In the old English case of R v Brown [1994] 1 AC 212[1] it was decided that a person or group of persons (who are adults) cannot consent to cause grievous bodily harm to each other.
In the above-mentioned case, five men that happened to be homosexuals engaged in sadomasochistic sexual acts, consenting to the harm they received during their sexual adventures. Some of the acts and harm were extreme; like nailing each other’s penises to the wall and tattooing their bodies with hot objects. They all mutually consented to this form of sexual adventure and fantasies as they were all adults.
When they were caught, they were arraigned on the count of unlawful and malicious wounding of each other and the count of assault occasioning actual bodily harm which is in contravention of s.20 and 47 of the Offenses against the person Act of 1861 of the United Kingdom.
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Their defense was that since they were all adults and they all consented to such adventure, it should not amount to a crime , after all, “volenti non fit injuria”:
Volenti non fit injuria is an old common law principle that stipulates that to a willing person, injury is not done. If a person willingly places himself in a position where harm might result, knowing that some degree of harm might result, he will not be allowed to bring a claim against the other party in tort or delict.
The court turned down this defense and refused to follow this line of thought as the key issue before the Court for determination revolved around whether consent was a valid defense to assault in these circumstances, to which the Court answered in capital No.
“Where A wounds or assaults B occasioning him actual bodily harm (ABH) in the course of a sadomasochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A’s guilt under section 20 or section 47 of the Offences against the Person Act 1861?”
One of the judges, Lord Templeman in his ratio decidendi stated thus; “I would answer the certified question in the negative and dismiss the appeals of the appellants against conviction. The infliction of bodily harm without good reason is unlawful and that the consent of the victim is irrelevant”.
R v Brown [1993] UKHL 19, [1994] 1 AC 212[1]
