I am unable to agree with the view of the majority view of the majority in this case that the interference in the private life of the applicants was justified. I base my opinion on the following reasons.
The activities for which the applicants were convicted of the offences of assault and wounding were carried out in private between consenting adults.
The majority found that the conviction of the applicants was not disproportionate and falls within the margin of appreciation to be accorded to the Government as regards the imposition of measures to protect its citizens from physical injury and that consequently the interference with the applicants' right to respect for their private life may be considered as "necessary in a democratic society" for the aim of protecting health.
However, in the present case the domestic courts do not refer to any permanent or serious harm or injury being caused in the course of the applicants activities. Nor was it established that a real risk of such harm or injury existed in the circumstances of this case. The risk of activities getting out of hand could be met effectively by the existing provisions of the criminal law because in such a situation either there will be no consent or serious harm will be caused. While mention has been made on AIDS and the risk of infection from bloodletting activities in both domestic and Commission proceedings this risk has not been substantiated. At any rate the risk of infection with the AIDS virus arises in lawful adult heterosexual and homosexual acts and cannot by itself be used as a ground for prohibiting private sexual activities.
I attach particular importance to the fact that in the legal system of the respondent State activities which cause injury or are inherently dangerous to health are generally considered lawful by the mere fact that they are consented to. A typical example is the case of boxing which may cause more severe physical injury than the activities of the Applicants and where violence is glorified with the result that in may incite others to engage in it.
On 15 October 1985 two professional boxers died as a result of a boxing match. It has not been shown that the sado-masochistic acts of the applicants risk to have comparable consequences.
For the margin of appreciation of the State to be acceptable justification it must not be arbitrary or lead to inconsistencies. It appears that the treatment of activities which may cause physical injury by the legal system of the respondent State is not consistent. Apart from the example of boxing one may refer also to cosmetic surgery and tattooing where consent is sufficient to preclude offences being brought.
The government have also relied on the protection of morals as justifying prohibition of the sado-masochistic acts as such and that the activities of the applicants in this case were merely covered by the offences of assault and wounding. This is indicative of fact that the punishment of the activities in question was not associated with moral considerations. Such activities were treated as impermissible or unacceptable basically because of their violent character. I believe that when the protection of morals is invoked in criminal sanctions the relevant moral considerations must have been the raison d'etre of such sanctions and not the ex post facto justification. The offences of assault and wounding are intended to protect physical integrity and not morals.
As the court stated it is not enough for the acts to shock disturb or offend. There must be some additional element which necessitates state interference. This element has not been established in this case.
As regards the risk to the young and vulnerable should be noted that the offences with which the applicants were charged did not involve minors. Furthermore criminal offences already exist under United Kingdom law for the protection of minors. It cannot be assumed and certainly it has not been established that the applicants form of sexual activities poses in its nature any greater risk of involvement of the young and vulnerable than any other form of homosexual or heterosexual relations.
If we accept that the interference in question is legitimate we inevitably open the way to Governments to intrude into persons' bedrooms to investigate allegations, for example, that spouses engage in sado-masochistic activities. Strong and good reasons are necessary for such a course which in my opinion are lacking.
In light of the above I find that the government have not put forward any convincing justification for the prohibition under the criminal law of the applicants' consensual private behaviour which resulted in minor forms of bodily harm. I am therefore of the opinion that the conviction of the applicants for assault and wounding cannot be considered as 'necessary in a democratic society' for the aims of protecting health or morals.
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