What’s the difference between whipping someone during sex and injuring them during a boxing match? It turns out that it all comes down to whether you believe morality has a place in the criminal law. I began my strange journey to reading the phrase “voluntary sadomasochistic wounding” with the criminal law textbook that I studied in law school. It spends nine pages discussing the relationship between morals and the criminal law. This is a stark contrast between this light treatment and Henry Hart, who spends many thousands of words in The Aims of Criminal Law. But it ends in a more interesting place, as we shall see.
A Bad Way to a Good Result
The textbook starts with an excerpt from Lawrence v. Texas (2003) 539 U.S. 558, which struck down criminal laws banning sodomy. In doing so, the Court gave a victory to tolerant, thoughtful, and empathetic people everywhere. I agree with the result the Court reached: sodomy should be legal.
Like so many of the Court’s decisions, this good result was accomplished in a bad way. In a dangerous way, if you consider the reasoning that Justice Kennedy used. Citing a previous dissent by Justice Stevens, he said that “the fact that a governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” In other words, the legislature cannot pass laws regulating immoral conduct. This was the holding of Bowers v. Hardwick (1986) 478 U.S. 176. As the Lawrence dissent put it: Bowers validated laws based on moral choices. “The law is constantly based on notions of morality, and […]all laws representing essentially moral choices” should not be struck down. The dissent warned, “[t]his effectively decrees the end of all morals legislation.”
To be clear, Bowers upheld an anti-sodomy law, a bad result that I disagree with. If I were a legislator, I would vote against such a law. But here’s my point. The Court should not cut off the law from morality in order to reach a good result, like the end of anti-sodomy laws. Good results are not the Court’s goal, the correct application of the law is its goal. In his haste to do a good deed, Justice Kennedy struck at the foundation of criminal law: our shared morality. He ruined the foundation of our house in order to fix a broken window. This short-sighted results-oriented jurisprudence has been criticized elsewhere. Many times the criticism comes from people that I strongly disagree with and do not want to be associated with. But the criminal law, and its moral foundation, is critically important to our country. In many ways, it is the foundation upon which we build all of our other rights and freedoms. It has cultural and educational importance as well. Indeed, Professor Hart believed that the entire function of the criminal law was to teach people to be able to live together peacefully. So I have to hold my nose and point out that Justice Kennedy should not have done this. The Court should have waited for the legislature to make this political change.
The Enforcement of Morals
Lawrence v. Texas takes fully half of the space devoted to morality. The rest of the section, title “Notes on the Debate Over the Enforcement of Morals,” begins with utilitarianism. The text quotes John Stuart Mill, who says “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.” (John Stuart Mill, On Liberty, in Utilitarianism, Liberty, and Representative Government, (Everyman’s Library ed., 1950) at p. 95-96.) He is juxtaposed with James Fitzjames Stephen, a man that I’ve never heard of, even though he gets to represent prevailing wisdom and our historical tradition. Stephen’s short rebuttal paragraph is so poorly written that it doesn’t justify a quote.
The text leaves the fundamental debate there, and moves on to territory more comfortable for those who do not believe we should legislate morality: the debate over homosexuality. As I write this, the vast overwhelming majority of thoughtful people, myself included, believe that there is nothing immoral about homosexuality or any of the conduct that comes with it. So those of us who believe that morality is the basis of criminal law are forced to explain why the morality of a tiny, bigoted sliver of America should be allowed to be written into law. The answer: it shouldn’t. The moral views of the majority can and will change over time. When they change, the laws change with them. That way, the law represents our shared morality. Mill and Justice Kennedy don’t agree. Which is fine. But Kennedy goes further, when he wants to use the judicial power to win the argument.
Kennedy’s decision won the argument in real life. But in the pages of my textbook, Patrick Devlin rushes to my defense. Of course, Devlin was a baron in the United Kingdom, so the side of morality has another unsympathetic ally. Anyway, Devlin argues that the separation of crime from morality “would not be good for the moral law and might be disastrous for the criminal [law].” (Patrick Devlin, The Enforcement of Morals (1965).) He uses the example of consent. “[T]he criminal law has never permitted consent of the victim to be used as a defence. [It] is no dfence to a charge of murder [or] any form of assault… Now, if the law existed [solely] for the protection of the individual, there would be no reason why [this should be so]. The reason why a man may not consent to the commission of an offence against himself beforehand or forgive it afterwards is because it is an offence against society…” Devlin then makes an argument made by many others: that the contrary principle would “end a number of specific crimes” which he lists, and most of which have been ended in the 55 years since he wrote. They include “euthanasia, the killing of another at his own request, suicide, attempted suicide and suicide pacts, dueling, abortion, incest between brother and sister” all of which are “acts which can be done in private and without offence to others and need not involve the corruption or exploitation of others…” The text asks whether these changes have led to a weakening of society. In these divided times, it is a provocative question.
The text makes the consent argument stand out in other way. It draws an interesting distinction between the treatment of sadomasochistic whipping and boxing injuries. (See Regina v. Brown (1993) 2 All.E.R. 75 [criminalizing whipping during sex]; compare People v. Samuels (1967) 250 Cal.App.2d 501 [boxing is legal].) It seems like boxing and other sports are an exception to the rule that you cannot consent to injury. But the rule holds firm in bed. In the late 1980s, the “Obscene Publications Squad” of Scotland Yard investigated gay and bisexual men in London. The investigation led to charges against 16 men for various offenses related to private sadomasochistic sex. Five of the men were convicted under the “Offences Against the Person Act” and appealed. The Court held that consent was not a defense to battery. The court explicitly held that it’s ruling was a moral application of the criminal law, saying, “[p]leasure derived from the infliction of pain is an evil thing.”
This post is all about the distinction between harm argument, made by Mill, and the legal moralist argument, made by Devlin. But Bernard Harcourt argues that the harm principle has “collapsed” because there is no way to resolve competing claims of harm. (Bernard E. Harcourt, The Collapse of the Harm Principle, 90 J. Crim. L. & Criminology 109 (1999).) For example, it is widely accepted that prostitution is harmful to the prostitute in many obvious ways. It is also widely accepted that the prostitutes crimes are harmful to the community; they spread disease, undermine the family, and are comorbid with other crimes. So should a prostitute be punished? The harm principle does not provide a satisfying answer.
The author of my textbook has weighed in on the subject, and given his framing of the issue (discussed above), it is no surprise that he is against what he calls “vice” laws. (Sanford H. Kadish, The Crisis of Overcriminalization, 394 The Annals 157 (1967).)
Regina v. Dudley & Stephens (1884) 14 Q.B.D. 273 is a famous case involving sailors adrift in an open boat with no help of rescue. Thirsty, starving, and out of food, two of the four sailors murder a third sailor, drink his blood, and eat his flesh. Four days after the murder they are rescued. During the murder prosecution, they claimed that it was necessary to kill the innocent sailor in order to save their own lives. The court rejected this claim, holding that the excuse of necessity only applies when you kill someone attacking you. The court reasoned, “[t]hough law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such a divorce would follow if the temptation to murder in this case were held by law an absolute defence of it.”