The ‘serious violence’ cases: racial and gender narratives in distinguishing ‘cruel’ from ‘incidental’ inflictions of bodily harm

The line of judgments through Donovan, Boyea, Brown, Dica and Konzani collectively provide what is currently regarded as the legal distinction between those activities that are always deemed criminal irrespective of the victim's consent, and those that may be lawful provided that the ‘victim’ consented. Where any bodily harm is involved, the crucial distinction that has emerged is that between acts which are by their nature violent and for which bodily harm seems to be too central to the activity to allow consent to apply, and those in which bodily harm can be dismissed as incidental or accidental consequences of lawful activity, where consent is not so excluded even if the activity might seem to involve violence. Given that in both cases the courts are seeking to pass judgment on consensual behaviour the distinction is inevitably a difficult one to justify objectively, and accepting its coherence as drawn in the cases requires one also to accept the legal moralism that informs it. The current violent/non-violent distinction has developed from an arguably broader test established in Donovan. In that case, Swift J ruled that if the violence used by a defendant is such as to make bodily harm a “probable consequence”,Footnote ²⁷ then the act in question is “in itself a criminal act” irrespective of consent.Footnote ²⁸ Swift J allowed for “well established exceptions”, i.e. violence that in his view was not real violence (i.e. rough horseplay conducted in a spirit of friendship and ‘properly conducted’ games and sports including boxing). In Attorney-General's Reference, Lord Lane CJ expanded this point, adding that consensual bodily harm was only to be regarded as a criminal act when inflicted “for no good reason”. Footnote ²⁹ In Boyea it was agreed that the authorities taken together meant that an inherently unlawful act meant “an assault intended or which is likely to cause bodily harm”, adding that the presence of “indecency” as the parties’ motivation might indicate that there was ‘no good reason’ and thus a crime committed.Footnote ³⁰ The majority of the House of Lords in Brown agreed that, since sexual expression/gratification had not previously been regarded as one of the “well-established exceptions” (Donovan) or a “good reason” (Attorney General's Reference) to this general prohibition set out in Donovan, Brown, Laskey and Jaggard, etc. were guilty of offences under s.47 and s.20 of the Offences Against the Person Act 1861 irrespective of consent. Lord Templeman succinctly captures the emerging coalition between violence and sexual depravity in the legal test when he states: “In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty.”Footnote ³¹ Unlike the violence used in say, rough and undisciplined horseplay or in boxing, violence used for sexual gratification is ‘cruel’ (and hence unlawful notwithstanding consent), because instead of using violence for a more laudable end, the effect of sado-masochism (SM) is simply to “breed and glorify cruelty” itself.Footnote ³²

Cases since Brown that have tackled the question of injuries sustained during sexual activity have read Brown as requiring that any use of force for sexual motivation, together with an appreciation by D that some injury might result, be regarded as cruel, i.e. unlawful violence. Thus, the conviction of a man for inflicting fatal injuries on his girlfriend during sexual activity in Slingsby Footnote ³³ was quashed because “the deceased sustained her unfortunate injuries not when she or the defendant were consenting to injury, but as an accidental consequence of the sexual activity which was taking place with her consent”.Footnote ³⁴ Given its physical nature, vigorous sexual activity will often carry certain risks of injury, but where no bodily harm is anticipated this is distinguished from exposing others to a risk intentionally or recklessly. Such acts are therefore not “violent” in the pejorative sense used in Brown. At first look this might seem to widen the scope of consent and allow it to operate where it was denied in the earlier cases. However, this is not so: Judge J in Slingsby makes it clear that if at the relevant time the parties did so much as turn their minds towards the possibility of bodily harm occurring, and nevertheless continue so to act, then bodily harm that results cannot be dismissed as “accidental”, and they have in fact crossed the line into ‘violence’ and ‘cruelty’. This is surely a very fine but very significant line when considering sexual behaviour especially: where injuries are inflicted within the contemplation of consenting parties in the course of ‘lawful’ activity such as horseplay, the fact that D contemplated some injury will not lead to criminalisation. But since sexual gratification is not a recognised exception to the general criminalisation of contemplated bodily harm (and indeed in Brown Lord Lowry had specifically warned of the dangers of “the powerful influence of the sexual instinct”Footnote ³⁵), consent only applies in cases such as Slingsby in which the bodily harm was a freak accident. As I discussed in the previous section of this article, when situated this way in discourse, sexualisation is key in the identification of savagery. It is this association between violence and sexuality and the consequent narrative of civilisation repudiating savagery in legal rhetoric that I now wish to focus upon.

Distinguishing acts that are directed towards violence itself – and thus towards a self-evidently negative, unproductive end – from acts directed to some positive end such as “perfect friendship” (Donovan), appeals to a set of ‘common-sense’ cultural assumptions about violence and its relationship to sexuality.Footnote ³⁶ Other commentators have drawn attention to the cultural contingency of distinguishing consensual acts by such an appeal, arguing that in characterising sexual acts carried out by consenting adults who do contemplate the infliction of bodily harm merely as violence, fails to grasp that, just as in boxing and horseplay, there is also a social and cultural meaning to the violence used by sado-masochists (Athanassoulis, Reference Athanassoulis2002).Footnote ³⁷ But as I argued in the first section of this article, the power to narrate the meaning or non-meaning of an act or behaviour and to inscribe it as dangerous or deviant is central to law's authority claim, and therefore any failure on the part of the judges in this regard should not be dismissed as mere ignorance or oversight. In describing sado-masochism not as an expression of sexuality but merely as cruel violence, the majority of the House of Lords in Brown removed from the defendants any possible claim to a right to private expression of sexuality (Moran, Reference Moran1996, p. 181).Footnote ³⁸ Furthermore, the word ‘cruel’ inevitably carries with it certain social and cultural connotations, especially when it is associated with sexual behaviour and norms. At its most general level, what unites all of those activities deemed lawful when performed with consent is that they are believed to be consistent with ‘civilised’ society because any harms resulting may be dismissed as unfortunate accidents that sometimes happen. Cruelty on the other hand, especially when fuelled by sexual desire, by its very unpredictable nature tends to be regarded as not so compatible. The idea that someone would deliberately go out of their way to inflict bodily harm for its own sake is savage and foreign to civilised sensibilities; it is excessive, frightening and driven by passions that are difficult to control and legitimately marginalised (Moran, Reference Moran1996, pp. 182–85). As has been discussed elsewhere, the speech of Lord Templeman in Brown is particularly notable for his moral rhetoric on sado-masochism, using extreme pejorative expressions such as “barbarity”, “evil”, “cult” and “uncivilized”.Footnote ³⁹ Heightening the impression of SM as a primitive sacrificial ritual, Lord Jauncey describes the “free flow of blood”, raising the prospect of HIV transmission, as well as the details of genital torture by burning, nailing and cutting.Footnote ⁴⁰ Lord Lowry asserted that in SM there was an “inevitable threat of Aids”,Footnote ⁴¹ a claim reinforced by Lord Templeman, who revealed that one member of the group later did die of Aids.Footnote ⁴² As has been well observed elsewhere, these assertions are not in themselves given to precise meaning in legal terms or empirical demonstration. For example, Stychin argues that Lord Lowry's suggestion that Aids is an “inevitable” threat in this context portrays the gay body as intrinsically contagious (Stychin, Reference Stychin1995, p. 126), fusing in rhetoric the physical risk of disease and the moral risk of contagion (p. 136), and reinforcing the traditional association between homosexuality and dangerous depravity (p. 135). Moran likewise attaches significance to ways in which the Lords’ rhetoric implies that the sado-masochistic violence at issue in this case is marked in the judicial rhetoric by contagion, unruliness and unpredictability – both in physical and in moral terms.Footnote ⁴³ I would take this analysis a stage further by suggesting that the assertions as to uncontrollable danger and especially an inevitable relationship between SM and the risk of Aids deploy a rhetorical strategy known to rhetoricians since classical times as logos, whereby the speaker or writer resorts to commonplace assumptions that the listener or reader is presumed to be able to relate to (Booth, Reference Booth2004, p. 61).Footnote ⁴⁴ Such a narrative resorted to by the judges in this case is not merely an effort to marginalise an unsavoury or dangerous sexual practice, but furthermore an illustration of the immense rhetorical effort considered necessary to establish the externality of the savagery that threatens civilised society.Footnote ⁴⁵

As well as behaviour to be regarded as anathema to law's own (regulated, civilised, reasoned, controlled) violence, the allusions to the ‘savagery’ of the sado-masochism, its ritualistic excess and the risks of infection may also be interpreted as racially constructed. Post-colonial critics have argued that sexuality is the crucial marker of Otherness, and is to be found, as Stoler puts it, “in any racist ideology”.Footnote ⁴⁶ Although I do not make any accusations of judicial racism as such, the discussion that follows seeks to argue that the narrative of savagery in identifying an act as illegal does indeed depend on interlocking negative presumptions about race, gender and sexuality. To associate homosexual sado-masochism with the risks of HIV transmission and unbounded physical dangers irrespective of the actual facts is to invoke a then very common stereotype relating both to sexuality and race. It is well documented that the fear of disease generated by such concerns for the permeability of national borders and their vulnerability to foreign invasion/infection has a productive role in terms of the ‘civilised’ self-identity of Western nations.Footnote ⁴⁷ In the 1980s and 1990s particularly, HIV/Aids was widely believed to have been brought to the UK and other Western countries from Africa, by a network involving primitive contraceptive methods among Africans (i.e. anal sex), female prostitutes acting as incubators of the infection and promiscuous Western homosexuals who might have ‘tried’ heterosexual intercourse with an infected prostitute and then begun spreading it about with the abandon assumed to be common to the typical gay man (Treichler, Reference Treichler1988, pp. 45–52).Footnote ⁴⁸ At the time at which the Brown judgment was handed down by the House of Lords, health (infectious diseases) and sexuality were very much racial issues in social and political discourse (Martin, Reference Martin1994). In her account of popular representations of the human immune system at the time of Brown, Emily Martin identifies a wealth of metaphors relating to defence and race that illuminate this point. She describes how the onset of the HIV/Aids crisis in the early 1980s created a new interest in representations of the immune system in the media.Footnote ⁴⁹ According to the new world view post-Aids, the immune system in the popular imagination came to be associated with national immigration control, defending the body imagined as a nation state, by distinguishing between “self” and “non-self”, and the part understood to represent ‘non-self’ predictably characterised as “foreign and hostile”.Footnote ⁵⁰ Reviewing treatments of the subject in the 1980s, Martin notes that those hostile ‘non-self’ elements tended to be referred to in popular science literature using such expressions as “the threatening horde”Footnote ⁵¹ and “illegal aliens”.Footnote ⁵² A certain type of white blood cell (the macrophage) whose function seems to be to ‘eat’ foreign cellular material, is described in one medical text from the 1980s as “cannibal[istic]”, and Martin infers from this description an impression of these cells as “barbaric and savage in their willingness to eat any manner of thing at all”.Footnote ⁵³ Martin's attention to the language of scientific discourse – a form of description traditionally (though often without justification) reserving for itself considerable authority as objective – is an important link between the racial dynamic of the spread of HIV as a form of savage threat to civilised society and the criminal courts.

In pursuing a multidimensional approach, the relevance of sexuality may also be explored in relation to gender, and the feminisation of both defendant and victim in these cases. With regards to the defendant, the gender narrative is one that emphasises the non-normativity of the male behaviour in question with a form of female perversion. Remaining with the references to HIV a little longer, Lord Templeman's and Lord Jauncey's suggestion that the parties in the case were so reckless as to endanger both their own life and the lives of many others connects with a stereotype common at the time, of the ‘typical’ gay man whose addiction to perversity led him to an almost “suicidal” degree of promiscuity (Bersani, Reference Bersani1988, pp. 210–12).Footnote ⁵⁴ This was and is a view that echoes the nineteenth-century belief that both the source and spread of syphilis was the responsibility of deviant female sexuality – namely prostitutes that seduced and distracted otherwise respectable men (Treichler, Reference Treichler1988, p. 45).Footnote ⁵⁵ The association of the gay body with that of the deviant female prostitute, coupled with the widely held belief (encouraged in scientific publications in the early 1980s) that it was only possible to spread HIV through anal intercourse, entrenched a gendered and heteronormative view of Aids. On this view, women could not be active transmitters of HIV unless they were deviant to the extent that their sex life was – as Treichler puts it – “quasi-homosexual”, i.e. engaging in anal intercourse with large numbers of men.Footnote ⁵⁶ Of course, the belief that HIV/Aids is spread only through anal intercourse has not lasted, but there is ample evidence that the homophobic/sexist popular association between the sexually deviant woman and the ‘typical’ gay man (both as masochistically immoral) still operates (Dean, Reference Dean2000). On this point racial and gender narratives come together: the stereotype of the sexually deviant woman is most deeply embedded within racial and Orientalist stereotypes of promiscuous women of colour. Colonial stereotypes of the early nineteenth century played on the exoticness – and consequent excitement and danger – of colonised women and the excessiveness of their sexuality. As Ann Stoler explains, literature produced for consumption by colonial elites made ample use of “lurid descriptions of sexual license, promiscuity, gynaecological aberrations, and general perversion marking the Otherness of the colonized”.Footnote ⁵⁷ Hutchinson has argued that such stereotypes of ‘Othered’ promiscuity has led to a devaluation of Black female experience both in legal institutions and in (White-focused) feminist political movements.Footnote ⁵⁸ Feminist scholars have previously noted that depictions of savage femininity have been used negatively to distinguish civilised (masculine) culture. Barnett, for example, refers to the Furies of the ancient Greek dramas depicting the murder of Clytemnestra by her children Orestes and Electra. These creatures of revenge that pursue murderers on behalf of their victims, that Euripides’ Orestes describes as the “priestesses of the dead, goddesses of terror” with “dog-faces and gorgon-eyes”, are read by feminists as symbols of a primordial feminine world before civilisation.Footnote ⁵⁹ The Furies are finally banished by Apollo in Aeschylus’ The Orestia and are superseded by a court of law founded not on bloody savage revenge but rather on principles of reason, argument and persuasion. Barnett describes this as the “founding moment of patriarchy”.Footnote ⁶⁰ In these ways then, uncivilised sexual deviance has long been associated with a racialised and a gendered threat to civilised health and morals and the majority judgment in Brown may be read accordingly.

In order most forcefully to identify the non-normative with the savage, legal rhetoric of the kind used in Brown also demonstrates another rhetorical strategy. Treating both actual and possible consequences of SM as equally serious, their Lordships referred to terrible injuries that did not actually occur, to blood-born diseases that were never transmitted, and to widespread corruption that never took place. These are nightmarish scenarios that take place only within the judicial narrative. They imply an emotional appeal – a strategy of persuasion known to rhetoricians as pathos – to bear in mind the victims of the sadistic conduct, both that featured in the case itself and also other potential victims that might have been corrupted had the group not been interrupted by the police.Footnote ⁶¹ A consequence of this effort, however, is that the rhetoric used by the Lords arguably embraces some of the excessiveness of passion and violence that it condemns, and thereby risks being seen to lose some of the moral high ground. Critics adopting post-structuralist critical approaches have long argued that law and legal judgment never really occupied moral high ground in any logical or ultimately justifiable way. Derrida, for example, argues that law is always deconstructable as an ultimately arbitrary moment of violence through which it asserts its own authority over that which it seeks to subdue (Derrida, Reference Derrida, Cornell, Rosenfeld and Carlson1992). However, in order to maintain a semblance of distance between law and savagery, law's violence must be shown to be only reluctantly inflicted, and within legitimate and clearly demarcated limits (Derrida, Reference Derrida, Cornell, Rosenfeld and Carlson1992, pp. 33, 35).Footnote ⁶² The risk that law should be perceived to be infected by the very excesses of passion that Brown condemned has prompted subsequent appellate judges to rein in the more obviously controversial (i.e. the most difficult to present as universal common sense) aspects of its rhetoric.Footnote ⁶³ It has also led academic commentators to challenge the logic of violence at work in the judgment. For example, Athanassoulis's critique of Brown involves offering a re-description of sado-masochism that emphasises calm, control and professionalism, and has very little in common with Lord Templeman's depiction of wild excess: “Sado-masochistic practises are governed by rules and boundaries set up by the masochist, who controls them by the use of special passwords. The masochist's consent is specific and mapped out in detail prior to any activity.”Footnote ⁶⁴ Athanassoulis wants to criticise the legal position on sado-masochism by inscribing the acts in question with law, normativity, boundedness, predictability. His own rhetoric deploys such words as “governed”, “rules”, “boundaries”, “control”, “passwords”.Footnote ⁶⁵ Although this legalistic re-description is aimed at refuting the House of Lords’ moralism and drawing attention to the excessive preoccupation in their Lordships’ narratives with the extreme dangers of SM, the narrative effect is actually very similar, since it implies the same moral hierarchy between the civilised and the savage. Athanassoulis himself accepts that activities that cannot be aligned with law in this way may justifiably be criminalised. Similarly, consider the Court of Appeal judgment of Wilson,Footnote ⁶⁶ in which the rhetoric of cilvilised/savage is used to achieve the opposite result to that achieved in Brown. In that case there was no question as to whether Mrs Wilson had consented to being branded by her husband (she had), nor as to whether Mr Wilson had intended to inflict bodily harm (he had). The only question was whether he was entitled to rely on her consent as a defence to a s.47 assault charge or whether, as the trial judge had directed, following Brown, the branding was a crime irrespective of consent as a consequence of it involving the intentional infliction of bodily harm. The Court of Appeal decided that there was no criminal offence committed, reading the branding as non-violent, the motivation as non-sexual, and that given these readings, the criminal law has no place in private marital affairs. Other critics have commented that the distinguishing of Brown by the Court of Appeal in Wilson shows blatant heteronormativity: since Mr Wilson had intended to inflict actual bodily harm and that there was evidence on which the Court could have found a sexual motive, all that separated the branding in the two cases was that the latter took place in the traditionally private domestic setting of a lawful marriage (Khan, Reference Khan2009, pp. 108 − 109). However, further to these observations, Russell LJ's rhetoric in Wilson shows up another way in which the repudiation of savagery operates to lend authority to legal decisions. Like the characterisation of sado-masochism by Athanassoulis and by Stychin, Russell LJ's emphasis of the predictability of Mr and Mrs Wilson's actions – her “instigation” of the branding presumably implies that there was little chance of escalation – is itself a refutation of savagery. Also, Russell LJ's refusal to consider the possibility that the branding might have led to even more serious infection or injury exposes a further critique of the speculative imaginings of their Lordships in Brown, and of Lord Jauncey's assertion that “[w]hen considering the public interest potential for harm is just as relevant as actual harm”.Footnote ⁶⁷ In Wilson, Russell LJ took the view that such generalising reasoning was itself excessive because if applied too widely, it would also threaten to criminalise activities that they did not intend to condemn. Therefore in contrast to Brown, there is no speculation in Wilson as to the possible dangers of further infection or harm. Furthermore, rather than the general prohibition of intentionally inflicted bodily harm favoured in Donovan, Boyea and Brown, Russell LJ preferred that “the law should develop upon a case by case basis rather than upon general propositions”.Footnote ⁶⁸ Although previous commentators may be right to say that on the point of law Russell LJ misapplies Brown, nevertheless the two judgments may be read as consistent on a rhetorical level.Footnote ⁶⁹ Both cases make a claim to legitimacy through a repudiation of savagery, but whereas in Brown this was achieved by emphasisng the harms inflicted and speculating on how much worse these could have been, Russell LJ implicitly includes the dangers of exactly that sort of excessive rhetoric in emphasising the civilised nature of Mr and Mrs Wilson's behaviour. Russell LJ's insistence that the criminal law should apply on a case by case basis acknowledges that there is a danger that, if applied excessively (i.e. to the point at which there may be genuine cause to doubt the effects of its application, such as the criminalisation of marital privacy), the law may itself be in danger of become compromised by, and implicated in, savagery.

Consent in non-violent sexual behaviour

The recent judgments on reckless HIV transmission have provided further material for debate on the significance of sexualisation in the distinction between savage and civilised in legal rhetoric. In the Court of Appeal decision of Dica, Judge LJ held that in cases where there was no obvious violence or intention to inflict bodily harm, then consent would be available, and it would be a question of fact as to whether the defendant (D) was reckless as to its infliction and also to whether the victim (V) consented to the risk of harm. Judge LJ asserts that consensual intercourse without intending to spread infection is “not indulging in serious violence for the purposes of sexual gratification”,Footnote ⁷⁰ and therefore if the victim did in fact consent to the risk of HIV transmission (and that would be a question for a juryFootnote ⁷¹) then that consent provides a good defence for the defendant. Although HIV is very clearly treated as an example of ‘bodily harm’, the way in which it is inflicted (through transmission of bodily fluids) seems to constitute a new distinction from Brown, Donovan and Boyea, inasmuch as it involves no ‘serious violence’. However, despite the apparently greater sympathy for the consent defence expressed in Dica and Konzani for bodily harm inflicted in this way, the same discursive repudiation of the savage through sexualisation and interconnecting race and gender narratives are discernable here also. It has been noted by other critics (namely Monk, Reference Monk2009) that in Dica, Judge LJ conspicuously goes out of his way to disassociate lawful consent to a risk from sexual motivation. I would add that this is not merely, as Monk argues, a symptom of judicial discomfort on the topic of sexually motivated risky behaviour, but also a sign of the far-reaching impact of the association between non-normative sexuality and savagery in the Lords' rhetoric in Brown. Judge LJ held that juries are to consider how ‘likely’ it was that V intended their consent to sexual intercourse also extended to the risk of HIV transmission (and thus to the risk of bodily harm). Judge LJ gives two examples of lawfully and consensually running the risk of HIV transmission for non-sexual reasons, and pretty obscure ones at that: a Roman Catholic couple where one party is HIV positive, who are morally “unable” to use contraception, and a young couple, again where one or both parties is HIV positive, desperate to have a child of their own.Footnote ⁷² These non-sexual motivations for running the risk of HIV transmission would be lawful provided that the consent was specifically ‘informed’. However, it also leaves open the theoretical possibility that a jury might regard that V had consented to the risk of HIV transmission in the absence of disclosure simply because s/he was well informed about the general risks of HIV, perhaps knew something about D having had, say, a partner who was HIV-positive, and demonstrated a readiness to run that risk for no better reason than for sexual gratification.Footnote ⁷³ It may have been this possibility that led Judge LJ in the following case of Konzani to restrict it even further by drawing a formal distinction – never previously recognised by the courts in cases charged under the Offences Against the Person Act 1861 – between general and informed consent: “There is a critical distinction between taking a risk of the various, potentially adverse and possibly problematic consequences of sexual intercourse, and giving an informed consent to the risk of infection with a fatal disease.”Footnote ⁷⁴ Judge LJ then adds: “Her consent is not properly informed, and she cannot give an informed consent to something of which she is ignorant.”Footnote ⁷⁵

Judge LJ's stated aim in making explicit the legal requirement of informed consent was better to reflect modern concerns about individual autonomy, and indeed many legal theorists do accept that respect for individuals' autonomy as moral agents is the basis on which the value of informed consent rests.Footnote ⁷⁶ However, if a concern for autonomy was the complete answer, it is legitimate to ask why, unlike in Dica or the other cases in which V is held to have actively consented to a risk, Judge LJ does not leave any room at all for D to argue that V could have and should have taken responsibility for herself in the absence of specific disclosure? Konzani goes well beyond criminalising only those defendants that intentionally deceive V by concealing their HIV status. Consent is also denied to the non-disclosing defendant even if he correctly believed that V had consciously taken a calculated risk, knowing the risks of HIV transmission in general terms and knowing that D had practised unsafe sex or needle-sharing in the past. Admittedly, in such a case V would lack the information that would ensure a fully informed decision. But previously to this case, the courts had never insisted on specific disclosure of the full magnitude of a risk before allowing consent or presumed consent to excuse unintentionally inflicted bodily harm.Footnote ⁷⁷ It cannot be likely that the victims of Jones or Aitken for example, having had the specific risks explained to them in advance, would have given ‘informed consent’ to the horseplay deemed to be lawful in those cases. What separates the Konzani formulation from these cases of lawfully inflicted bodily harm is not V's opportunity to make an informed decision to take a risk, but rather the sexual motivation of the defendant. It is difficult to read Judge LJ's judgment without noticing the stress that he lays on Feston Konzani's libidinous motivations, described in gratuitously graphic sexual terms: “[he] ejaculated inside of her”.Footnote ⁷⁸ The implication that I draw here is that Lord Templeman's distinction between civilised and uncivilised behaviour continues to inform the modern judicial attitude towards sexual motivation, leading the courts to adopt a different standard when the motivation for the dangerous behaviour is clearly sexual gratification, compared to those cases where no sexual motivation was accepted. Where the motivation for running a risk is merely sexual, as opposed to, say, religious, it is considered to be feckless, unproductive and not conducive to a civilised society. There are historical parallels to be drawn here both in moral and economic terms. The libidinous body – be it the unruly slave of colonial settlements who lust after White women and allow fertile land go to waste or the sexually reckless modern man – is directed only towards death, and requires a civilising authority to turn it towards a positive end.Footnote ⁷⁹ The tendency in the courts to associate bodily harm inflicted for sexual gratification with uncivilised, savage masculinity (as discussed above in relation to Brown, Donovan and Boyea) means that even in the absence of obvious violence, sexual gratification as a motivating factor must be treated with a caution not otherwise deemed necessary. Konzani formalises this alignment with Brown, etc. in the sense that, given how unlikely it would be for a person to give explicit informed consent specifically to the risk of HIV transmission except where there is a very good reason to do so (i.e. a non-sexual one), the informed consent requirement effectively prevents D from relying on the defence.

Problematising consent in legal rhetoric through a feminisation of the ‘victim’

In the first section I suggested that one of the ways in which savagery is distinguished from the civilised is by dissociating the victim of savagery from savagery itself. In The Tempest, Miranda, the virgin adolescent daughter of colonial settler Prospero, has traditionally been dissociated from the savage by removing any reference in her own speech to Caliban's deviant sexuality. As we saw in the first section, the effect of thus removing Miranda from the discourse of savagery is that the audience can participate in the condemnation of the ‘violation’ without worrying that the would-be victim might herself already be corrupted. To put it in modern legal terms, it avoids having to consider the troubling question as to whether Miranda might have consented to Caliban's sexual advances. Considering that the basis of Prospero's authority to rule depends upon his maintaining a plausible moral distinction between the civilised and the savage, such an idea carries potentially disastrous consequences. Caliban may be emasculated by the domination of Prospero, but he nonetheless represents a masculinity that poses a danger to civilised femininity, the latter being vulnerable on account of her supposed innocence. The modern criminal legal position inherited from Donovan and Brown follows this same logic, and this being so it might be imagined that the intentions, capacity and competence of the ‘victim’ – indeed the very question as to whether that victim consented at all – would be regarded as irrelevant. But in rejecting the liberal insistence that consent and not moral repugnance at the act in question ought to determine legality (Bamforth, Reference Bamforth1994),Footnote ⁸⁰ the courts still devote much energy to the status and quality of the victims’ consents. Why should this be? The answer seems to be that, in seeking to achieve plausibility for distinguishing sexually motivated violence from bodily harm inflicted for ‘good reasons’, the courts have also found it necessary to supplement their moralism with a further narrative that speaks more directly to liberal concerns about consent. Hence, as well as condemning ‘cruel violence’, judicial rhetoric undermines the quality and reliability of the victim's consent, associating the victim of an illegal (consensual) act with feminine weakness. This genderising of consent and of the capacity of a person to give valid consent has been identified elsewhere in legal narrative. Keywood, for example, has argued that the “apparently inexorable identification of women with their bodies” (and hence with sensibility rather than with reason) has contributed to legal reasoning in which the courts have found female patients to lack the competence necessary to refuse proposed medical care. This section therefore forms the second part of my reading of the judicial rhetoric in these cases as a production of law through the repudiation of savagery.Footnote ⁸¹

This is a narrative that is discernable in the judicial rhetoric, which seeks to strengthen the association between the defendant and the savage by drawing attention away from signs that a ‘victim’ willingly participated in a harmful non-normative act. This is a rhetorical turn that ensures that, contrary to the liberal perspective, the defendant and the victim are clearly distinguished in moral terms. Thus the condemnation and punishment of malign or deviant masculinity makes ‘moral’ sense because the victim herself may be positioned on the side of the civilised: redeemable, albeit temporarily compromised. Since consent is a tricky matter of fact, the discernable gender stereotypes of the decisive deviant masculine and the innocent wavering feminine provide a supplementary rhetorical weapon in the armoury of legal moralism. The judgments of Donovan, Boyea and Brown each give the impression that the criminal perversion and excessiveness of the defendant's motivation is more reliably identifiable than is the extent of the knowledge, understanding and willingness of the victim. In this way, the victim (whether male or female) is identified with the vulnerable, compromised feminine voice that we described above being suppressed by legal discourse: not competent to speak decisively about her own desires or needs, relying instead on the protection of authoritative masculinity (law) from deviant influences.

Take the appeal of Donovan, for example, who was very reluctantly acquitted because, although his beating of a seventeen-year-old girl would have been a crime irrespective of consent so long as bodily harm was a “probable consequence”, the trial judge had erroneously not presented that as a question to the jury, asking them instead to convict or acquit on the basis of whether or not the victim consented.Footnote ⁸² The preference for the Crown's submission that consent should be irrelevant may be explainable by the fact that it makes a very large area of uncertainty – namely the victim's own desires and intentions – an irrelevance, the only relevant thing being the deviance of the defendant. It is clear from Swift J's judgment that the issue of the victim's consent was a difficult one since the evidence was conflicting. First, there is an overheard private telephone conversation where “there was talk between the appellant and the prosecutrix which left no doubt that she had expressed her willingness to submit herself to the kind of conduct to which he was addicted”.Footnote ⁸³ Next, we learn that the girl “did not take seriously” Donovan's opening line when they met at Marble Arch, “Where would you like to have your spanking, in Hyde Park, or in my garage?”, and then that she returned home later that night “looking pale and ill”, reporting to the effect that she had been “compelled or induced by fear” to submit to Donovan.Footnote ⁸⁴ We get the impression of a girl who does not know what she wants, who wavers between yes and no, whose own testimony is frustrating and unreliable at best, and an unsound basis on which to base a legal judgment. She is rather to be pitied than taken seriously as a witness to her own degradation, and this impression is further underlined by the fact that she is referred to by Swift J only as a “girl” and therefore as a mere child despite in fact being seventeen. In contrast, Donovan himself is presented as unwavering in his commitment to his perversion. As I have already said, his very first line upon meeting the victim unambiguously announced his intensions. Swift J further elaborates that he was “addicted to a form of perversion”Footnote ⁸⁵ which involved violence, and it was “not in dispute that the motive of the appellant was to gratify his own perverted desires”.Footnote ⁸⁶ Like Puar's description of the reaction in the US to 9/11 as “homonationalism”, I want to draw attention here to an oppressive gender narrative in the judicial response to consensual violence. In this particular case the jury found that the victim did not consent and the defendant's conviction was quashed due to the trial judge's misdirection. However, the legacy of Swift J's judgment is that in future cases the reprehensibility of D's actions and motives would be a more reliable basis for convicting disgusting behaviour than V's consent or lack of.

A similar analysis of Boyea Footnote ⁸⁷ and Brown also lends support to reading a gender narrative into the determination of the legal issue. Boyea involved a male defendant appealing against a conviction for a sexually motivated assault on one Miss Collins. Here again both V's consent and the criminality of D's act were at issue and as in Donovan, the question of consent was frustratingly undecidable. Glidewell LJ's judgment continually draws attention to the unreliability of both parties’ testimonies on the question of consent, and particularly to the problems encountered in gaining a consistent account from the victim herself. For one thing, “Both parties were under the influence of alcohol to a very considerable extent”, and the Court approved the trial judge's warning to the jury that, on the subject of Miss Collins's evidence: “If you come to the conclusion that she had drunk more than she told you about when giving evidence and that that was not because she genuinely cannot recall what she did drink but was a deliberate lie, you would have to consider whether that undermines your confidence in the rest of her evidence or not.”Footnote ⁸⁸ On the other hand, the criminality of the defendant's act was clear, since it was without doubt “an assault intended or which is likely to cause bodily harm” and being “accompanied by indecency” was committed for no good reason.Footnote ⁸⁹ Returning to Brown once again, although the case involved male homosexual violence, the gender narrative with respect to this issue of the victim's consent is clearer still. Although as is well known Lord Templeman's judgment was always based on his view that sado-masochism was criminal irrespective of consent, he nevertheless devotes a large amount of time to questioning the validity of the consents of the victims. Lord Templeman asserts that the consents of the victims were “dubious or worthless”. In support of this he points out that whereas the appellants were “middle-aged men”, the victims were “youths, some of whom were introduced to sadomasochism before they attained the age of 21”Footnote ⁹⁰ and moreover, “drink or drugs were employed to obtain consent and increase enthusiasm”.Footnote ⁹¹ Lord Jauncey similarly warns that “the possibility of proselytisation and corruption of young men is a real danger”,Footnote ⁹² implying that the older men used devious strategies for seducing the suggestible and weak-minded. As in Boyea and Donovan, the significance of these statements regarding the quality of the victims’ consents is that it further reveals the rhetorical work being done throughout the judgments to persuade that there are certain acts that cannot be accommodated in a civilised society. It adds a supplementary rhetorical layer to the narrative of the perverted masculine intent of the defendants as a more reliable basis for judgment than the emasculated, feeble consents of the victims.

Finally, the HIV transmission cases may equally be read as tapping into a narrative of innocence. The special status accorded to sexual gratification as a motivation for inflicting bodily harm applied in these most recent cases means that no matter how well informed V is in general terms of the risks of infection or even of D's own previous sexual behaviour, the validity of consent does not depend on V's knowledge, but simply on D's disclosure. I suggested above that the effect of this decision is to make it very difficult for a defendant to raise the defence of consent where the motivation for his behaviour was merely sexual gratification and that D will face prosecution even when V was known to be in a position fully to take responsibility for her own protection due to her knowledge about HIV generally and about D's past risky behaviour. With this in mind, it seems to me appropriate to draw certain implications from Judge LJ's decision also to go to some lengths to establish that Feston Konzani's first victim (referred to as ‘DH’) did not have any such knowledge, either about Konzani himself, or about the risks of sex or HIV in general. For example, Judge LJ reminds us that this girl was just fifteen years old and furthermore was a virgin until Konzani met her. He also includes in his judgment an extract from the girl's cross-examination by the prosecuting barrister in which it was established that she was not even aware that there was an “Aids problem in Africa”, the continent from which Konzani had come, and would be deported back to after completing his jail term.Footnote ⁹³ Although in very narrow terms the ruling in Konzani that D always bears a duty to disclose his HIV infection means that these comments about the girl's general ignorance are strictly obiter, they nevertheless play an important role in the judgment, namely in shoring up the persuasiveness of his appeal to the cultural belief that HIV transmitted for no better reason than the defendant's own sexual gratification is an especially reprehensible thing to do. Showing that DH was indeed profoundly ignorant, both of HIV/Aids in general and of Konzani's infection in particular, underlines for an audience that HIV – more than other sorts of bodily harm – is as much about information as it is about harm, and about the gross imbalance of informational power between the parties in this regard. Although Judge LJ also reveals that the other two women infected were considerably older and more experienced than DH and certainly old enough to know better, references to their ‘devastation’ invites the reader to identify emotionally with them as well, and to conclude that even if the victims might have exercised more effective self-protection, Konzani cynically took advantage of his informational status for no good reason, and thus poses a danger to vulnerable young women everywhere.