Whatever one thinks of the announcement regarding the decision to legislate in respect of the so-called “rough sex defence”, it is interesting to note that this will put into statute the principles established in R v Brown, which have remained controversial for 27 years.

R v Brown concerned an appeal by a group of men who had been convicted of assaults occasioning actual bodily harm and, in some cases, unlawful wounding as a result
of their involvement with each other in consensual sado- masochistic sexual acts.

Their Lordships held by a majority that a person could be convicted for these offences as a result of committing S/M acts which inflicted injuries that were neither transient nor trifling, notwithstanding that the person on whom the injuries were inflicted consented to the acts.

In reaching this conclusion, their Lordships rejected arguments made by the appellants in respect of Article 8 ECHR concerning their right to respect for their private lives and, in doing so, Lord Templeman stated:

Three of the appellants in R v Brown took a case to Strasbourg under the ECHR, and the now-abolished European Commission of Human Rights declared it partly admissible.

In its opinion on the merits of the application, the Commission concluded by a majority of eleven votes to seven that the conviction of the applicants did not amount to a violation of Article 8 ECHR.

The majority stated that the conviction of the applicants was not disproportionate— because the "conduct in question … was, on any view, of an extreme nature"— and the UK government was free to impose measures designed to protect its citizens from physical injury.

The dissenters, by contrast, stated that such a conclusion "inevitably [opens] the way to Governments to intrude into persons' bedrooms to investigate allegations, for example, that spouses engage in sado-masochistic activities".

The European Court of Human Rights rejected the complaints. Judge Pettiti stated that the "protection of private life means the protection of a person’s intimacy and dignity, not the protection of his baseness or the promotion of criminal immoralism".

The case has always been controversial, because of the implicit and explicit homophobia that underlies it. The great legal scholar, Leslie Moran, for example has argued that:

People have argued for 27 years about whether this case established "one rule for one, and one rule for another". In this respect, compare it to R v Wilson (1997) which established that a man was free to brand his wife’s buttocks without facing the sanction of the criminal law.

Translating R v Brown into statute does not, as @BarristerSecret says in an excellent thread, change the law - it simply translates an aspect of the common law into statute (writes it down somewhere else). https://twitter.com/BarristerSecret/status/1278411464701816835?s=20

What it doesn't do, is to resolve all the dilemmas that concerned the House of Lords and the Strasbourg organs for many years regarding what to do when someone does consent to "rough sex" and this results in injuries...