonna tell me you get locked up for jostling on the metro, that'd be crazy.

SPEAKER_03 16:01

It's a bit trickier, yeah.

SPEAKER_02 16:02

So no, this is what we would call implied consent. Okay. So there's implied consent that when you get on a busy mode of transportation or you know, you go to the metro centre, uh, for example. I remember some hated place in the world. Yeah, you you're implying consent that you might get bumped into. Gotcha. Okay. What if you spat on someone and it landed on their shoe?

SPEAKER_03 16:24

Yeah. Just the fact that just the spitting is the spitting is the the f the the earlier offense. Okay.

SPEAKER_05 16:30

Spitting is the effect the common assault, and then if it lands on them, it's battery, is that right? Absolutely. Absolutely nailed it. Nailed it. She's a pro.

SPEAKER_03 16:39

I'm a pro at spitting.

SPEAKER_02 16:42

I'm not, I'm not by the A confetti cannon goes off at a party and bits land on everyone.

SPEAKER_03 16:48

Bits la Oh, bits land on the reread that. What did you think it's there? I just need the jury to say, yeah, I'm sorry, I'm a bit slow.

SPEAKER_01 17:00

No, you're not, you're not, you're absolutely fine.

SPEAKER_05 17:02

Oh, I don't know. No, right?

SPEAKER_03 17:04

It's festive. Festive.

SPEAKER_02 17:06

Yeah, again, so this would be implied consent again. If you're at a party, implied consent festivities, people might set stuff off that gets on you, you know.

SPEAKER_04 17:14

Cool.

SPEAKER_02 17:15

What about spraying your mean neighbour with the garden hose whilst cleaning your car? Oh, is that the example I uh spray very eloquently. This is the one we prepared earlier.

SPEAKER_05 17:27

I'm guessing, yes, right. Definitely, yeah.

SPEAKER_02 17:30

Yeah, so um this is one that I've seen actually play out in court. This is exactly what happened, and yes, this was indeed common law battery.

SPEAKER_05 17:39

In the nicest way, though. Imagine calling the police because you're someone sprayed you the hose. I don't know.

SPEAKER_03 17:45

Or maybe like the other like the other guy provoked him just for him to do that, so he'll have grounds to kind of call on him.

SPEAKER_02 17:51

The thing was about that case in particular was that these neighbours had had a long lasting dispute.

SPEAKER_05 17:58

So This was the latest in.

SPEAKER_02 18:00

I guess the other neighbour knew his rights and knew that he could get that guy charged with the song.

SPEAKER_03 18:05

Know your right people.

SPEAKER_02 18:07

What about bumping someone on purpose with your trolley because they're too slow in wait rows? I picked wait rolls just for you, Chris.

SPEAKER_05 18:17

I feel so at home. Um, have you? Oh come on. Some of these old women, like you have the entire week to go shopping. Why a Saturday?

SPEAKER_03 18:32

We have a batterer.

SPEAKER_02 18:34

So, yeah, this is absolutely battery. I've also seen this scenario in IKEA in a racially aggravated assault. Um but I was around 10 years old, so couldn't have done anything. But I reckon if I saw this happen now, I'd probably speak to the victim and ask them if they'd like me to call the police to report the assault. Are we happy so far? Oh yeah. We're about halfway through the lesson, and then we'll get on to the juicy cases. It's just in order to have an informed discussion around these cases, we really need this background information first. Otherwise, it's just the blind leading the blind. Now we're moving on to actual bodily harm. So if you if you consult your assault ladder, you'll see we have common assault or technical assault at the bottom. Still not good, but it's at the bottom, followed by battery, and then nearing the middle here is where we have actual bodily harm.

SPEAKER_04 19:24

Okay.

SPEAKER_02 19:25

This time we do have a definition in section 47 of the OAPA. An assault or battery would amount to actual bodily harm when it causes any hurt or injury calculated to interfere with the health and comfort of the victim. It is an either way offence, which means it can be dealt with either in the magistrates court or the crown court, and we need an actus reason of an assault or battery that occasions actual bodily harm, an amends rear of intention as to assault or battery, or recklessness as to assault or battery. Anyone know the maximum sentence that you would get for ABH? So if the other two are six months.

SPEAKER_05 20:03

We're going two years.

SPEAKER_02 20:05

You said the maximum? Maximum. Three and a half. So it's five.

SPEAKER_05 20:09

I got a budget. That's pretty harsh.

SPEAKER_02 20:13

Yeah, up to five years for ABH.

SPEAKER_05 20:15

See, I thought if it would be bad enough to get you five years, you might you must be going up a tier to like GBH or something, but not even there yet. Oh wow, wild.

SPEAKER_02 20:25

How about another quiz? Oh, we're getting sick of these yet. No, no, no, I love a quiz. Would you deem any of these to be applicable to a charge of actual bodily harm? Starting with cutting off your wife's ponytail whilst she is sleeping. Oh Mg. Oh my god. That's sex.

SPEAKER_05 20:42

Honestly, the law would be the least of my concerns if I'd done that.

SPEAKER_04 20:46

Oh my god, imagine.

SPEAKER_05 20:47

So this is that's gotta be that's interfering with with their comfort, right? Yeah.

SPEAKER_02 20:52

So that's Yep, that would absolutely be ABH. That's from a real case.

SPEAKER_05 20:56

Who who would do that?

SPEAKER_02 20:57

Oh just mean men. There are weird people in the world. School children obtaining cuts and grazers in the schoolyard?

SPEAKER_05 21:05

No. Well, no. Unless like someone came and kicked their teeth in or something. Like if it was a bully doing it.

SPEAKER_02 21:10

Yeah. Yeah, again, we've got implied consent here. Punching someone in a bar fight and causing a black eye?

SPEAKER_03 21:16

Yeah. Mm-hmm.

SPEAKER_02 21:18

Yep, agreed. What about not letting someone leave your home and interrogating them on what you think they stole, leaving them mentally distressed for a few days after? Yes. Affected their mental health.

SPEAKER_05 21:30

Interesting. Is that cat well is it but it's not physical? Does that make any odds?

SPEAKER_02 21:35

So yes, it does. So uh harm can be mental or physical.

SPEAKER_05 21:40

Right, okay. Okay. It's just the way it's a like actual bodily harm. It made me think it was just like physical, like you've got a bruise, you've got a cut.

SPEAKER_02 21:49

No, there was a there was a landmark case, I think within the last twenty years that distinguished this that yeah, it can be mental.

SPEAKER_05 21:56

Wow, that's pretty cool.

SPEAKER_02 21:57

Very advanced. So what would we say for this one? Yeah.

SPEAKER_05 22:01

I guess yes, then if in that case.

SPEAKER_02 22:03

So although actual bodily harm can be of the mental capacity, it does have to be a recognized psychological condition. So because this is just leaving them mentally distressed for a few days, this would not constitute actual body harm.

SPEAKER_03 22:18

What did they need to like to go to uh So for example the next one to be diagnosed or something?

SPEAKER_02 22:24

Making harassing phone calls over a long period which leads to the person on the receiving end being diagnosed with clinical depression.

SPEAKER_03 22:30

Well it depends on time frame again, because if it's repetitive like this one, then yeah, it would lead to something big. But the other one, like it shouldn't be dismissed. I'm sorry. It shouldn't be dismissed. It would be. Just because it happened once. I mean, you know, the trauma stays. But yeah.

SPEAKER_02 22:46

Well, yes, I mean, I suppose there is a difference between just getting a bit of trauma and you know it lets you just a bit of trauma. But there's a difference that the courts recognise a difference, let's say, then, between just suffering from, you know, a mental distress state to actually go in and being diagnosed with clinical depression, for example. I guess they need like a limit, otherwise what about making unwanted sexual advances to a woman who was in the car with you, causing her to exit the vehicle whilst it's moving, causing her minor injuries.

SPEAKER_05 23:19

Ah, we've all done that.

SPEAKER_02 23:21

Oh my god, Chris.

SPEAKER_05 23:23

I guess I guess so, right?

SPEAKER_02 23:26

Even though, well, I'm not trying not to give anything away. So consider she has had minor injuries, but you haven't inflicted them personally.

SPEAKER_03 23:36

You have indirectly.

SPEAKER_02 23:38

I like that word, Nuha. So can ABH be indirect?

SPEAKER_03 23:43

Actually, indirect, yeah. She's right. Thank you very much.

SPEAKER_02 23:46

Yeah. So you can absolutely call someone ABH indirectly. And if they suffer minor injuries to themselves through their apprehension of immediate personal violence, then that jumps it up to ABH because you have caused it.

SPEAKER_05 24:01

Right, I see.

SPEAKER_03 24:02

Very good to know. For the drive back. Well, if something happens, you know, in the future.

SPEAKER_02 24:11

Coming on to our last two sections of the assault ladder, GBH. So this one again is an either way offence. Grievous bodily harm or GBH is under two sections of the OAPA, section 18 and section 20. The core distinction of these offences under these sections are that for the lesser offence, the section 20 offence of wounding or GBH, prosecution only needs to prove intention or recklessness as to some physical harm. Okay, so we have a lesser GBH and a badder GBH. Section 20 is the lesser one, and the prosecution needs to prove intention or recklessness as to some physical harm. For the more serious offence under section 18, prosecution must prove malicious intent to cause really serious harm. Or intent to resist arrest. The same kinds of injuries can fall under either. The difference is what was going on in the defendant's mind. Quick mini quiz. What do you think the maximum prison sentence is for each of these offences? We've got 10 and uh 20.

SPEAKER_05 25:19

I'm gonna say section 18 is gonna be life.

SPEAKER_02 25:21

Section 18?

SPEAKER_05 25:22

The harsher one, right? When it comes up, I think you're right.

SPEAKER_02 25:24

I think you're right. I think it is life.

SPEAKER_05 25:26

So in that case, section 20, I'd say it would be 10 years, why not? 12 years, haven't I?

SPEAKER_03 25:30

Or 20 in life.

SPEAKER_02 25:32

So again, for the lesser one, we've got a maximum of five years for section 20 and life imprisonment, up to life imprisonment for section 18.

SPEAKER_05 25:40

Crazy.

SPEAKER_03 25:41

Why just five? I don't see an incentive in the case.

SPEAKER_05 25:45

Well, that's the maximum, right? So I guess is there a higher starting point or five years is the maximum.

SPEAKER_03 25:50

Yeah. Well, I mean, compared to the three others. Oh no, the the one before the actual the ABH.

SPEAKER_05 25:56

So if you've already punched someone, you might as well really hurt them. Yeah. Because you've already done the crime, you might as well just finish them off. No, okay, maybe not finish them off. I think something else.

SPEAKER_02 26:05

I think the difference here is that you could punch someone and give them a black eye, which is an ABH. You could punch someone, give them a black eye, and cut their cheek. That's a GBH.

SPEAKER_05 26:18

Interesting. Oh it's not really much, is it?

SPEAKER_02 26:20

Because the continuity of the skin, if you break the continuity of the skin, it bumps it right up to GBH. Oh wow.

SPEAKER_03 26:26

Interesting.

SPEAKER_02 26:26

Damn. But it's just some harm, isn't it?

SPEAKER_03 26:29

We imagine like they already had like a pimple or something and you've punched it. And you've done them a favor. I don't think we should be laughing at this.

SPEAKER_02 26:41

So now rather than go through some examples of GBH, we're going to go down one specific line when it comes to assault, and that is consent. And then we're going to open this up into some examples and then take a deep dive into three predominant cases concerning consenting to assault. Okay?

SPEAKER_05 27:01

Okay.

SPEAKER_02 27:02

So you may be thinking, consenting to assault, Jacoa? Are you mad? Who finally lost your marbles? I'd say no. I lost them a long time ago. But still, you actually do in everyday life, quite commonly and quite ordinarily, consent to various kinds of assault. Let's throw out some examples. How do we consent to assault in our everyday lives? I'm talking big assault, not the little assaults like Jocelyn on the metro. I'm talking GB.

SPEAKER_05 27:32

Uh-huh.

SPEAKER_02 27:32

Yeah.

SPEAKER_05 27:33

Okay.

SPEAKER_02 27:34

Yeah.

SPEAKER_05 27:35

Um getting a tattoo?

SPEAKER_02 27:37

Yeah. That would be exactly a good smart point. That would be a section 20 if it wasn't on piercings by the same thing.

SPEAKER_03 27:44

Uh-huh. Again. Any more?

SPEAKER_01 27:45

Interesting. Oh, wait a minute.

SPEAKER_05 27:47

Uh I guess uh maybe maybe getting a jab at the doctor's or something.

SPEAKER_02 27:52

Take it one step further.

SPEAKER_05 27:53

Surgery. Yes. Didn't even think of that.

SPEAKER_01 27:57

Yeah. Any more? Boxing? Rugby? Oh, I never understood those. Yeah. Okay.

SPEAKER_02 28:04

And then back to Chris's pink.

unknown 28:08

Yeah.

SPEAKER_05 28:12

They could be pink.

SPEAKER_03 28:15

Oh yeah.

SPEAKER_04 28:18

Well Is it? Is it? Yeah, good one.

SPEAKER_02 28:22

So yes, some of our most recognized, not most, some of our recognized categories of consent would include surgery, body mods, not tongue splitting though. That is still an offense in the UK.

SPEAKER_05 28:35

It's pretty cool though, isn't it?

SPEAKER_02 28:37

Sports no. Sports and sexual pleasure. And today we're going to be specifically discussing content to assault cases concerning drum roll, please. Sexual pleasure. How uncomfortable are we?

SPEAKER_05 28:59

Fairly.

SPEAKER_02 29:00

Do you see why I let Britney off with this one?

SPEAKER_05 29:02

Oh God. Should have been silent the whole thing. That's so uncomfortable.

SPEAKER_02 29:08

Okay, guys, seatbelts on. This is going to be a bumpy ride. Oh, jeez. Consider this case here. The defendant knew he was HIV positive and had unprotected sex with two women without telling them about his condition. Both women later contracted HIV. Consider what you've learned. I'll quickly go through the ladder again. We have common assault, battery, a section 47 ABH, a section 20 GBH, or a section 18 GBH with intent. What are we charging this man with here? If anything. ABH.

SPEAKER_05 29:39

It's GBH, right? But perhaps not section 18, because we don't know if it's malicious or not. It could just be reckless.

SPEAKER_03 29:47

I mean he knew. What reckless like that? Recklessness would be a year and I'd he'd be very stupid.

SPEAKER_02 29:53

So we have some harm with GBH, or we have really serious harm.

SPEAKER_05 29:57

It's really serious harm.

SPEAKER_02 29:59

Malicious and really serious harm, or reckless and intentacle some?

SPEAKER_05 30:04

I don't know. I mean he knew he was HVAC. Yeah. I don't know if I know do we know enough from that to decide.

SPEAKER_02 30:12

So I have got a vague outline of the case here. So this was a real case. And I read the judgment. So if you have any qualifying questions, I might be able to answer them for you when we're talking specifically about this case. So this guy, Mohammed Dika.

SPEAKER_03 30:28

Oh my god, I knew it. No, that's very malicious. And I'm not actually profiling anyone. Go ahead.

SPEAKER_02 30:35

So he was charged and found guilty under section 20 with recklessly inflicting grievous bodily harm. So they couldn't prove maliciousness. They couldn't prove he had actually done it specifically to infect them. Yeah. But he knew. There is no way he won't infect them. Took a risk. It's reckless. Um in what country? Just can't prove the intent. I mean, you may genuinely think that there is intent there, but you have to be able to prove it. The intent is like when he knows, how did they uh establish that he knew it was obviously diagnosed earlier, so we will have known.

SPEAKER_03 31:12

Well, I think just that kind of qualifies as malicious. Because you know, like if you are a a decent person, you'll keep it in your pants.

SPEAKER_02 31:21

I mean, I could I I mean to a point I completely agree. Like, if you are having unprotected sex with people who don't know that you're HIV positive and you do, you know, then what do you expect is going to happen? I mean, especially not telling them. Yeah. That's malicious, yeah, that's like. Yeah. So uh I think I may get to it. Yeah, I do get to it, but uh basically I think that his lawyers tried to argue that the consent of intercourse was consent to risk of infection. Um the courts decided no. Oh my god. Just purely consenting to sex is not consenting to risk of infection.

SPEAKER_05 31:58

So did they charge him with the section 18 then?

SPEAKER_02 32:00

Section 20.

SPEAKER_05 32:01

Right, okay.

SPEAKER_02 32:02

The interesting precedent set from this judgment in this case, and something for you to consider as we move forward on this sexy ride that we all consented to. Oh my god.

SPEAKER_05 32:11

Some of us consented to it.

SPEAKER_02 32:13

Is that the judge actually said in this appeal court judgment that had the women known about the risk and had consented, the whole case would have been quashed. But they didn't. And consent for sexual intercourse alone does not qualify as consent to risk of infection. Consent has to be informed. So it's set plainly that a person can consent to the risk of a sexually transmitted infection. How do we feel? I agree.

SPEAKER_05 32:39

I think I think that's probably right. I can see why it wasn't malicious. Or at least they couldn't prove it was malicious. Fair enough.

SPEAKER_02 32:46

What I want you to take away from this is that a person can consent to the risk of a sexually transmitted infection.

SPEAKER_04 32:53

Okay, got it.

SPEAKER_02 32:54

So if that happened again and the women had known, that wouldn't have been considered grievous bodily harm because they have consented to that harm. They knew about it.

SPEAKER_03 33:03

And what it would it would be nothing then.

SPEAKER_02 33:06

Because they knew Okay. Okay, now consider this example. D, the defendant, female, met V, victim, female, online when they were both 13 years of age. D presented online as male. They had a relationship for three plus years, and V considered D to be her boyfriend. D visited V four times between the ages of 16 and 17. On those visits, there were numerous occasions of oral and digital penetration of V. V subsequently discovered that D was a girl, and D was prosecuted. Now in terms of the charge, this is a tough one. Let's see if we can nail here where on the assault scale we're looking at for a charge: assault, battery, ABH, GBH, or GBH with intent. Or are we charging D with anything at all? Is this even worthy of a charge? I mean there is some malice here. Yeah.

SPEAKER_05 34:06

Well it was intentional, right? And it was physical. But it wasn't was it. I'm not sure if it was hard or unless there was a mental health thing like we talked about. I guess it'd be battery.

SPEAKER_03 34:18

I think the idea of like being fooled kind of uh for for for such amount of time, like uh how how many years are we talking? Right, three and a half. Yeah, that's um so yeah, being fooled that would yeah, leave leave the person um feeling bad like mentally.

SPEAKER_02 34:34

So this was a little bit of a trick question.

SPEAKER_05 34:37

Oh, it's not any of them.

SPEAKER_02 34:38

No, well, yes. But you were right. So, okay, Dee was charged and convicted with six counts of assault, but under the Sexual Offences Act 2003. So she appealed and her appeal was dismissed, but this would have fallen on the battery level of the ladder. So you're right. So are you ready for some big hitters?

SPEAKER_05 35:01

Yes.

SPEAKER_03 35:02

Yes.

SPEAKER_02 35:03

Quick disclaimer here. Look, I am not, and I'm sure we're not, kink shaming anyone during the making.

SPEAKER_03 35:11

Not at all.

SPEAKER_02 35:12

During the making of this podcast. But if I laugh or if we laugh, it's because it's either legit funny or we're a bit uncomfortable, and that's fine. We're not being mean about your kinks, we're just telling stories and have a gig and having a giggle. So giggle with us.

SPEAKER_03 35:28

We love the kinks. I'm just being inclusive here, alright?

SPEAKER_02 35:35

Firstly, we have the case of Crown Against Brown. Do you recognise this, Chris?

SPEAKER_05 35:40

It's ringing a bell.

SPEAKER_02 35:42

Okay.

SPEAKER_05 35:42

I don't know.

SPEAKER_02 35:43

This is a case from 1994. In this case, the defendants were a group of gay men who were charged with various offences under sections 20 and 47 of the OAPA. They had participated in sado masochistic sex practices for around ten years and they had recorded their gatherings. The practices included, but was not limited to genital mutilation, nailing body parts to surfaces, beatings, humiliation, and the use of sandpaper, scalpels, fish hooks, and hot wax.

SPEAKER_05 36:18

That's a Saturday night.

SPEAKER_02 36:21

A fun one. Oh joins. The men were in a group all well known to each other. They had developed a relationship of trust over the years, they were all consenting adults, it happened in the privacy of mainly one home and once in a hotel room. They had safe words, rules, and always followed protocol. The videotapes were found by police in an unrelated search of one of the defendant's properties and the group was subsequently charged. There were no permanent injuries caused, no complaints were ever filed to the police by any of the participants, and none of the men had to seek medical assistance afterwards. Judge James Rant, passing sentence, said this is not a witch hunt against homosexuals. Much has been said about individual liberty and the rights people have to do what they want with their own bodies, but the courts must draw the line between what is acceptable in a civilised society and what is not. In this case the practices clearly lie on the wrong side of that line. The judge said he took into account the men's good character, they had no previous convictions, and had had serious effects to their home and family life due to the publicity of the case. So I found a newspaper article where it listed the defendants and their jobs.

SPEAKER_01 37:44

Ooh.

SPEAKER_02 37:45

I'm not gonna say their names, but I think that I just love the list of jobs. So two of the defendants, a forester and a care assistant in a care home, were jailed for three and a half years. Another two, an ice cream salesman and a computer operator, were sentenced to four and a half years. The defendant who I think owned the house that these gatherings went on at was, according to the Scotsman newspaper, of course it's in Scotland. A self-professed sadist and a retired local government officer. He got two years and nine months. Also in the group, a senior missile design engineer and a lay preacher and restaurateur got three years. A retired pig breeder got twelve months, an antique restorer got two years probation. A fancy dress hire proprietor got twelve months in a lawyer with the International Maritime Organization got the same. A retired firefighter got twenty-one months suspended for two years, a tattooist wrong types of houses. Or the right ones. A tattooist got fifteen months suspended for two years, a hotel porter and a photographer developer photography developer were discharged. The defendants looked to be mostly in their fifties, with a few in their late forties and thirties. The men appealed on the grounds that the interference with their private sexual practices violated their human rights. After all, Article 8 of the European Convention of Human Rights states that everyone should have the right to a private and family life, home and correspondence. I agree. Come on then. You're the appeal judge.

SPEAKER_03 39:28

What are we doing here? Uh as a judge I say I'm sorry. Go on to your to Scotland, go back to Scotland and keep doing what we're doing.

SPEAKER_02 39:35

I don't know if this did happen in Scotland.

SPEAKER_05 39:37

I don't think it can have happened in Scotland, right? If it's in England and Wales law. But I guess it was just really famous. Oh it made the Scotsman. Wow.

SPEAKER_01 39:46

But yeah, I I I would say sorry, go on. So you're saying dismiss the case, uphold the appeal, let them go.

SPEAKER_05 39:54

Hmm. Did we have the Human Rights Act in 1994?

SPEAKER_02 39:58

The European Convention of Human Rights was formed in the 1950s after the Second World War.

SPEAKER_05 40:02

Okay. And then we signed up to it, but then we put it into statute law in 1998, right? Absolutely. Okay, cool. Or whenever it was. Don't forget. It was nineteen ninety eight. Was it okay, cool? In that case I'd let them off, right?

SPEAKER_02 40:12

You would.

SPEAKER_05 40:13

So who got them off?

SPEAKER_02 40:14

Well, I I'm I'm about to tell you, I'm just checking that we're all on the same thing.

SPEAKER_05 40:18

That was a joke.

SPEAKER_02 40:19

Oh who got oh sorry.

SPEAKER_05 40:21

They got each other off.

SPEAKER_02 40:22

I was gonna say each other. So the convictions went all the way to the House of Lords, or what we'd call the Supreme Court today. The Lords decided by a three to two majority to uphold the convictions of the men.

SPEAKER_05 40:35

Interesting. They all went to jail.

SPEAKER_02 40:37

Damn. The House of Lords upheld the convictions because they concluded that, as a matter of law and public policy, a person cannot consent to the intentional infliction of actual bodily harm and more serious injury outside recognized exceptions. The consensual sadomasochistic activities were viewed as involving deliberate violence, risk of harm, and social concern, and therefore consent did not provide a defence under sections 47 and 20 of the OAPA. The court emphasized that protecting public welfare and preventing harmful violence justified criminal liability even in private consensual contexts. So what do we think here? Are we miscategorizing something as violent instead of sexual? Can the two go together? Should consent matter here?

SPEAKER_05 41:25

I don't know. I mean I guess there's levels to these things. I mean this sounds pretty low level, you know, they were just having a good time between friends.

SPEAKER_02 41:32

I mean it was well, the injuries they were giving each other were quite serious.

SPEAKER_05 41:35

Oh right, okay.

SPEAKER_02 41:36

But like I say, none of them were long-lasting, no one needed any medical treatment. But I mean they were like literally putting fish hooks through each other's peens.

SPEAKER_05 41:44

Okay, yeah, I can see that there is a line you've got to draw somewhere.

SPEAKER_03 41:48

I don't see anything. I mean, if they they're consenting, why not? I mean, and it's private, right? Yep.

SPEAKER_05 41:54

Yeah, but you've got to draw you do have to draw a line somewhere, surely, because otherwise you can have people like lopping bits off each other.

SPEAKER_02 42:00

I mean, I'm I'm sure there are people who that but like uh You're thinking, Chris, that you you're glad those convictions were upheld, that you cannot consent to that kind of serious harm. And Nuha, you're saying it was all consensual adults, nothing bad happened, uh it was in the privacy of their own home. We shouldn't be criminalising that activity. Right, fight it out.

SPEAKER_05 42:23

I think there's gotta be a line somewhere, right? And I think fish hooks through the willy is I mean I say through the willy.

SPEAKER_02 42:30

I think it was the willy or testes at I didn't see graphic descriptions, but I I mean it was fish hooks, scalpels, sandpaper, beatings, humiliation.

SPEAKER_05 42:42

See, I think I think there's gotta be a line somewhere between a light spanking and fish hooks through the penis.

SPEAKER_03 42:48

Well, I think the limit should be needing or like seeking medical assistance, do you think?

SPEAKER_05 42:52

That would be like hook through the testy and didn't seek medical assistance.

SPEAKER_02 42:56

Well, genuinely none of them needed care. It wasn't long-lasting. So maybe they didn't maybe I'm I don't know exactly what it was they did. Did they have like a nurse in there was no career? Oh well the care home. The care assistant actually dealt with mental health um in the care home. So no, there wasn't any.

SPEAKER_03 43:12

Then they didn't need it, like they didn't have like a doctor in-house.

SPEAKER_02 43:15

No, no, they didn't they didn't require medical assistance, whatever it was they were doing. I guess they would just get a bit of a a wound and it would heal naturally.

SPEAKER_03 43:25

I think it's just the House of Lords, they didn't kind of understand it.

SPEAKER_05 43:29

Oh, they're all asked. Come on.

SPEAKER_03 43:32

Oh yeah. Oh I know. Or yeah, exactly. Or they were doing it like, you know how like homophobic people are likely to be gay. Yeah. So like how yeah, they're like, oh no, this is violent. Wink wink, we do that when I can't.

SPEAKER_02 43:44

Yeah, but when when it's the gays we don't like it. Uh-uh. Can't have the gays doing doing it.

SPEAKER_03 43:49

It's very uncomfortable to discuss and stuff. Yes, yes.

SPEAKER_02 43:52

So you think there's a cultural issue there? We'll definitely get onto that a little bit later. Um, I do have my own opinion. Believe it or not.

SPEAKER_04 44:01

Really? That's crazy.

SPEAKER_02 44:04

But I know what you're saying about the House of Lords, because literally while I was writing this, I was like, I'm so surprised they said no to this because they're all at it.

SPEAKER_03 44:11

Right. Well then well if they're all at it, they're more likely to say no to it as you're likely to think. Oh no, oh my god, approval.

SPEAKER_05 44:17

I can't even believe that sort of thing happened.

SPEAKER_02 44:20

Like doth protest too much. I see. So they have to they have to convince everybody else that they think this is terrible stuff. Oh yeah, horrible. Horrible.

SPEAKER_05 44:28

Did he put his fish hook? Well I didn't think.

SPEAKER_02 44:31

In the willy. What a willy.

SPEAKER_05 44:36

I think that's exactly what happened.

SPEAKER_02 44:38

Yeah. Okay.

SPEAKER_05 44:39

I hope my parents don't listen to this one. I was really selling them the podcast the other day.

SPEAKER_02 44:44

You think they don't already know? Secondly. What? It's about sexy stuff.

SPEAKER_05 44:54

I think I hope they haven't put any fish through anywhere.

SPEAKER_02 44:57

You don't know. I don't. You do not know. Secondly, we have the crown against Wilson. Wilson from Doncaster inscribed his own initials on his wife's bum cheek with a hot knife at her request.

SPEAKER_05 45:11

Was it though?

SPEAKER_02 45:13

Yeah.

SPEAKER_05 45:13

Oh Jesus.

SPEAKER_02 45:14

The wounds became infected and Mrs. Wilson had to be taken to hospital for treatment days later. This led to a charge of assault causing actual bodily harm, and Wilson was convicted. He was conditionally charged for twelve months, which just means you don't go to jail. You keep your nose clean for a year or you're in the clink. This was appealed by Mr Wilson. The appeal was based on the explicit consent of the victim, and that it took place in the marital home and therefore should not be considered criminal. Mr Wilson said that his wife had wanted a tattoo, but he didn't know how to do one. He went on to say that the act had been done for love and wasn't life threatening. What would we do if we were the appeal judge here? I say send him to jail.

SPEAKER_05 46:02

Yeah. For very long. You you want eighty.

SPEAKER_03 46:06

I don't I don't believe that it's well first of all. Okay, no, no, no, no. Take it.

SPEAKER_02 46:11

There was consent, genuinely. She said this was consented. She also said it was an act of love. Come on. Okay, well, how do you prove that the other ones were Well exactly?

SPEAKER_03 46:19

I was asking, like, how is there a like a defined way of how to prove the consent? Because I don't know, there might be coercion or someone or something like that.

SPEAKER_02 46:27

Let's just say for the for the case of this, because if there was coercion and things, that would change things, but we do know in these cases that consent was absolutely obtained. But yes, I I understand what you're saying. This brings up a point that we didn't bring up in the last case, which is how do we know there isn't coercion involved? And you were saying in the last case, well, this all happened in the privacy of their own home, they were all consenting adults, and then it's like, well, okay, if we start allowing GBH to be consented to, how do we know that there's always actually explicit consent there? Is that a good reason to keep it criminalized? I'm asking you, who on the previous case said that it that case should have been thrown out.

SPEAKER_03 47:07

Well, because basically on the other case, so the idea was well th they were pleasure in each other. Yeah. In this one, it's not pleasant pleasant in it. Well not for you.

SPEAKER_02 47:17

I see what you're saying. So actually a sexual element has been taken out of this one. And so that's what you're saying. So because there isn't the explicit sexual nature of the act, then then you're you're thinking that this conviction should be upheld because this is a a different situation.

SPEAKER_03 47:35

So two things. They've said, okay, just because it happened in the marital house doesn't mean that it's it's they kind of removed the criminal side of it. Well, that's not always true, obviously. Like we know like rape happens in between like married people and so on. Right. And plus she asked for a tattoo. And he did not.

SPEAKER_05 47:52

And he was like, Well, I got a butter knife from a latte.

SPEAKER_03 47:55

So what's that? Like, this is not really well, she consented to a tattoo, but then she he flew to her with a knife.

SPEAKER_02 48:01

So I think this was part of his defense. He was trying to say what was different that he did to tattooing. I think that was the point he was trying to make, or that was the the connection he was trying to draw.

SPEAKER_05 48:13

I think that was catching at straws. Yeah, I agree. Did they let him off with that defense?

SPEAKER_01 48:17

Life. This case was thrown out. Oh my god. Just because they're hetero people. Yes. That's what I think. Oh my god. Disgraceful. That's what I think.

SPEAKER_02 48:28

So the appeal court overturned the verdict, and the judge, Lord Justice Russell, said Mr. Wilson's wife, who wanted to be branded to show her love, had not only consented, but regarded the acquisition of her husband's initials on her bottom, one on each butt cheek, as a desirable personal adornment. The judge also said that the case should never have been brought to the courts and served no useful purpose and caused considerable public expense.

SPEAKER_05 48:56

That is wild considering the other one we heard.

SPEAKER_02 48:58

Exactly, yeah.

SPEAKER_05 48:59

Interesting.

SPEAKER_02 49:00

I mean branding is different. What is different?

SPEAKER_03 49:04

That they drew and uh uh I think the m I'm not not to be uh conspirationalist cons as in con you know I don't know if that's a word. Conspiratorial? Conspi You know, like um into conspiration theories and stuff. But like here is like they're kind of as if they're encouraging this kind of stuff whilst kind of deterring from the other I don't know, but I mean I just it just seems that they're encouraging like stuff, normalizing these kind of things that happen in like hetero situations. Tell me Chris, what what are your thoughts here? Yeah, as a hetero person.

SPEAKER_05 49:39

Oh wow. I don't I think I get what you're saying about how you might think that a House of Lords is looking at you know a whole load of guys doing weird shit to each other and seeing yeah, that's degenerate behaviour. Whereas seeing two people who I don't know might have come across well and seen them, you know, seemed genuine in love, blah blah blah, in a marriage rather than just like hooking up and be like, oh well, you know, it's a bit I yeah. I don't know, I struggle because uh to me they seem pretty equivalent.

SPEAKER_02 50:13

I agree, I think they seem equivalent. I wonder if this would have had a different outcome had they not been married.

SPEAKER_05 50:19

If you get married, you can tattoo your name into your wife's ass.

SPEAKER_03 50:23

Because I think they perceive like there is um a property situation when it comes to marriage, they're like, okay, I mean they're together, like as in they're married, so he owns them. They can do what they like to each other, sort of thing.

SPEAKER_01 50:35

Yeah.

SPEAKER_05 50:35

Hippity hoppity, women are property.

SPEAKER_01 50:38

I have a question though. Did she seek medical assistance? Yes, the wound became infected.

SPEAKER_02 50:43

Aha! And she had to go to hospital.

SPEAKER_05 50:45

See, that sounds even worse than the the um than the gay one. The gay one gay one. Yeah.

SPEAKER_02 50:52

Um Yeah, I mean, I think this comes from a general distaste of the other ones being gay. I think it comes from a general lack of understanding of sexual sadomasochism. I think it is the ooh factor. And I think that's what that's what it had. I think if this were I know that um gay marriage wasn't legalized at this time, but I think had this Wilson case been a male married gay couple, I think they would have continued with that conviction. Mm-hmm.

unknown 51:24

Yeah.

SPEAKER_05 51:24

Is that the gen general sort of legal consensus that this was a bad decision or what what's the I mean it's it's heavily debated.

SPEAKER_02 51:32

Right. But we do have another case after this, um which may answer your question a little bit. So the last case we're going to talk about today is Crown Against Emmett. Now this happened in 1999, so this is six years after Brown, four years after Wilson. This case revolves around the defendant, Emmett, and his girlfriend. I want to say at the top here that nobody dies, so everyone can breathe as I tell this story. It gets a little hairy at some point. Oh. But no one dies. So Emmett and his girlfriend lived together, and Emmett was charged under section 47 with assault occasioning actual bodily harm and was sentenced to nine months' imprisonment. I think this was suspended for two years. He appealed. It states in the judgment of the appeal court that in the course of sexual activities between the two, it was agreed that Emmet would place a plastic bag above his girlfriend's head and tie it at the neck with a ligature made from anything that was to hand, and tighten to the point of endurance on the part of the person being tied. As you may imagine, the girlfriend allegedly started suffocating.

SPEAKER_05 52:42

Really?

SPEAKER_02 52:43

But Emmet didn't notice for a little while, and it seems that she lost consciousness at some point.

SPEAKER_03 52:50

Suspicious.

SPEAKER_02 52:51

When he realised she was in distress, he quickly removed the bag. So again, this information is mostly from the judgment. During the following day, the girlfriend's eyes became more and more bloodshot to the point that she decided to go in and see her doctor. You alright?

SPEAKER_05 53:08

Oh, I just don't like eyes. Eyes.

SPEAKER_02 53:13

Okay. He found subconjunctival hemorrhages in her eyes and some petechal bruising around her neck. The first symptom was caused by the restriction of oxygen to the brain, and the second by the restriction on the return blood flow to her neck. No treatment was prescribed, and after about a week her eyes returned to normal. It was also pointed out and accepted by all that if the activity had gone on any longer, she may have died, basically. A few weeks later, they were at it again.

unknown 53:47

Jesus.

SPEAKER_02 53:48

Again, during sexual activity between the two, Emmett poured lighter fuel onto his girlfriend's chest.

SPEAKER_03 53:56

Excuse me. I mean I do like the smell. But uh I don't think I like the texture. Okay, go on.

SPEAKER_05 54:05

The texture is what you're worried about.

SPEAKER_03 54:08

And he set it alight.

SPEAKER_02 54:10

Jesus Christ. Okay. No. As a result, she sh she shuffles?

SPEAKER_05 54:16

She shit herself.

SPEAKER_02 54:23

As a result, she suffered burns. Who to thunk it?

SPEAKER_05 54:27

Right? I mean this all seems like, you know, understandable things to happen.

SPEAKER_02 54:31

The burns then became infected, and Emmet insisted she go to the doctor. She did. And in his medical opinion, the doctors, she had suffered full third degree burns and may require skin grafts. Oh my god. However, she didn't opt for this, and by the time of the appeal hearing, the burns had fully healed by themselves without such treatment. I don't think you heal from a third degree burn without a They alluded to the fact that he may have overreacted. The doctor, very concerned about her two appearances and her reasons for the injuries, informed the police and Emmet was arrested and charged. Emmet told police during interviews that yes the two of them were involved in an energetic and very physical sexual relationship which they both enjoyed very much. And although these were usually his ideas, it was always done with the absolute consent of his girlfriend, and if there was anything she didn't like, they simply didn't do it. He did admit that the first incident with the plastic bag had gone too far and he had panicked, but that on the second incident it was her panicking when the flames went up that meant she wouldn't keep sc still and he s couldn't extinguish the flames immediately. Of course it's her fault. Usually it's the woman's fault. So firstly I'd like your immediate reaction in terms of let's say you're in the jury box and you're convicting Emmett of ABH, and then we can talk about it in terms of the precedent set by Wilson in 1996. Does Wilson change your mind? Does it validate the stance? What are we going with? But let's let's just get your first immediate reaction. Do you would you convict this man of ABH? Did they give them just ABH?

SPEAKER_03 56:13

But it broke the skin, right? Yes. I mean third degree.

SPEAKER_02 56:17

He was only charged with ABH.

SPEAKER_03 56:19

I don't know. I was conviction for GBH. Because I don't I don't believe that he didn't notice. Yeah, right. Wild Were they not married? Yeah, not married. Oh straight to prison. Still hetero though. Oh true.

SPEAKER_05 56:34

Maybe suspended sentence.

SPEAKER_02 56:37

Well he did. That's exactly what happened. He got nine months, two years suspended.

SPEAKER_04 56:41

Oh well there you go.

SPEAKER_02 56:43

He was sentenced, so he he was uh charged under section 47 with assault occasion and actually bodily harm and sentenced to nine months imprisonment, suspended for two years.

SPEAKER_05 56:52

So if you want to get away with it, make sure you marry them first. Yes. That's the conclusion.

SPEAKER_03 56:56

Probably still unless you're gay. If you don't want to get suspended, yeah. What?

SPEAKER_02 57:04

Is it the way I said it? Yeah, it's the way you said it, yeah. Suspendent. Um so what about the precedent set by Wilson in 1996? What's different about this?

SPEAKER_05 57:17

Well, that's the thing, they seem to be just been making it up because Brown was, you know, sent them to jail, Wilson has let them out. And this one they've just done something completely different again. Well, not that different, they found him guilty.

SPEAKER_02 57:29

Well, this did go to appeal though, so what do we think happened to appeal?

SPEAKER_03 57:33

Well, uh just to s to kind of mention a difference between this one and Wilson is uh this one is still like under pleasure, uh sexual pleasure. You've got the sexual element here.

SPEAKER_02 57:43

Yes. Um not the divine love between two uh heteromarried And a knife So do you think this one had the ick factor as well? The what factor? Given the ick factor, like the ooh factor, given that it was about sexy stuff. Oh so oh yes.

SPEAKER_03 57:59

I mean if yeah there is a pattern here.

SPEAKER_02 58:02

The appeal was dismissed and the conviction remained. The judge stated that in this case the degree of actual and potential harm was such and also the degree of unpredictability as to injury was such as to make it a proper cause from the criminal law to intervene. This was not tattooing, it was not something which absented pain or dangerousness, and the agreed medical evidence is in each case, certainly on the first occasion there was a very considerable degree of danger to life. On the second there was a degree of injury to the body.

SPEAKER_05 58:35

Gotcha.

SPEAKER_02 58:36

With that conclusion, this court entirely agrees the learned learned judge was right to rule that these matters should be left to the jury on the basis that consent could not amount to a defence. How do we feel? Given Wilson.

SPEAKER_05 58:50

I don't know. To me it still seems like they're just making stuff up as they go along. I'd love to know what legal test they're applying here, you know? Mm-hmm. To me, there doesn't seem to be one. But I'm sure there probably possibly is.

SPEAKER_02 59:01

I don't know A legal test? No. I mean they're just using Vibes. Well, yeah, I mean it's I I think there is the pattern like Nuha says with the case law of Brown. Um but I think if I remember the judgment correctly for this one, they did say it was very different for brown from Brown. They definitely said that in the Wilson case. They basically said with the Wilson case, like it's incomparable. And I was like What seems pretty comparable to me. I mean Brandon, that's even worse. Yes. Excuse no I mean I don't see any difference from fish hooks and scalpels to hot knife and an infection. Yeah. I really don't expect that.

SPEAKER_05 59:39

Or at least the in brown they were being like, well, they seem to not cause each other any or like having to go to a hospital or something. It seemed like more controlled, right? Yeah, more controlled than. Well, that's because men were doing it, you know.

SPEAKER_02 59:50

Oh, right. Get all their fish in a row. Ducks ducks in a fish. Fish on the brain. Fish on the brain. So yeah, how do we feel about that? It the thing is, it says in the law that the or you know, literature says about the law that the whole reason for the law to be there is to protect society and also as a deterrent and all of that, the law should be predictable. You should know what is going to happen to you when it comes to the law with what you do. You should know. This is such a mess when it comes to consent and ABH and the sexual stuff, in my opinion.

SPEAKER_03 1:00:30

What we s what we've seen from here is that whenever it's sexual, like the court cannot decide that like, oh no, we don't know. They want to kind of just get over it, over with it. Over with it. Did you understand me? Yes.

SPEAKER_02 1:00:41

So yes, they just want to get it over with.

SPEAKER_03 1:00:43

Over with, yeah. Well, I mean, I don't know if I can say that and conclude that from just three cases and two of them being like of the sexual nature.

SPEAKER_02 1:00:51

Um Well, no, uh Nuha, I would completely agree with you. I think that is it. I think that's the ick factor. And I think that especially in the Brown case, I think that was about them being gay. Oh, definitely. Yeah, and I think that if that was yeah, I think maybe the the convictions still would have been upheld if that was a straight if that was a hetero sadomasochism ring. But I think like Chris said, they none of them would actually have served any jail time. Like Emmett.

SPEAKER_03 1:01:22

They'd be suspended.

SPEAKER_02 1:01:24

Yes. And not in the way they like. That's me done.

SPEAKER_03 1:01:29

Fantastic. That was really good.

SPEAKER_02 1:01:30

I love that.

SPEAKER_05 1:01:31

A lot of that was surprising, especially the last three cases. That was interesting. Yeah. I I I don't know if I I'm any the wiser as to why they decided to let some of them off and some of them not.

SPEAKER_02 1:01:43

I think the thing is when it comes to sexual activity and ABH and all of that, there is there isn't anything written. There's nothing standard. So then we had Brown happen, and there was that whole thing to the point where it went to the House of Lords. Like they didn't know what to do with it. They needed it to go all that way to properly know. And there was like the European Convention of Human Rights was involved. They were absolutely sure they were gonna get off. Other countries got involved, other other countries were it weighed in a little bit um because of the European Convention of Human Rights.

SPEAKER_05 1:02:16

Um That's interesting.

SPEAKER_02 1:02:18

I think there's like there is like a place, isn't there, where like in Europe they discuss law stuff.

SPEAKER_05 1:02:26

Yeah, you can up you can appeal to the European Court of Human Rights.

SPEAKER_02 1:02:30

I think they did that.

SPEAKER_05 1:02:31

Oh did they?

SPEAKER_02 1:02:31

Yeah. But I don't know. I don't think anything came of that.

SPEAKER_05 1:02:35

Okay. But it can also take Europeans ten years, twenty years.

SPEAKER_02 1:02:41

So that could literally still be in the air.

SPEAKER_03 1:02:43

Yeah. They had that first president, right? And they ended up like ruling the uh in the different direction uh in the following ones. That's very suspicious.

SPEAKER_02 1:02:53

Well, it is, and that's the thing, like as we were talking about yesterday, Chris, case law is considered a primary source of law, right? We have statute and we have case law. So if you were going with the Wilson one and Brown was legit, you would think that they would have followed that. But obviously.

SPEAKER_05 1:03:11

So they just sort of hand waved and said, Well, that's not comparable, is it? Yeah. I think it is comparable.

SPEAKER_02 1:03:16

I agree completely.

SPEAKER_03 1:03:17

Because they're not gay.

SPEAKER_02 1:03:19

Well, exactly. There is this, but I I I I agree with Newher as well. That I think there's this sexual component to it, and I think Wilson were very They were just in love. I think they were very clever.

SPEAKER_05 1:03:31

A man should be able to brand his wife if he wants to.

SPEAKER_02 1:03:34

Like that's what they're saying, right? That's what it's for a tattoo. If she says she asked for it and it's in the marital home, then have at it, guys. That's what I was saying, yeah. Yeah.

SPEAKER_05 1:03:45

I'll float that to Brittany. I'm not sure she'll be keen.

SPEAKER_02 1:03:48

I don't know. Now that she's taken the surname, maybe maybe isn't it? Bending twisting her arm a little. You never know. So my sources are my master's degree. Are you doing a degree? Uh oh yeah.

unknown 1:04:01

Wow.

SPEAKER_02 1:04:02

I got a 75. Oh!

SPEAKER_05 1:04:04

It's pretty good.

SPEAKER_02 1:04:05

Rhiannon Fraud's academic review in the Mason Institute blog named A Painful Precedent, Crown Against Brown, Criminality and Consent, the British newspaper archive, including the Scotsman and Hansard.

SPEAKER_05 1:04:18

Amazing. Thanks. Good job.

SPEAKER_02 1:04:22

Tune it in next week for a real good tale. I know it's you in the handcuffs though, not her. The pink one, isn't it? I don't know why pink can't I think.