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Intentional Injury and Consent in the Law of the States Party to the European Convention on Human Rights: A Brief Overview of the Applicable Law in the Light of a Recent Decision of the Commission

NCJ Number
European Journal of Crime, Criminal Law and Criminal Justice Volume: 4 Issue: 1 Dated: (1996) Pages: 71-84
C H Zimmerli
Date Published
14 pages
The European Commission on Human Rights recently declared admissible an application against a decision of the United Kingdom House of Lords regarding convictions for injuries sustained as a result of consensual sado-masochistic activities; this paper provides an overview of the applicable law of the states that are parties to the European Convention on Human Rights.
None of the states that are parties to the Convention specifically addresses or explicitly outlaws injuries caused in the course of sado-masochistic activities. Because of the abstract nature of penal codes, the need for separately addressing the issue does not arise. Legislation in a large number of states gives the consenting person who is injured in the context of sado-masochistic activities a certain freedom in determining the criminality, or at least the sanctioning, of the act. This freedom is granted either in procedural terms, whereby the injured party is entitled to refrain from lodging a complaint and thereby block a prosecution, or in a substantive form, whereby the injured party expresses his/her consent to the injurious act. The laws of some of these states have restricted this freedom by referring to the motive underlying the injurious act, particularly by imposing the concept of "good custom" as a bar to consent. To the extent that this principle has been applied in the past in consensual sado-masochistic activities, there is a clear trend not to consider minor injuries as offending good custom. Thus, various approaches have been developed to remove consensual sado-masochistic infliction of injury from the realm of criminal law. In some of the states with a common law tradition, however, there is evidence that these concepts are not necessarily extended to injuries that occur in a sexual context. 95 notes


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