Twenty years have passed since Brown was handed down and the principles the House of Lords laid down are still a topic of discussion. Others criticise it for being too paternalistic – if one can consent to the risk of potentially developing cancer through smoking, branding one’s body with ink to make a tattoo or the risk of injury in martial arts then why should otherwise consensual activity in someone’s bedroom be subject to the criminal law? Supporters of this view commonly contrast Brown with R v Wilson QB 47 which involved heterosexual sadomasochistic activity, though a different act from those in Brown, which was found lawful only a few years later by the Court of Appeal. The judgment has received criticism in some academic circles because, it is thought, if the facts had been different and involved heterosexual sadomasochistic activity it would have been found lawful. The House of Lords, by a 3–2 majority, decided that the consensual infliction of harm on another person for sexual gratification was not an act the law should permit. R v Brown 1 AC 212 is a case most law students could tell you the facts of even years after graduating, so remarkable are they.
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