Region: Europe
Year: 1997
Court: European Court of Human Rights
Health Topics: Sexual and reproductive health, Violence
Human Rights: Right to privacy
Tags: Gay, Homosexual, LGBTI, Queer, Sexual orientation, Sexual violence
Laskey (L), Jaggard (J) and Brown (B) had taken part in sado-masochistic encounters with as many as forty-four other homosexual men over a ten-year period. These mainly involved maltreatment of the genitalia and ritualistic beatings, either with the assailant’s bare hands or a variety of implements. There were instances of branding and infliction of injuries which resulted in the flow of blood and left scarring. These activities, which sometimes took place in rooms equipped as torture chambers, were consensual and conducted in private for no apparent purpose other than the achievement of sexual gratification. A ‘victim’ was always able to stop an ‘assault’, infection or permanent injury did not arise, and medical attention was never required. L was involved in recruiting new participants to the events which were videoed. The tapes produced were distributed amongst members of the group, but they were not sold or used by other persons.
The police, in the course of routine investigations, came into possession of a number of the tapes and the applicants, with several other men, were charged with assault, wounding and related offences. One of the charges involved a defendant who was under twenty-one years old, the age of consent to male homosexual practices.
L, J and B pleaded guilty to assault charges after the trial judge ruled that they could not rely on the consent of the victims as a defense, and they were convicted of the other offences. Their sentences were respectively: four years and six months imprisonment for aiding and abetting keeping a disorderly house, possession of an indecent photograph of a child, assault occasioning actual bodily harm and abetting such an assault; three-years imprisonment for unlawful wounding, assault occasioning actual bodily harm and aiding and abetting both offences; and two years and nine months imprisonment for assaults occasioning actual bodily harm, as well as aiding and abetting such an assault. The trial judge stated the court would have dealt equally with such conduct if it had been carried out by heterosexuals or bisexuals.
The appeals court dismissed their appeals against convictions but, as they did not appreciate that their actions were criminal, reduced their overall sentences to two years, six months and three months imprisonment, respectively. The house of lords dismissed a further appeal on the issue of whether lack of consent had to be proved for guilt to be established where actual bodily harm was occasioned in a sado-masochistic encounter.
The proceedings against L, J and B were given wide press coverage and all the applicants lost their jobs. J required extensive psychiatric treatment, and L died in May 1996. The applicants complained about their convictions to the U.N. Human Rights Commission, which found a breach of Article 8 of the European Convention on Human Rights (“Convention”). The European Court of Human Rights then considered the case.
[Adapted from INTERIGHTS summary, with permission]
The Court held that no violation of Article 8 had occurred. The Court reasoned that, given the considerable number of people involved, the recruitment of new members, the provision of specially-equipped chambers, and the filming and distribution of the tapes, it may be open to question whether the sexual activities fell entirely within the notion of ‘private life’ in the particular circumstances of the case. However, the Court did not examine this point because it was not disputed that the criminal proceedings resulting in the applicants’ conviction interfered with their private life. (3) that it was also undisputed that the interference was in accordance with the law and pursued the legitimate aim of protecting health or morals;
The Court further reasoned that the significant degree of injury or wounding inflicted in this case was not trifling or transient and sufficed to distinguish it from other cases involving consensual homosexual behavior in private between adults. Although the injuries were not severe and medical treatment was not required, regard could be had not only to the actual seriousness of the harm caused but also the potential for harm inherent in the acts in question when deciding whether to prosecute. Moreover, there was no evidence in either the conduct of the proceedings or in the house of lords' judgment that the applicants had been singled out because of the authorities’ bias against homosexuals (indeed, the judgment was based on the extreme nature of the practices and not the sexual proclivities of the applicants). Therefore, the reasons given by the national authorities for the measures taken were relevant and sufficient for the purpose of Article 8(2).
Finally, the Court found that, given that only a few charges were selected for inclusion in the prosecution case and the fact that the applicants did not appreciate the criminality of their actions was recognized by reducing the sentences on appeal, these measures could not be regarded as disproportionate.
[Adapted from INTERIGHTS summary, with permission]
"The Court observes that not every sexual activity carried out behind closed doors necessarily falls within the scope of Article 8 (art. 8). In the present case, the applicants were involved in consensual sadomasochistic activities for purposes of sexual gratification. There can be no doubt that sexual orientation and activity concern an intimate aspect of private life (see, mutatis mutandis, the Dudgeon v. the United Kingdom judgment of 22 October 1981, Series A no. 45, p. 21, para. 52). However, a considerable number of people were involved in the activities in question which included, inter alia, the recruitment of new 'members', the provision of several specially equipped "chambers", and the shooting of many videotapes which were distributed among the 'members' (see paragraphs 8 and 9 above). It may thus be open to question whether the sexual activities of the applicants fell entirely within the notion of 'private life' in the particular circumstances of the case. However, since this point has not been disputed by those appearing before it, the Court sees no reason to examine it of its own motion in the present case. Assuming, therefore, that the prosecution and conviction of the applicants amounted to an interference with their private life, the question arises whether such an interference was "necessary in a democratic society" within the meaning of the second paragraph of Article 8 (art. 82)." Para. 36.
"The applicants have contended that, in the circumstances of the case, the behaviour in question formed part of private morality which is not the State’s business to regulate. In their submission the matters for which they were prosecuted and convicted concerned only private sexual behaviour. The Court is not persuaded by this submission. It is evident from the facts established by the national courts that the applicants’ sadomasochistic activities involved a significant degree of injury or wounding which could not be characterised as trifling or transient. This, in itself, suffices to distinguish the present case from those applications which have previously been examined by the Court concerning consensual homosexual behaviour in private between adults where no such feature was present (see the Dudgeon judgment cited above, the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, and the Modinos v. Cyprus judgment of 22 April 1993, Series A no. 259)." Para. 45.