Whips and British Barons

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.

Patrick Devlin

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.

Protester outside the courtroom after judgment in Regina v. Brown

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.”

Too Much Hart

Three years into my job as a prosecutor, I still feel shockingly ignorant about the big picture of criminal law.  I don’t mean the nuts and bolts of doing trials, I’ve figured that out, and I don’t mean criminal procedure and evidence, I’m doing fine there.  What are they saying about the purposes of criminal law?  What are they saying about the fundamentals?

To answer these questions, I’ve been reading The Aims of the Criminal Law by professor Henry Hart.  Written as “a revision of a mimeographed note” in 1958, professor Hart formulates the basic purposes of criminal law for the layman.  (HartThe Aims of Criminal Law, 23 Law & Contemp. Probs. 401 (Summer 1958).)  It was “originally prepared for first-year law students to serve as a supplement to other materials.”  Professor Hart describes it as “being elementary” and ” not attempting a comprehensive examination of competing views of the criminal law.”  (Ibid.)

Hart was from Butte Montana, a mining town.  He left to get his undergraduate degree at Harvard in the 1920s, when the town was almost completely owned by the Anaconda Mining Company.  He attended Harvard as an undergraduate and a law student, where he was president of the Harvard Law Review.  In the 1930s he even received two post-law school degrees, an L.L.M. which I’ve heard of and S.J.D which I have not.  That gave him three Harvard law degrees, making him the most Harvard-y person I’ve ever read about.  Hart was a fixture at the law school until his death in 1964, just 6 years after publishing this article.   The text became famous: enough people have read it to publish a book of reactions to it.  The book appears when you look through Amazon’s criminology section.  That’s how I first learned of the article, which I found with google.

Hart looks at the aims of criminal law from the perspective of each of the institutions involved.  I’m slowly reading the article, but I couldn’t help but skip ahead to the section discussion prosecutors, who are lumped in by Hart with the police.  Hart has a startlingly negative view of prosecutors, to say the least.

Hart starts by noting that prosecutors and police “have a lesser role” than others, but nevertheless, we should understand them in order to “better control their activities” and to educate the legislature about “what responsibilities ought to be given them and of the consequences of unwise imposition of responsibility.”  (Ibid a p. 428.)  Specifically, Hart worries about prosecutorial discretion, because it is “far greater than that trusted to any other kind of official.”  This discretion, he says, leads to unequal enforcement of the law, as prosecutors choose who to prosecute and who to pass over.  This transfers “from the legislature to enforcement officials the de facto power of determining that the criminal law in action shall be.”  (Id.)

Prosecutors should be confined to prosecuting truly serious crimes, which he calls “securing compliance with […] the basic obligations of responsible citizenship.”  By prosecuting only serious crimes, the prosecutor’s “discretion will tend to be reduced o the minimum which the necessities of the administration of law admit.”  In other words, the prosecutor should only prosecute crimes that are so serious that there can be no reasonable disagreement over whether they warrant prosecution.  Any prosecutor who takes her job seriously must prosecute these types of crimes.  The absence of choice in this way is the absence of discretion.  Hart suggests that the proper role of discretion is to make judgments “concerning the sufficiency of the evidence to warrant further investigation or formal accusation, what charges to make, what pleas to accept, what penalties to ask for, and the like.”  (Id.)

Having now warmed up to his theme by arguing that prosecutors have usurped the power of the legislature, and that their broad discretion should be reduced to a minimum, Hart brings out the big guns.  “The stupidity and injustice of the thoughtless multiplication of minor crimes receives its most impressive demonstration in police stations and prosecutor’s offices.” (Id.)  Prosecutors, faced with limited resources, cannot prosecute everyone who commits a crime.  This renders the legislature’s enactments futile, Hart complains.  Sporadic enforcement, which is how Hart describes the state of things, “has an inescapable residuum of injustice” and entails “unprincipled discretion.”  (Id. at p. 429.)

It gets worse.  The prosecutor is likely to prosecute those she sees as morally blameworthy.  This despite the fact that Hart thinks the legislature intended that all violators be prosecuted regardless of blameworthiness.  This creates blameworthiness as an additional element of the crime.  Yet this cannot be disproven by the defendant, according to Hart.

I haven’t finished the article, but on first blush, it seems that Hart deeply misunderstands the role of prosecutorial discretion.  He clearly favors a system in which the prosecutor’s discretion is reduced to a minimum.  But in such a system, every violation of the law, no matter how technical, is prosecuted.  We could never afford to follow Hart’s advice, of course, since 95% of our cases are not tried but resolved by plea bargain, and prosecution of every guilty person to the exact letter of the law would require in the area of 20 times more prosecutors.  Even if it were administratively feasible, it would not be desirable.  Prosecutorial discretion is used to give victims and defendants a case-by-case look at the requirements of justice.  If a pimp and a prostitute are arrested, it is prosecutorial discretion that allows us to treat the prostitute as a human trafficking victim rather than a criminal.  When an undocumented immigrant commits a minor crime, prosecutors exercise their discretion to charge crimes that will not lead to deportation.  Diversion programs, which are extremely popular today for everyone from drug addicts to veterans and first-time offenders, are an exercise of prosecutorial discretion.  Perhaps Hart thinks we should prosecute a drug addicted veteran with no record that commits a minor crime.  After all, he says the legislature intended that “all violators should be prosecuted, regardless of moral blame.”  (Id. at p. 429.)  Apparently Hart believes that the legislature is unaware of prosecutorial discretion.  Perhaps he thinks they are unaware of the executive branch altogether.  But there are situations where prosecuting everyone regardless of moral blame is not what our communities want.  It would be unjust.

Luckily, Professor Hart was not given discretion to implement his ideas about the role of prosecutors.