Can You Consent to Being Hurt? How Other Legal Systems Answered

The 1993 ruling that consent is no defence to actual bodily harm in this context is often described in community writing as though it were a fact of nature. It is not. It is one country’s answer to a question that other courts, working from the same problem and often from very similar statutes, have answered differently. Setting the answers side by side is the fastest way to see that the English position is a choice.

Canada: a similar destination, a different road

The Supreme Court of Canada reached its position on consent to harm two years before the House of Lords reached its own, and in a case that had nothing to do with sex.

R v Jobidon was decided on 26 September 1991. The facts were a bar fight outside a hotel near Sudbury, Ontario, in September 1986. The two men agreed to fight, Jobidon knocked Rodney Haggart unconscious with the first punch and kept hitting him, and Haggart died of his injuries. The court held that consent is vitiated as between adults who intentionally apply force causing serious hurt in the course of a fist fight, resting the conclusion on the common law’s policy limits rather than on the Criminal Code’s definition of consent, and preserving exceptions for sports played within the rules and for socially useful conduct.

The application to this subject came four years later. In R v Welch, decided by the Ontario Court of Appeal in 1995, a man convicted of sexual assault causing bodily harm argued that the encounter had been consensual sadomasochism. The complainant said she had consented to nothing at all. The court declined to decide the case on that basis and applied Jobidon instead: the question was not whether she had consented but whether she could, and the answer was that she could not, because the activity was degrading and the resulting harm was reasonably foreseeable.

A later decision put a second limit in place. In R v J.A., decided on 27 May 2011, the Supreme Court held that Canadian criminal law requires a conscious and operating mind throughout sexual activity, and does not recognise consent given in advance to acts performed while the person is unconscious.

Germany: the opposite starting point

German law begins somewhere else. Section 228 of the criminal code provides that a person who inflicts bodily harm with the consent of the injured person acts unlawfully only if the act offends good morals despite the consent. Consent, in other words, is the rule and immorality is the exception, which is the reverse of the English arrangement.

The question of where sadomasochism sits reached the Federal Court of Justice in a case with a death in it. A woman who enjoyed breath restriction during bondage asked her partner, on 18 May 2002, to use a rigid metal pipe rather than the rope they had used before. He raised objections and did as she asked, compressed the vessels of her neck over an intermittent period of some minutes, and she died. The regional court at Kassel convicted him of negligent homicide only, on the view that her consent was effective and the act not immoral.

The Federal Court of Justice gave judgment on 26 May 2004 and set out the principle in the headnote. Consensual sadomasochistic practices resulting in bodily harm do not, as such, offend good morals within the meaning of section 228. The act is immoral, however, where on a prospective and objective view the consenting person is thereby placed in concrete danger of death. The court expressly rejected the older line of authority which had treated such injuries as immoral because they were inflicted for sexual purposes, saying that moral views had changed, and held that what matters is the weight of the harm and the degree of danger rather than the motive. It quashed the conviction as too lenient and sent the case back.

That is the sharpest available contrast with the English position. Both courts had a death or serious injury in front of them. One concluded that this kind of activity is outside the protection of consent because of what it is. The other concluded that it is inside the protection of consent unless it is likely to kill someone.

The United States: fifty answers, mostly the same one

There is no American ruling equivalent to the House of Lords decision, because consent to bodily harm is state law and no federal question has ever been settled. What exists is a line of state cases that mostly refuse the defence.

People v Samuels, decided by a California appellate court in 1967, is generally treated as the first. An ophthalmologist was convicted of aggravated assault after a film processor handed police footage he had made of a man being whipped. The man in the film was never identified and never appeared. The court held that consent is no defence to assault and battery outside ordinary physical contact and contact sports, and added the observation that has been quoted against it ever since: that a person in full possession of his mental faculties does not freely consent to the use upon himself of force likely to produce great bodily injury.

Commonwealth v Appleby, decided by the Supreme Judicial Court of Massachusetts in 1980, held that consent is no defence to sadomasochistic activity even where it is engaged in for sexual gratification, framing the rule as one about assault with a dangerous weapon rather than about the parties. An Iowa appellate decision in 1985, State v Collier, upheld a trial court’s refusal to give the jury any instruction on consent at all.

The line is not perfectly straight. People v Jovanovic, decided in New York in 1999, is usually cited as the case that let a defendant put consent before a jury, and it is a reminder that a country with fifty criminal codes does not have a single position on anything.

Strasbourg twice

The European Court of Human Rights has considered the question two times, and the second judgment is not a repeat of the first.

In Laskey, Jaggard and Brown v United Kingdom, decided on 19 February 1997, the court accepted that sexual life is an intimate aspect of private life, and then held that the state was entitled to regulate the infliction of physical harm through the criminal law. It found the injuries neither trifling nor transient, said that a state may weigh not only the harm actually caused but the potential for harm inherent in the acts, and found no violation of Article 8.

K.A. and A.D. v Belgium, decided on 17 February 2005, involved a serving judge and a physician convicted under the Belgian penal code after sadomasochistic sessions at a club. The court again found no violation, but the reasoning moved. It took a broad view of autonomy in sexual conduct and located the limit in respect for the will of the person being hurt. On these facts the applicants had undertaken to stop when she withdrew consent, the record showed that she used the agreed word and was ignored, and the domestic courts had found that all control of the situation had gone. That is a judgment about a safeword, not about whether consent counts.

What England did not do

The Law Commission of England and Wales looked at the question twice in the decade after the Spanner convictions, publishing a consultation paper on consent and offences against the person in 1994 and a second on consent in the criminal law in 1995. The proposals discussed a threshold defined by the seriousness of the injury rather than by the character of the activity, which would have produced a different outcome in most cases of this kind. No final report ever followed, and the Commission’s own record of the project confirms it. The law of England and Wales on this point has therefore not been reconsidered by anybody with the authority to change it since 1993, and Parliament restated the principle in 2021 rather than revisiting it.

The English case itself is set out in Operation Spanner; the modern statutory offence built on top of it in the extreme pornography law; and the sequence in the full timeline.