Of Innocence and Autonomy: Children, Sex and Human Rights by Eric Heinze

Author:Eric Heinze [Heinze, Eric]
Language: eng
Format: epub
Tags: Law, General
ISBN: 9781840144840
Google: G5CPAAAAMAAJ
Goodreads: 5849610
Publisher: Ashgate/Dartmouth
Published: 2000-01-15T11:45:01+00:00

The Court found that ‘[t]he act complained of is not illegal in itself and the injuries are only the marks of a cane which would appear in administering ordinary corporal punishment.’11 Despite its disapproval of the appellant’s sexuality, his appeal was allowed on the basis that only if the jury had first been directed to decide whether he had committed actual bodily harm would it have been necessary for them to consider whether the prosecution had negated the role of consent. Had the jury so decided, then his guilt would have been assured, as (in perhaps the earliest judicial venture into policy on the matter) ‘[n]o person can license another to commit a crime.’12

Conversely, and yet similarly, the Scottish Law Commission’s consideration’13 of the corporal punishment of children made no cross-reference to the other side of the coin. It would seem that these official law reform bodies are doing no more than to echo the judges in their ingenuousness. In R v. Donovan, where the appellant was convicted at first instance of indecent assault and common assault after caning his 17-year-old girlfriend for (at least his) sexual enjoyment,14 the Court of Criminal Appeal held, as we have seen, that the reasonable chastisement of children was ‘wholly remote’ from the facts of the case. More recently, in R v. Brown (the ‘spanner’ case, more famously dealing with the ‘heavier’ end of sadomasochism). Lord Mustill mentioned the ‘lawful correction’ exception to assault, but saw its significance to Brown as being no more than another example of an exempt situation which also involves an upper limit of tolerable harm.15 Neither, finally, do the cases on parental nor (more significantly) school beatings (see below) evince any recognition of the sexual dimension, either as an abuse of child beating or otherwise. Incidentally, if it is disingenuous to dissociate the physical correction of children from the softer end of adult sado-masochism, it is downright astonishing to dissociate the latter from sex — as did Lord Templeman in Brown: ‘In my opinion sado-masochism is not concerned with sex.’16 The truth, of course, is that such actions generally lead to sexual release, perhaps involving coitus.

Yet by any appraisal other than that of black-letter law, the two matters are irrevocably connected. Many will see the various links as points on a continuum of disagreeability from the absolutely disagreeable downwards. At the most unpleasant end, there is the potential for child abuse — a particularly well-hidden form of child abuse, at least when beating was allowed in all schools (as will be discussed below) — on the part of adults indulging in what might be called specialist pederasm under the cloak of apparent legitimacy. ‘This is going to hurt me more than it hurts you’ was always an odious piety, but both children and society are entitled to assume that teachers (’sadists found an easy outlet for their perversions in the education system’17) and others are not deriving sexual pleasure from their task, if only to ensure that punishment is not being unjustly administered (if corporal punishment can ever be said to be just).

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