Partial tattooing of the body and amputations in plastic surgery are legal, even though they can leave permanent scars. Why, then, should sadomasochistic acts that harm the body itself be illegal? Is it because sadomasochism creates public fear or disgust and is deemed contrary to the public interest?

The Offences Against the Person Act 1861¹ addresses sadomasochistic behaviour among homosexuals on the grounds of "public interest." Lord Lowry, for instance, stated, “Sadomasochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society.”²

However, the Wolfenden Report from the Commission on Homosexual Offences and Prostitution (1957)³ and the European Convention on Human Rights⁴ argue that consensual sadomasochistic acts should be permissible unless explicitly prohibited by law. Article 8.1 of the Convention affirms that everyone has the right to respect for their private life, aligning with previous discussions on the private nature of sexual behaviour and its limited subjection to criminal law.

The Wolfenden Report supports Mill’s concept of individual autonomy and posits that it infringes on minority rights to define homosexuality as an immoral crime based solely on historical or social context. This perspective extends to the question of whether society can criminalize consensual sexual behaviour, which belongs to the realm of private life. Courts continually grapple with defining the limits of consensual and private acts that can be penalized, attempting to balance individual freedom with social protection.

References

1. Offences Against the Person Act 1861
2. R v Brown [1993] UKHL 19; [1994] 1 AC 212
3. Wolfenden Report: The Commission on Homosexual Crime and Prostitution (1957)
4. European Convention on Human Rights, Articles 7 and 8