Whether the law should enforce moral values?
This is more controversial, and there has been considerable debate about whether the law should be used to enforce moral values. It can be argued that it is not the function of criminal law to interfere in the private lives of citizens unless it is necessary to try to impose certain standards of behavior. The Wolfenden Committee reporting on homose.xual offences and pro.stitution (1957) felt that intervention in private lives should only occur in order to:
- preserve public order and decency
- protect the citizen from what is offensive or injurious
- provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable Lord Devlin disagreed. He felt that ‘there are acts so gross and outrageous that they must be prevented at any cost’. He set out how he thought it should be decided what type of behaviour be viewed as criminal by saying:
How are the moral judgments of society ascertained?
It is surely not enough that they should be reached by the opinion of the majority; it would be too much to require the individual assent of every citizen. English law has evolved and regularly uses a standard which does not depend on the counting of heads. It is that of the reasonable man. He is not to be confused with the rational man. He is not to be expected to reason about anything and his judgment may be largely a matter of feeling ... for my purpose I should like to call him the man in the jury box It is not nearly enough that to say that a majority dislike a practice: there must be a real feeling of reprobation ... I do not think one can ignore disgust if it is deeply felt and not manufactured. Its presence is a good indication that the bounds of toleration are being reached.’
There are two major problems with this approach. First, the decision of what moral behaviour is criminally wrong is left to each jury to determine. This may lead to inconsistent results, as there is a different jury for each case. Second, Lord Devlin is content to rely on what may be termed ‘gut reaction’ to decide if the ‘bounds of toleration are being reached’. This is certainly not a legal method nor a reliable method of deciding what behaviour should be termed criminal. Another problem with Lord Devlin’s approach is that society’s view of certain behaviour changes over a period of time. Perhaps because of the lack of agreement on what should be termed ‘criminal’ and the diffi culty of fi nding a satisfactory way of legally defining such behaviour, there is another problem in that the courts do not approach certain moral problems in a consistent way. This can be illustrated by confl icting cases on when the consent of the injured party can be a defence to a charge of assault.
It is surely not enough that they should be reached by the opinion of the majority; it would be too much to require the individual assent of every citizen. English law has evolved and regularly uses a standard which does not depend on the counting of heads. It is that of the reasonable man. He is not to be confused with the rational man. He is not to be expected to reason about anything and his judgment may be largely a matter of feeling ... for my purpose I should like to call him the man in the jury box It is not nearly enough that to say that a majority dislike a practice: there must be a real feeling of reprobation ... I do not think one can ignore disgust if it is deeply felt and not manufactured. Its presence is a good indication that the bounds of toleration are being reached.’
There are two major problems with this approach. First, the decision of what moral behaviour is criminally wrong is left to each jury to determine. This may lead to inconsistent results, as there is a different jury for each case. Second, Lord Devlin is content to rely on what may be termed ‘gut reaction’ to decide if the ‘bounds of toleration are being reached’. This is certainly not a legal method nor a reliable method of deciding what behaviour should be termed criminal. Another problem with Lord Devlin’s approach is that society’s view of certain behaviour changes over a period of time. Perhaps because of the lack of agreement on what should be termed ‘criminal’ and the diffi culty of fi nding a satisfactory way of legally defining such behaviour, there is another problem in that the courts do not approach certain moral problems in a consistent way. This can be illustrated by confl icting cases on when the consent of the injured party can be a defence to a charge of assault.
The first is the case of Brown (1993) 2 All ER 75.
In Brown (1993) 2 AII ER 75 Several men in a group of consenting adult sado-masochists were convicted of assault causing actual bodily harm (s 47 Offences Against the Person Act 1861) and malicious wounding (s 20 Offences Against the Person Act 1861). They had carried out in private such acts as whipping and caning, branding, applying stinging nettles to the genital area and inserting map pins or fish hooks into the penises of each other. All of the men who took part consented to the acts against them. There was no permanent injury to any of the men involved and no evidence that any of them had needed any medical treatment. The House of Lords considered whether consent should be available as a defence in these circumstances. It took the view that it could not be a defence and upheld the convictions.
Lord Templeman said: The question whether the defence of consent should be extended to the consequences of sado-masochistic encounters can only be decided by consideration of policy and public interest ... Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infl iction of pain is an evil thing. Cruelty is uncivilised.’
In Brown (1993) 2 AII ER 75 Several men in a group of consenting adult sado-masochists were convicted of assault causing actual bodily harm (s 47 Offences Against the Person Act 1861) and malicious wounding (s 20 Offences Against the Person Act 1861). They had carried out in private such acts as whipping and caning, branding, applying stinging nettles to the genital area and inserting map pins or fish hooks into the penises of each other. All of the men who took part consented to the acts against them. There was no permanent injury to any of the men involved and no evidence that any of them had needed any medical treatment. The House of Lords considered whether consent should be available as a defence in these circumstances. It took the view that it could not be a defence and upheld the convictions.
Lord Templeman said: The question whether the defence of consent should be extended to the consequences of sado-masochistic encounters can only be decided by consideration of policy and public interest ... Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infl iction of pain is an evil thing. Cruelty is uncivilised.’
Two of the judges dissented and would have allowed the appeals. One of these judges, Lord Slynn, expressed his view by saying:
‘Adults can consent to acts done in private which do not result in serious bodily harm, so that such acts do not constitute criminal assaults for the purposes of the 1861 [Offences Against the Person]Act. In the end it is a matter of policy in an area where social and moral factors are extremely important and where attitudes could change. It is a matter of policy for the legislature to decide. It is not for the courts in the interests of paternalism or in order to protect people from themselves to introduce into existing statutory crimes relating to offences against the person, concepts which do not properly fit there.’
The second case is that of Wilson (1996) Crim LR 573,
‘Adults can consent to acts done in private which do not result in serious bodily harm, so that such acts do not constitute criminal assaults for the purposes of the 1861 [Offences Against the Person]Act. In the end it is a matter of policy in an area where social and moral factors are extremely important and where attitudes could change. It is a matter of policy for the legislature to decide. It is not for the courts in the interests of paternalism or in order to protect people from themselves to introduce into existing statutory crimes relating to offences against the person, concepts which do not properly fit there.’
The second case is that of Wilson (1996) Crim LR 573,
Where a husband had used a heated butter knife to brand his initials on his wife’s buttocks, at her request. The wife’s burns had become infected and she needed medical treatment. He was convicted of assault causing actual bodily harm (s 47 Offences Against the Person Act 1861) but on appeal the Court of Appeal quashed the conviction.
Russell LJ said: We are firmly of the opinion that it is not in the public interest that activities such as
the appellant’s in this appeal should amount to a criminal behaviour. Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judg-ment, a proper matter for criminal investigation, let alone criminal prosecution ... In this field, in our judgment, the law should develop upon a case by case basis rather than upon general propositions to which, in the changing times we live, exceptions may arise from time to time not expressly covered by authority.’
The similarities in the two cases are that both activities were in private and the participants were adults. In Brown there were no lasting injuries and no evidence of the need for medical treatment, whereas in Wilson the injuries were severe enough for Mrs Wilson to seek medical attention (and for the doctor to report the matter to the police). The main distinction which the courts relied on was that in Brown the acts were for sexual gratifi cation, whereas the motive in Wilson was of ‘personal adornment’. Is this enough to label the behaviour in Brown as criminal? (See sections 8.9.3 and 8.9.4 for further discussion of the decision in Brown and also the decision of the European Court of Human Rights in the case.).
The reference in Russell LJ’s judgment to changing times acknowledges that soci-ety’s view of some behaviour can change. There can also be disagreement about what morals should been forced. Abortion was legalised in 1967, yet some people still believe it is morally wrong. A limited form of euthanasia has been accepted as legal with the ruling in Airedale NHS Trust v Bland (1993) 1 All ER 821, where it was ruled that medical staff could withdraw life support systems from a patient, who could breathe unaided but was in a persistent vegetative state. This ruling meant that they could withdraw the feeding tubes of the patient, despite the fact that this would inevitably cause him to die. Many people believe that this is immoral, as it denies the sanctity of human life.
All these matters show the difficulty of agreeing that one of the purposes of criminal law should be to enforce moral standards. As moral values will have an effect on the law, what conduct is criminal may, there-fore, vary over time and from one country to another. The law is likely to change when there is a change in the values of government and society.
Russell LJ said: We are firmly of the opinion that it is not in the public interest that activities such as
the appellant’s in this appeal should amount to a criminal behaviour. Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judg-ment, a proper matter for criminal investigation, let alone criminal prosecution ... In this field, in our judgment, the law should develop upon a case by case basis rather than upon general propositions to which, in the changing times we live, exceptions may arise from time to time not expressly covered by authority.’
The similarities in the two cases are that both activities were in private and the participants were adults. In Brown there were no lasting injuries and no evidence of the need for medical treatment, whereas in Wilson the injuries were severe enough for Mrs Wilson to seek medical attention (and for the doctor to report the matter to the police). The main distinction which the courts relied on was that in Brown the acts were for sexual gratifi cation, whereas the motive in Wilson was of ‘personal adornment’. Is this enough to label the behaviour in Brown as criminal? (See sections 8.9.3 and 8.9.4 for further discussion of the decision in Brown and also the decision of the European Court of Human Rights in the case.).
The reference in Russell LJ’s judgment to changing times acknowledges that soci-ety’s view of some behaviour can change. There can also be disagreement about what morals should been forced. Abortion was legalised in 1967, yet some people still believe it is morally wrong. A limited form of euthanasia has been accepted as legal with the ruling in Airedale NHS Trust v Bland (1993) 1 All ER 821, where it was ruled that medical staff could withdraw life support systems from a patient, who could breathe unaided but was in a persistent vegetative state. This ruling meant that they could withdraw the feeding tubes of the patient, despite the fact that this would inevitably cause him to die. Many people believe that this is immoral, as it denies the sanctity of human life.
All these matters show the difficulty of agreeing that one of the purposes of criminal law should be to enforce moral standards. As moral values will have an effect on the law, what conduct is criminal may, there-fore, vary over time and from one country to another. The law is likely to change when there is a change in the values of government and society.
Tags : Criminal Law