Tuberville v savage 1669. LAW OF TRESPASS TO A PERSON 2022-12-24
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LAW OF TRESPASS TO A PERSON
If Parliament considers that the behaviour revealed here should be made specifically criminal, then the Offences against the Person Act 1861 or, perhaps more appropriately, the Sexual Offences Act 1967 can be amended specifically to define it. Thus except in the case of regulated sports the public interest required that injuries should not be inflicted in public where they might give rise to a breach of the peace. Secondly, there has been no legislation which, being post-convention and ambiguous, falls to be construed so as to conform with the convention rather than to contradict it. Thus we are left with the proposition that it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason and that it is an assault if actual bodily harm is caused except for good reason. If society takes the view that this kind of behaviour, even though sought after and done in private, is either so new or so extensive or so undesirable that it should be brought now for the first time within the criminal law, then it is for the legislature to decide.
I can see no significant reason for refusing consent as a defence for the lesser of these cases of actual bodily harm and wounding. It means no more than that the acts do not constitute an assault within the meaning of these two specific sections of the Offences against the Person Act 1861. So in this case it becomes essential to file a right suit to get a right remedy. It followed that none of the activities in question constituted assault. I do not deny that the privacy of the conduct was an important element in the present case, but I cannot accept that this fact on its own can yield an answer.
There is no pretence of mutual affection. Researchers all over the world have the access to upload their writes up in this site. Even though he was referring to the position at common law, his words seem to me to be of relevance to a consideration of the statute in question. The Wolfenden Report in considering gross indecency between males took the view that it usually took one of three forms, of which none involved the deliberate infliction of injury. So far as I can see, the only counter-argument is that to place a restriction on sado-masochism is an unwarranted interference with the private life and activities of persons who are indulging in a lawful pursuit and are doing no harm to anyone except, possibly, themselves.
The boxers display skill, strength and courage, but nobody pretends that they do good to themselves or others. There were six or seven people between the Claimant and Defendant. Nevertheless, she was acting unlawfully and in that way was acting with hostility. In fact, quite the reverse. Once again it appears to me that as a matter of policy the courts have decided that the criminal law does not concern itself with these activities, provided that they do not go too far.
A proposed general exemption is to be tested by considering the likely general effect. I think it impossible to apply this reasoning to the present case. The conduct of the appellants and of other co-accused was treated by the prosecuting authorities in three ways. In particular, if it were to be held that as a matter of law all infliction of bodily harm above the level of common assault is incapable of being legitimated by consent, except in special circumstances, then we would have to consider whether the public interest required the recognition of private sexual activities as being in a specially exempt category. Moreover it was plain that such fights were brutal—the fighters went out to kill or very gravely injure their opponents and they fought until one of them died or was very gravely injured. Sado-masochism is also concerned with violence. He responded with verbal abuse and turned off the engine before complying with the request.
If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. The argument on both sides has proceeded on the basis of earlier authorities that bodily harm means any hurt or injury that is calculated to or does interfere with the health or comfort of the subject but must be more than transient or trifling, that grievous bodily harm means really serious bodily harm and that wounding involves the breaking of the whole skin. He went on to consider exceptions to the general rule that an act likely or intended to cause bodily harm is an unlawful act. Three of the appellants pleaded guilty to charges under s 20 when the trial judge ruled that the consent of the victim afforded no defence. It is sufficient to say, so far as the instant case is concerned, that we agree with the trial judge that the satisfying of sado-masochistic libido does not come within the category of good reason nor can the injuries be described as merely transient or trifling. It is the latter which is in issue in the present case. The activities took place in private at a number of different locations, including rooms equipped as torture chambers at the homes of three of the appellants.
My conclusion is thus that, as the law stands, 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 Act. First, there were those acts which fell squarely within the legislation governing sexual offences. It has been suggested that if the act done is otherwise unlawful then consent cannot be a defence, but it can be a defence, if the act is otherwise lawful, in respect of injury which is less than really serious injury. In my opinion sado-masochism is not only concerned with sex. If the view which I now propose were to prevail the law would be understood differently. I am satisfied that this argument is unsound.
In contrast to these the American society is so litigant society that people file suits even for minor trespass cases also. The Wolfenden Committee did not make any recommendations about sado-masochism and Parliament did not deal with violence in 1967. Thus, when one comes to map out the spectrum of ordinary consensual physical harm, to which the special situations form exceptions, it is found that the task is almost impossible, since people do not ordinarily consent to the infliction of harm. Malicious silent telephone calls also amount to assault. This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist.
