According to a recent leader in the Sunday Telegraph, the Department of Health (“DoH”) believes that, '“life-prolonging medical treatment has very serious implications for the functioning of the NHS”', and would lead to '“inefficient and unfairly skewed use of resources”'¹. This candid admission of State policy towards the sick has been forced upon the Government by High Court litigant Leslie Burke. Mr. Burke, in anticipation of his inevitable hospitalisation owing to a degenerative brain disorder, successfully asked the court to insist on his receiving a traditional minimum of medical care; that is, that doctors will not be able to legally dehydrate or starve him to death.*

* 28^th July 2005: The Court of Appeal has since set aside the decision of the High Court.

It may be that the Government had not anticipated this sort of litigation. Parliament has only recently passed the Mental Capacity Act (“MCA”)², which legalises the killing of mentally incapacitated patients, and in exactly the manner that Mr. Burke fears. The Act presents such killing as a legitimate consequence of the Liberal principle that the law should not interfere with a person's autonomous choices³. By seeking, however, to overturn the Burke judgment in the Court of Appeal, the Government has given the lie to this fiction.

The Burke case is damaging to the Government because it directly implicates it in the act of murder. For the converse reason, this is what makes the “choice” fiction so attractive. In their explanatory notes to the MCA, the Department of Constitutional Affairs (“DCA”) and the DoH show indirect awareness of this when they assert, 'Consent is a complete defence to . . . many offences against the person'⁴. Individuals, of course, as well as governments, can misapply or manipulate a victim's choice or consent in order to achieve a criminal end. As feminist legal academic Jane Larson comments in the area of sexual ethics, '[L]iberal thought frequently treats the mere presence of a choice as a sufficient moral justification for otherwise unjust, degrading, or exploitative relationships.'⁵

Drawing on the experience of the (international) common law tradition, this article attempts to demonstrate such unchristian consequences of the misapplication and manipulation of consent. In particular, it examines how, in trying to avoid getting blood on its hands, the Liberal State hopes to persuade you to sign your own life away.

When the general election was called for May 5th 2005, The Guardian reported that 'more than half the government's legislative programme [is] likely to be lost', with as many as, '15 bills . . . expected to be dropped after the prime minister asks the Queen to dissolve parliament'⁶. In spite of this pressure, and even though, as BBC News reported a couple of days later, 'In the rush to get legislation through before the election, the government has lost its ID cards plans and made major concessions on casino liberalisation'^⁷, nothing could stop the Mental Capacity Bill receiving Royal Assent that very same week.

The choice rhetoric at the heart of the Mental Capacity Act is best exposed by the above-mentioned explanatory notes prepared by the DCA and DoH. Breathtaking in its candour, paragraph 14 is worth quoting in full on this:

“A donee of [a lasting power of attorney – “LPA”] can be given power to refuse to give consent to life-sustaining treatment on behalf of the donor [when the latter becomes mentally incapacitated] (see section 11(7) and (8)). The donor's [European Convention on Human Rights] Article 2 [right to life] and Article 3 [freedom from torture or inhuman or degrading treatment] rights could be engaged. A person can also make an advance decision to refuse treatment [i.e., in the event of his becoming mentally incapacitated], including life-sustaining treatment. Section 25(5) provides that an advance decision will not apply to any treatment necessary to sustain life unless the advance decision is in writing and is signed and the signature is witnessed. Further, there must be a statement that the decision stands even if life is at risk (and this statement must also be in writing and be signed and the signature must be witnessed). Sections 6(7) and 26(5) provide that action can be taken to preserve life or prevent serious deterioration [in the person's condition] while the court resolves any dispute or difficulty. These provisions are designed to protect a person's Article 2 and 3 rights, while also discharging the obligation to respect the Article 8 [private life] rights of those who choose to give powers to a donee under an LPA or to make an advance decision'⁸ (emphasis added).

It is worth noting that this attempt to justify torture and murder by consent fails to mention that life-sustaining treatment may also be withdrawn from a patient, without his “advance consent”, by “an NHS body” (at least potentially – see s.37⁹), or by court order (s.16(1)(a) and (2)(a), and s.17(1)(d)¹⁰). The legislation does not specify whether the judges are to wear the customary black hoods when pronouncing sentence in such cases. It should also be noted that, since 1993, feeding by tube has been defined as “medical treatment”¹¹.

In his work exploring the concept of criminal responsibility, Michigan University assistant legal professor, Leo Katz, observes that, 'Generally, courts are disinclined to say that someone who encouraged a suicide caused it.' He illustrates this observation with the South African case of R. v. Nbakwa, in which the defendant had accused his mother of having killed his daughter. 'The woman did not deny it,' continues Katz, and 'promised to commit suicide. Eight days later she had still not done it. The man then came into her hut with a stout stick and a thin rope. He tied the rope to a rafter, made a noose at the other end and told the woman, “Get up and hang yourself.” The woman asked for something to stand on. The man put a block of wood under the rope. He then left . . . and watched his mother get up on the block, put the noose around her neck, and kick the block away.' The court held that there was a novus actus interveniens between the actions of the accused and the death of the deceased which broke the chain of causation. '“The direct cause of the death of the deceased”', ruled the court, '“was the act of the . . . woman in getting up onto the block of wood, putting her head in the noose and then kicking away the block of wood. The direct cause of death was not the action of the accused”'¹².

S.62 of the MCA provides that 'For the avoidance of doubt, . . . nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961'. The last piece of legislation states, 'A person who aids, abets, counsels or procures the suicide of another . . . shall be [criminally] liable' (Suicide Act 1961, s.2(1)). Given the clear wording of the MCA in relation to the withdrawal of life-sustaining treatment, the Government appears to presume that culpability for murder depends on commission, but not omission, of an act. 'Even then, however,' argues Leo Katz, 'the common law has often recognized liability. . . . “Anyone who, assuming to take care of another, refuses the necessary subsistence, or by any other severity though not of a nature to produce immediate death, as by putting the party in such a situation as may possibly be dangerous to life or health, if death actually and clearly ensues in consequence of it, it is murder”'¹³.

What is puzzling is that the DCA/DoH explanatory notes to the MCA understand the concept of liability for a criminal omission. Paragraph 40 observes:

'Consent is not a defence to a claim in . . . negligence. There are some offences which depend on a finding of negligence . . . most notably, manslaughter where the element of unlawful killing may be made out by grossly negligent behaviour, whether an act or an omission to act in breach of duty'¹⁴ (emphasis added).

Nevertheless, given the explicit licence to kill granted by the MCA, it is suggested that such reasoning as that exhibited in Nbakwa underlies the Government's presentation of itself as being morally detached from the area of what Liberalism commonly and nebulously describes as “private morality”. Of the false dichotomy between matters public and private, Jane Larson observes, writing from a feminist's perspective, that the “public-private split” is a mechanism for maintaining the subordination of an oppressed social class¹⁵. (In her case she refers specifically to a perceived exploitation of women in their private relations with men. The parallel with regard to unborn babies and the “private morality” of abortion is unmistakable.) Larson also notes that, in any case where relations between persons are involved, 'privacy is an implicitly oxymoronic notion', since couples, for example, 'like to be “alone” - together'¹⁶. Extending this observation to the wider family, we can share Larson's conclusion that relations between couples, and among family members, as much as those between strangers, far from being of no concern to the State, all involve 'problems of justice'.

This much has been recognised in modern British attitudes to the prosecution of domestic violence. The Metropolitan Police, in their recent poster campaign on this subject, adopted the slogan, directed at abusers: 'Your partner's silence no longer protects you'. This appears to be a direct rebuttal of the traditional legal maxim, “silence gives consent”. Similarly, the Crown Prosecution Service has changed its policy on the supposed public-private dichotomy: 'In the past, if an offence of violence occurred in a domestic context, it was sometimes considered to be less serious than a similar offence in a non-domestic context – in effect, the domestic context was viewed almost as a mitigating factor. Today, far from being considered a mitigating factor, violence in the domestic context is seen by society as an aggravating factor¹⁷ because it amounts to a fundamental breach of trust – everyone is entitled to feel safe in his or her personal relationships.'

Both the main British political parties take the Liberal view that matters they choose to classify as “private morality” should be left to the individual consciences of MPs. As long as “burdens on the welfare state” kill themselves, the Government, following the reasoning in Nbakwa, sees itself as in the clear. By contrast, in the Burke case, the Department of Health is seeking judicial permission directly to kill Leslie Burke.

In spite of this fact, many British people may be inclined to take the Government's side in this case. In his recent study of the subject, writer James Bartholomew speculates as to why the British public is reluctant to abandon the welfare state. The following is one argument he suggests: 'Do [people] feel, perhaps, that the welfare state is their longstop? If they lose everything, the welfare state will help them somehow. . . . Of course, . . . it is not actually true that the welfare state helps everyone in trouble. . . . Perhaps people are susceptible to the existence of this theoretical safety net, and prefer not to think about its actual value and reliability'¹⁸. Elsewhere in his book, Bartholomew calculates that, 'A minimum of 15,140 unnecessary deaths take place each year because we have the NHS instead of an average medical system'¹⁹. In the flesh-and-blood case of Mr. Burke, however, our traditionally blind faith in state providence collapses. Yet, rather than deal with contrary evidence, which leads Bartholomew to assert that, 'The structure that pre-dated the NHS was better'²⁰, Liberal Britain is prepared to kill a man in order to sustain a pretence.

How did we come to this state of affairs? And why are we inclined to single out the Burkes as first to be thrown from the lifeboat, for their “unfairly skewed use of resources”? The honest answer to this is that the established ideology of Great Britain (in place of religion) – Liberalism – is based on moral cowardice, and incapacitated patients, like unborn children, are too weak to fight back. Until the Burke case, however, Liberal culture had been able to misapply and manipulate consent in order to conceal the truth.

In his study of the law of consent, Denver University assistant legal professor, Keith M. Harrison, states, 'Generally the consent of an individual victim of a crime will not operate as a defense to a criminal prosecution unless the lack of the individual victim's willing, capable, and informed consent is an element of the charged offense, such as in the crimes of rape or larceny'²¹. In the English case of Rex v. Donovan, which concerned a consensual sexual beating, the court noted, 'If an act is unlawful in the sense of being a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can license another to commit a crime. . . . As a general rule, although it is a rule to which there are well established exceptions, it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence.'²²

Harrison argues that the relevance of consent in any legal system is defined by a socially dominant group²³, and concludes that, 'The consent defence may be used when “we” say it may and it may not be used when “we” say it may not'²⁴. This article attempts to show that, on a Christian analysis, predicated on the principle of love of neighbour, the law of consent can be made – though not necessarily in its current form shown – to be consistent. Since the passing of the Abortion and Mental Capacity Acts, Harrison's analysis has certainly been true for Britain. Under the effects of Liberalism, the problem lies in the false dichotomy already mentioned, between “public and private morality”. For example, killing an unborn child is said to be a “private choice”, whereas, it is argued, smacking or corporally punishing a child is a matter of “public concern”²⁵.

The historically shifting nature of the public-private dichotomy is illustrated by Jane Larson: 'Political definitions of what should and should not be private shift over time with changing views about the proper balance between social justice and individual liberty. . . . Consider that only since the 1960s has racial and sexual bigotry on the job become a matter for public concern, and only since the 1980s has extortion of sex as a condition of employment for women workers been treated as anything other than an employer's unfortunate but nevertheless “private” sexual preference. . . . Privacy as a legal and political value cannot be discussed meaningfully in absolute terms'²⁶.

This begs the question, why is freedom from coercion such as sexual harassment something to be valued, or, more bluntly, paid attention to? Why should a rapist or a thief be condemned for acting without the victim's consent? When the law intervenes here, why is it not decried as “paternalistic”, artificially interfering with the laudable process of natural selection? Why is it not up to each man to fight for himself, “like a man”? Failure in such a contest could be celebrated by the culture as a triumph of honour or divine justice, as per the code of duelling or trial by combat.

In describing a court's refusal to accept a defence of masochistic consent, Vermont Law School professor, Cheryl Hanna, observes, 'Had the court come to the opposite result, defendants in every case of intimate abuse . . . could argue that they too had an explicit contract with their partner that included physical punishment. The progress that has been made in prosecuting domestic violence cases and holding batterers criminally liable would have been almost impossible under such circumstances. There is a common stereotype that women who stay in abusive relationships not only deserve it, but like it. Sadism would thus become a natural state for men, while masochism would become a natural state for women—arguably a relationship with which the law should not interfere.' ²⁷

Such unchristian arguments show how dangerous it is for the law even to say, “OK, we shall intervene – unless it can be shown that you asked for it.” This is to substitute the indignant position, “Why shouldn't they?”, with the indifferent one, “Hell mend them”. The result – failure to practise charity – remains the same.

In answer to the previously begged question, Christian morality regards free choice to be misapplied as a rule when it violates the overriding precept of charity – that one must love one's neighbour for God's sake. The source of this virtue is not a mythical “social contract”, rather it is the fact that man is created by God and redeemed by Our Lord's suffering on Calvary. If our neighbour, to despise whom each of us could probably furnish numberless reasons, such as ugliness of body or soul, tedious and costly ill-health, interference with our “reproductive rights”, undeserved wealth, and so on and on – if that neighbour is worth so much to God, Who also made us perfect specimens, then he should be worth that much to us too. The paradigm of Christian charity is laid out in the parable of the Good Samaritan, who rescues the battered man left for dead, and does his best to restore him to full health. Bodily death is an inevitable part of our given constitution, but to bring it about ourselves cannot form part of the practice of charity, since, as far as we can experience – at the empirical level, if you will – to intentionally kill our neighbour is to annihilate him.

Adherence to the precept of charity is a value judgment – a choice. This is not to elevate choice to the level of a superior moral principle. Moral principles can themselves only be derived from initial, axiomatic value judgments. If Liberal autonomy is to be taken as axiomatic, then the morality of any form of coercion cannot be logically admitted, whether it be the enforced payment of taxes or the proscription of any criminal activity, including rape. From this it can be seen that, without love of the person, respect for his free-will is meaningless.

Why is this? Some writers try to ground the law of consent in a theory of the primacy of the State²⁸. Though this may be arguable from a legal historical point of view, the principle of charity merely requires each of us to protect our neighbour's good. Preservation of free-will is indeed a good, but it is to commit the logical fallacy of misapplication if one is to place free-will above the very personal integrity inherent in preservation of the body and soul.

In his student textbook on logic, University of Texas professor of philosophy, Daniel Bonevac, quotes a classic example of misapplication from Plato's Republic: '“[I]f a friend has deposited weapons with you when he was sane, and he asks for them when he is out of his mind, you should not return them. The man who returns them is not doing right”'²⁹. To apply the rule, “Keep your promises”, Bonevac continues, 'would be, in this case, to misapply it. Other things are not equal. Your obligation to prevent harm to your friend and others outweighs your obligation to . . . keep your promise'³⁰.

How were we seduced from this frame of mind to place consent above protection from objective harm? As mentioned at the beginning of this article, as well as governments, individuals can abuse the concept of free choice or consent for their own purposes. The law of contract understands this, and vitiates any agreement which either party had been induced into making through duress or fraud. Modern consumer law goes even further than that, providing for objective standards such as “satisfactory quality” of goods sold, where the traditional rule of the market had been “let the buyer beware”.

Far from securing objective standards of medical care, the MCA permits hospitals to withdraw life-sustaining treatment from patients who have signed up in advance to such action, 'even though [they have used] layman's terms' (s.24(2)). Evil though this anomaly between consumer and medical law is, there is a risk to Liberal British culture if it is exposed and opposed. This is because the misapplication and manipulation of consent are essential to the imposition on society of sexual Liberalism. Larson notes that, '[A] man may do things to get a woman's agreement to sex that would be illegal were he to take her money in the same way. . . . [T]he principle of caveat emptor remains most vigorously alive in the sexual marketplace.'³¹ The concept of “consenting adults” has been at the forefront of the rhetorical triumph of sexual Liberalism. Any cultural resistance to the elevation of consent over objective harm could be perceived as a threat to those who, for whatever reason, value the establishment's endorsement of fornication.

An illustration of this endorsement can be seen in the case of Gillick v. West Norfolk & Wisbech Area Health Authority and the DHSS³², in which the House of Lords ruled that under-16s can receive confidential medical advice on contraception (necessarily to facilitate fornication, since under-16s are unable to marry). According to Lord Scarman, '[W]omen have obtained by the availability of the pill a choice of life-style with a degree of independence and of opportunity undreamed of until this generation and greater, I would add, than any law of equal opportunity could by itself effect.'³³

Scarman's effusive enthusiasm for sexual Liberalism entailed his rejection of the serious responsibility of the court in this case. This responsibility was highlighted by his dissenting colleague Lord Brandon:

'Parliament has for the past century regarded, and still regards today, sexual intercourse between a man and a girl under 16 as a serious criminal offence . . . . On [that] footing . . . it follows necessarily that for any person to . . . facilitate the commission of such an act may itself be a criminal offence, and must, in any event, be contrary to public policy'³⁴.

Scarman goes on to assert: '[M]any girls are fully able to make sensible decisions about many matters before they reach the age of 16'³⁵ (emphasis added). This implicit validation of youthful consent to fornication and law-breaking bears contrasting with Lord Bridge's concurring judgment, which includes the observation that, 'Foremost among [the untoward consequences of intercourse] must surely be . . . the birth of a child to an immature and irresponsible mother'³⁶ (emphasis added).

While a majority of the Lords defied basic logic with their concept of “sensible immaturity”, some commentators have identified the overriding concern, applicable to both minors and adults: 'Thus feminists are at odds with liberals over the ideological role of consent . . . . [F]eminists who value consent need not be trapped into agreeing that women in exploitative, degrading, or dependent (but formally consensual) . . . relationships are better off.'³⁷

The objective harm caused by sexual Liberalism was attacked by Pope Paul VI in his encyclical Humanae Vitae, in which he writes of the:
'inseparable connection . . . between the two meanings of the conjugal act: the unitive meaning and the procreative meaning. Indeed, by its intimate structure, the conjugal act, while most closely uniting husband and wife, capacitates them for the generation of new lives, according to laws inscribed in the very being of man and of woman. By safeguarding both these essential aspects, the unitive and the procreative, the conjugal act preserves in its fullness the sense of true mutual love and its ordination towards man's most high calling to parenthood'³⁸.

Of course the unitive and procreative aspects of sexual integrity may be technically broken, just as nutrition may be analysed into the processes of swallowing and digestion. The obligation to feed one's children, however, cannot be satisfied by giving them stones instead of bread. This analogy may be challenged on the basis that nutrition preserves the bodily integrity of the individual, whereas procreation involves the generation of a separate individual. But the same moral principle that protects the integrity of one person serves also to protect that of every other. Furthermore, if love of neighbour is not to be replaced by abuse of neighbour, respect for sexual integrity must include respect for the bodily changes and the love of others – specifically of one's spouse and offspring – that are brought into being by sexual intercourse. In this light it can be seen that fornication attacks a person's growth in loving and being loved.

Fornication violates the principle of charity, in that neighbour says to neighbour, 'I will take only the unitive aspect of your sexual integrity; I will break up [literally, “corrupt”] that integrity, which is as much a part of your objective constitution as your body and your soul – and then I want you to go away.' The simultaneous appropriation of the other person's body and sexuality on the one hand, and the dismissal of the whole of the person on the other, may be manifested in candid language as well as in the use of various prophylactic or abortifacient impediments to full union. This sin against neighbour can be committed even within a superficially enduring “relationship”, only surfacing, if ever, at a crisis point, such as the failure of contraception and the refusal by the woman to abort the couple's child, or, alternatively, the choice by the woman to kill the child, regardless of the father's wishes³⁹.

The duty of Christian charity here can be summed up (from the man's point of view) in the advice, “Either love her or leave her alone.” The following real life example may help to illustrate the destructive consequences of failure to abide by this rule:

'One night, after [Kai-hui] was gone, Mao was unable to sleep, and wrote a poem. . . . Helped by this poem, Mao managed to persuade [her] to stay overnight. . . . For Kai-hui, staying the night meant giving the whole of herself. “My willpower had long given way . . . and I had allowed myself to live in romance. . . . What meaning would my life have if I didn't live for my mother and for him? So I lived in a life of love.” . . . Mao's feelings were no match for Kai-hui's, and he continued to see other girlfriends . . .'⁴⁰

The reader may (or may not) feel critical of Kai-hui's immaturity, but in what way does this justify Mao's taking advantage of her? Though Kai-hui became his (second) wife, Mao continued in his infidelity, so that she was later to write:

'I learnt many more things, and gradually I came to understand him. Not just him, but human nature in all people. Anyone who has no physical handicap must have two attributes. One is sex drive, and the other is the emotional need for love. My attitude was to let him be, and let it be”'.⁴¹

Does this kind of rationalisation of one's betrayal represent a free will? Are choices made in such a frame of mind to be coldly accepted – and even enforced? Liberalism's need to “sanctify” permissiveness – that is, society's abandonment of those who consent to their own abuse – demands an affirmative answer both to this question, and to the more drastic one of the acceptance and enforcement of a desire to die.

That assault against a person's sexual integrity is not “merely transient and trifling”⁴² can be demonstrated by considering what is wrong with paedophilia. In Gillick, which concerned the giving of contraceptive advice to under-16s, Lord Fraser noted, 'After all, a minor under the age of 16 can, within certain limits, enter into a contract. He or she can also sue and be sued, and can give evidence on oath. Moreover, a girl under 16 can give sufficiently effective consent to sexual intercourse to lead to the legal result that the man involved does not commit the crime of rape'⁴³. If this minor premiss is combined with the Liberal major premiss that opposition to fornication is nothing more than “moral outrage”⁴⁴, it leads to a Liberal conclusion that paedophilia, being “harmless”, ought not to be proscribed⁴⁵. When, however, we understand the nature of sexual integrity as expounded by Paul VI, we can explain the profound importance we attach to it, such that we ought to protect children from sexual exploitation.

In the context of the social perception of rape, Jane Larson notes: '[T]he woman who responds to a show of physical force by sexually “going along” may find that no one later believes her claim of rape'⁴⁶. Extending her comments to include seduction, she further observes that, even though, as was noted above, duress or fraud has the effect of vitiating consent under the law of contract, where sex has been procured through force or fraud, 'the focus of judgment is on the remaining shreds of [the woman's] continued formal capacity to choose, rather than the extremity of the constraints under which she acts – on the victim's conduct, rather than that of the wrongdoer'⁴⁷.

The manipulation of consent, like its misapplication, is something that can be carried out at a social and governmental level as well as between individuals. Leo Katz notes that, 'Threats are not the only way to pressure someone into doing something he doesn't want to do. Other techniques can be just as effective. . . . In skillful hands, these amount to nothing short of brainwashing. The principal three techniques involve the use of authority, peer pressure, and seduction.'⁴⁸ As Larson explains, 'The wrongdoer arranges the victim's world so that the act he wants her to perform appears as her best choice'⁴⁹. The effects of Katz's techniques are illustrated by feminist writer Kathryn Abrams, who suggests, for example, 'that a woman's desire for the approval, respect, and esteem of her community may cause her to value highly the social costs of male disapproval or rejection exacted from women for sexually self-regarding behaviour.'⁵⁰

The MCA makes explicit reference to fraud or undue pressure with regard to the granting of lasting powers of attorney (but not with regard to advance decisions to refuse treatment)⁵¹. Again, however, this reference to fraud has to be understood subject to the fraudulent Liberal rhetoric of personal autonomy at the heart of the Act itself. In this latter context, it is helpful to paraphrase and extend psychiatrist Charles Socarides' observations on the advocacy of sodomy as follows: '[Liberalism] has established almost complete domain not only over the individual communication with the outside world – that is, all one sees and hears, reads and writes, experiences and expresses on the subject of [sexual and, more generally, bodily autonomy] (a censorship of which you all are aware) – but it has also penetrated one's inner life, that is, one's communications with oneself. . . . This type of communication has the assumption of an air of omniscience, a conviction that reality is the exclusive possession of the . . . [Liberal] movement . . , for these . . . social planners consider it their duty to create an environment containing no more and no less than the “truth” as they see it. The average individual is thus deprived, as Lifton puts it, “of the combination of external information and inner reflection” which anyone requires to test the realities of the environment and to maintain a measure of identity separate from it.'⁵²

In Britain, the “social planners” to whom Socarides refers would include, as well as the DCA and the DoH, the majority of the House of Lords in the Gillick case.

In a well publicised case concerning sado-masochism, R. v. Brown, Lord Templeton states, 'Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing.'⁵³ For this statement he has been accused of invoking “the moral outrage argument”⁵⁴: 'in the absence of proof,', asserts Cheryl Hanna, 'arguments about social harm are merely rhetorical'⁵⁵. Later on in the same article, she states: 'Not even liberal feminists would suggest that it would be acceptable to inflict death or to maim someone for some sort of sexual gratification.'⁵⁶ Is this not a “moral outrage argument”? In his dissenting opinion in R. v. Brown, Lord Mustill attempts to distinguish consensual assault causing actual bodily harm that is, 'inflicted for the gratification of sexual desire, and not in a spirit of animosity or rage; and . . . not . . . for profit'⁵⁷. Apparently he believes that wrath and avarice are bad motives, but not lust. Why, since all three involve using – and damaging – another person as a means to an end?

Hanna herself concedes that, 'Many arguments about maintaining slavery were premised on the assumption that slaves preferred it that way.'⁵⁸ She further asserts that, 'Sexual slavery violates human rights.'⁵⁹ Where is the empirical proof of this? Both Hanna and Lord Mustill are clearly making a value judgment about the limits of acceptable treatment of one's neighbour from which they are artificially trying to exempt sexual abuse. Other writers, Hanna notes, are not so reticent about following through on the logic of misapplied consent: '[S]ome have argued that the question of [sado-masochism] is intricately related to issues such as abortion and access to birth control, fundamentally being a question of sexual autonomy, not sexual violence.'⁶⁰

In R. v. Brown, Lord Templeton witnessed first-hand the broadening of the concept of “sexual autonomy” to that of “bodily autonomy”:

'Counsel for the appellants argued that consent should provide a defence to charges [of assault occasioning actual or grievous bodily harm] because . . . every person has a right to deal with his body as he pleases. I do not consider that this slogan provides a sufficient guide to the policy decision which must now be made. . . . [T]he appellants in this case did not mutilate their own bodies. They inflicted bodily harm on willing victims. Suicide is no longer an offence but a person who assists another to commit suicide is guilty of murder or manslaughter.'

From what we have observed, it is possible to trace all the steps from the social acceptance of consensual fornication and abortion of unborn children, to the acceptance of consensual sexual violence, and “finally” to the acceptance of consensual murder. As had already been made manifest by the passing of the Abortion Act 1967, Liberal Britain is prepared to kill for the sake of lust.⁶¹

An exception to the general legal prohibition of consent to assault is made in the case of medical treatment and surgical operations, which 'injure the part for the sake of the whole'⁶² (emphasis added). Professor Patrick Fitzgerald tries to extend the concept of charitable medical treatment to include killing 'which shortens the quantity of life for the sake of avoiding total deterioration in its quality'⁶³. This is an unopposable suggestion, not because it is founded in principle, but because the wording is tautologous. Short of death itself, “total deterioration in quality of life” means “deterioration to the point at which it would be merciful to kill the person”. The proposition is therefore that we ought, in all mercy, to kill a person, when his quality of life is such that the merciful thing to do would be to kill him. This cannot be a justification for a (partial) repeal of the murder law. At most it relates to a potential appeal to pity – a plea in mitigation of sentence – on behalf of a person accused of murder, the merits of which ought to be assessed by the court on the basis of the proved facts of a particular case⁶⁴.

As mentioned, the Government has attempted to circumvent this problem in its legislation by fallaciously appealing to the consent of the victim. To preclude outright, however, the investigation and prosecution of an act of intentional killing, would be to effectively repeal the murder law – the most obvious violation of charity possible (by the State). This can be seen from the limited withdrawal of the protection of the law from unborn children contained in the Abortion Act 1967, which has been socially exploited to such an extent that, as a matter of fact, the unborn now have no protection from abortion at all. An illustration of this is provided by the recent decision of the Crown Prosecution Service not to prosecute over the late abortion of a baby with a cleft palate⁶⁵.

Last year there occurred the case of an adolescent who, according to BBC's Web site, persuaded another boy to murder him⁶⁶. Judge David Maddison is reported as saying that the case was 'extraordinary', and that, 'Skilled writers of fiction would struggle to conjure up a plot such as that which arises here.' Yet how does the rhetoric of consent distinguish this particular case of assisted suicide from that of a man who escaped sentence after admitting that he slit his wife's wrists as part of a suicide pact (that he survived) because she had cancer and refused surgery?⁶⁷ The most obvious distinction is one not based on the legal acceptance of personal autonomy, but rather on the perceived worthlessness of the life that was taken⁶⁸.

Current exceptions to the general law of consent to assault – are they compatible with charity?

'The law allows healthy people to undergo the sometimes untested methods of cosmetic surgery, such as the implantation of silicone bags in the human body, and increase their earning capacity by making themselves conform to dominant notions of personal appearance. Yet beggars will not be allowed to have themselves mutilated in the hopes of increasing their earning capacity.'⁶⁹ Here Harrison calls into question the “victim's” morals rather than the “assailant's” culpability, with which the law of consent is primarily concerned. As well as constituting an assault, the mutilation of a beggar, as described, would amount to conspiracy to commit fraud. With regard to cosmetic surgery, as stated already, the purpose of this article is not to discover a principle which is capable of supporting the current state of the common law of consent to assault, but rather to explore the consistent application of the Christian precept of charity. Questions therefore to be asked in this area include: Is the cosmetic surgeon assisting a person to recover from a congenital or acquired disfigurement that could be analogous to injuring a part for the sake of the whole, or is he putting patients through an unnecessary risk? What is to be the standard, or at least the limit, of beauty? In other words, when does “beautifying” become assaulting?

It is suggested that standards of physical beauty are culturally determined, but that a Christian limit would be that the surgery should not interfere with the bodily integrity of the patient. Any treatment which would distort a person beyond the recognised human form is harmful because the human form is good, the body together with the soul being what makes up our neighbour, the object of our charity. The following admission by a surgeon that he amputated a person's healthy limb is not compatible with this analysis, yet, once again, the pernicious influence of choice rhetoric is clearly discernible in his reasoning: 'It's quite a difficult change of view on my point really, to remove a healthy limb is an anathema to a surgeon, but I've become convinced over the years that there is a small group of patients who genuinely feel that their body is incomplete with their normal complement of 4 limbs.'⁷⁰

What about the morality of a surgeon who accepts a kidney for sale? Whereas voluntary donation for an emergency kidney transplant is an act of sacrificing part of oneself for the sake of the whole of another, the sale or speculative donation of organs (unlike the donation of replaceable blood) puts the donor's life at immediate risk for the sake of making a commodity out of his potential for survival. For that reason it is incompatible with charity.*

* 17^th October 2005: A recent article in The Guardian concerning the “discovery of a technique to extract [embryonic] stem cells without impairing the embryos”, ignores even the absence of consent as a barrier to experimenting on people. It claims, amongst other things, that “Religious . . . groups claim embryonic stem cell research is unethical because the cells are produced by creating embryos which are later destroyed” (emphasis added). This inaccurate statement completely ignores the implications of this and related practices for love of neighbour, as they are eloquently explained in the Catechism of the Catholic Church: “The act which brings the child into existence is no longer [a sexual] act by which two persons give themselves to one another, but one that . . . entrusts the life and identity of the embryo into the power of doctors and biologists and establishes the domination of technology⁷¹ over the origin and destiny of the human person⁷²” (para. 2377)⁷³.

Harrison continues: '[E]xceptions are made at the lower end of assaultive conduct in the nature of unwanted and unconsented-to touchings that occur in the course of everyday life, such as the minor jostles that are received while walking down a busy street, taking an elevator, or riding in coach'⁷⁴. This is compatible with charity, which exhorts us to bear wrongs done to onself with patience. As mentioned above, Harrison criticises the law of consent where it is used by one social group in order to dominate another. 'It is . . . likely that the Judeo-Christian culture,' he goes on, 'which recognises circumcision as an accepted and harmless religious practice, has little trouble viewing other types of bodily mutilations done in connection with [non-Judeo-Christian] worship as ritual abuse.'^⁷⁵ The key word here is “harmless”, if, indeed, it is accurate^⁷⁶. It is not likely, for example, that the Church, out of respect for Judaism, would tolerate the re-enactment of the sacrifice of Abraham. As for Our Lord's extolling of those who make themselves “eunuchs” for the sake of the kingdom of heaven (Matthew 19:12), Christian advice here is to understand that Scripture may have a figurative as well as a literal meaning.

Very often, Harrison's examples of group “domination” illustrate not the repression of “positive” Liberal choice, but rather the violation of love of neighbour. For example, he notes that, 'An African-American woman's refusal to consent to sexual intercourse was legally irrelevant at the time when African-Americans were chattels under the law'⁷⁷. As already discussed, Liberalism would assert that black women could consent to living in slavery⁷⁸. What this example in fact draws attention to is the objective immorality of enslavement. This predicament of Liberalism has also been noted by Jane Larson: 'For example, a woman might consent to become a sexual slave, yet choice rhetoric affords no basis for questioning her controversial choice'⁷⁹.

The question of sport – is a general theory of consent to violence viable?

In his dissenting judgment in R v. Brown, Lord Mustill, in an effort to refute the concept of a general theory of consent and violence, appears to support Harrison's thesis that the law of consent is subject to the preferences of the dominant social group. He refers in particular to, 'the failure of any attempt to deduce why professional boxing appears to be immune from prosecution.' '[E]ach boxer', he continues, 'tries to hurt the opponent more than he is hurt himself, and aims to end the contest prematurely by inflicting a brain injury serious enough to make the opponent unconscious, or temporarily by impairing his central nervous system through a blow to the midriff, or cutting his skin to a degree which would ordinarily be well within the scope of [criminal assault]. The boxers display skill, strength and courage, but nobody pretends that they do good to themselves or others. The onlookers derive entertainment, but none of the physical and moral benefits which have been seen as the fruits of engagement in manly sports. . . . It is in my judgment best to regard this as another special situation which for the time being stands outside the ordinary law of violence because society chooses to tolerate it.'⁸⁰ (On this basis, Lord Mustill then attempts to justify exceptions to the general law of consent – among which he would like to include sado-masochism – in terms of the fallacious “public-private split” already discussed, describing sado-masochism as being among “questions of private morality”⁸¹.)

Further fuel to the anti-boxing argument is given by the following quote from former world heavyweight champion, Mike Tyson: '“When you see guys like Trump, Kennedy, and Rockefeller – bluebloods – when they come to a fight, regardless of what they may represent, they come to see someone get hurt, and my objective is to inflict as much punishment [on my opponent] as possible”'.⁸² Cheryl Hanna, however, shows that Lord Mustill may be behind the times as regards the attitude to sport in the common law tradition: 'Prosecutors are increasingly imposing a standard of civilized masculinity on both high school and professional players. Take, for example, Marty McSorley, the Boston Bruins hockey player who hit . . . [an opponent] . . . in the head with a stick during a National Hockey League game, knocking him unconscious. Hockey is a dangerous sport and thus players implicitly consent to a certain level of violence, but McSorley crossed that line. A Canadian criminal court found McSorley guilty of assault with a deadly weapon (his hockey stick) and sentenced him to eighteen months probation. Although McSorley is one of only eleven NHL players to be prosecuted in the league’s history, the conviction has sparked concerns that even more sports cases will end up in court as prosecutors intervene in serious cases that would otherwise be left for the league to handle. The McSorley case may indeed signal a growing state interest in confining violence in sport which is outside the rules of the game, or motivated by unrestrained passion or personal animus.'⁸³

While the Tyson quote is morally self-incriminating, it does not necessarily reflect the spirit of boxing per se, which would have to be inferred from the nature of the activity itself. Compare the following, admitted, on-pitch action of the captain of Manchester United football team, described in James Bartholomew's The Welfare State We're In: 'He [the captain] had a grudge against one of the [opposing] players . . . [and confesses in his autobiography that he] set out to hurt him. . . . The attack caused knee ligament damage. Following it, [the victim] only played four substitute appearances in the next sixteen months'⁸⁴. Bartholomew quotes this example to illustrate the breakdown in British cultural norms since the 1950s, when 'Bad behaviour [in football] was punished severely'⁸⁵.

In R. v. Brown, Lord Mustill recognised that, 'In the contact sports each player . . . assumes the risk that the deliberate contact may have unintended effects, conceivably of sufficient severity to amount to grievous bodily harm. But he does not agree that this more serious kind of injury may be inflicted deliberately.'⁸⁶ Few would consent to being harmed or even killed by an insane person, and yet the law understands that insanity is a defence to any criminal charge. Similarly, in sporting contests, where it is understood that the game was merely being played, the nature of accidental injuries received ought to be tolerated with the same Christian spirit.

The challenge that Lord Mustill presents to defenders of boxing is that, on his description of the rules, the infliction of serious injury is actually the aim of the sport. Cheryl Hanna continues, '[M]any activities that involve the intentional infliction of bodily harm as the goal of the game have been outlawed or severely restricted. . . . Duelling is no longer legal in England and America, despite some early public resistance. . . . Fencing, however, remains a varsity sport, although fencers must wear protective gear, thereby reducing any risk of injury. In contrast, wrestling and prize fighting are legal, even though the purpose of the sport is to injure, but it is only professional boxers who can spar without protective headgear. Nevertheless, even in prize fighting, there are some very clear rules, such as no hitting below the belt. One referee for two participants arguably ensures that the rules will be followed and the safety of the players protected.'⁸⁷

Such a defence of boxing shows a sensitivity to the principle of charity. Whether the defence is sufficient, however, is beyond the scope of this article to examine.

Hanna continues, 'The law . . . has not extended the right to fight beyond organized sports played within the rules of the game.' She cites in support the Canadian Supreme Court case of Regina v. Jobidon, in which was upheld a criminal conviction for manslaughter arising from a bar room brawl. A defence based on chivalry was explicitly rejected. Hanna quotes the court:

'“Duelling was an activity not only condoned, but required by honour. Those days are fortunately long past. Our social norms no longer correlate strength of character with prowess at fisticuffs. . . . Erasing long-standing limits on consent would be a regressive step, one which would retard the advance of civilized norms of conduct.”'⁸⁸

Many of the legal judgments in this area of the law express concern at situations in which “angry passions” are aroused, distinguishing on that basis between fighting, on the one hand, and boxing on the other. In response to the opposition that it received, the Government amended the Mental Capacity Bill to specify in section 4(5) that the person authorised to kill a patient must not, in so doing, be 'motivated by a desire to bring about his death'. The criminal law has long understood, however, that motive (reasons) – as opposed to intent (full awareness of the consequences) – is irrelevant to the fact of harm done. In R. v. Brown, Lord Jauncey read the court in Rex v. Donovan as reasoning that, '[I]f the appellant acted so as to cause bodily harm he could not plead the gratification of his perverted desires as an excuse'⁸⁹.

The vacuousness of section 4(5) is implicitly admitted in the DCA/DoH explanatory notes to the MCA:

'This subsection does not change the previously understood common law on best interests. It does not mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the person.'⁹⁰

Motive is no more relevant, in fact, that the consent of the victim. The traditional legal exception from assault granted to “reasonable chastisement [of a child] by a parent or a person in loco parentis”⁹¹ is opposed by the anti-smacking lobby. That smacking may be done in a spirit of love, they would argue, is overridden by the harm that should be inferred from the objective facts⁹². The same argument has been proposed in this article against both “mercy” killing and fornication.

The exception of smacking, it is suggested, is a jurisdictional one. Within their own families, parents have the legal authority, and duty, to “enforce the law” – being the same Christian law that the State should be limited to enforcing – just as, within its jurisdiction, the State has authority to punish wrongdoers against their will. Indeed, the State would have to employ superior physical force in order to make effective any statutory ban on reasonable chastisement. Consequently, the argument against smacking is an argument against punishment entirely, and therefore self-defeating if used to support a legally enforceable ban on smacking.

The mistake should not be made that the law anywhere in Christendom was completely Christian until 1967. In The Social Results of Early Christianity, C. Schmidt relates the history of the abolition of gladiatorial combat in the Roman Empire:

'The intention of Constantine in forbidding gladiatorial exploits in all towns in the empire was inspired by humanity towards the unhappy ones who were compelled to fight, and by the wish to remove this opportunity of rousing the sanguinary passions of the people whom he wished to accustom to the pleasures of peace. . . . But this humane law of the great emperor was never executed, it was as powerless as the eloquence of the preachers of the Church to calm the eagerness of the people. The corps of the gladiators continued to exist; criminals were still sent to the arena, and it was not long before the law of 325 relating to them was withdrawn from the code'⁹³.

So things remained until 404 A.D., when, 'Telemachus, an eastern monk . . . threw himself into the arena, separated the combatants, and fell a victim to the fury of the spectators. It was only after this act of martyrdom for the cause of charity that Honorius made a law, prohibiting for ever this remnant of ancient cruelty'⁹⁴.

This story is a telling reminder of how hard it can be to effect a Christian change in the law when faced with a manipulative rhetoric which is designed to dominate the weak and vulnerable. The longer we hesitate to openly expose and confront these lies, the more difficult the task becomes.

1Quoted in 'Starved for funding', The Sunday Telegraph, 22^nd May 2005, p.18, col.1.

2The Mental Capacity Act received Royal Assent on 7^th April 2005 (see Explanatory Notes to Mental Capacity Act). The Act itself can be read here.

3See below – 'The Mental Capacity Act – Murder on the Parliament Express'.

5Jane Larson, '“Women Understand So Little, They Call My Good Nature 'Deceit': A Feminist Rethinking of Seduction', 93 Columbia Law Review 374 (1993), p.428.

7'Key crime bill clears the Lords', BBC News, 6^th April 2005, at http://news.bbc.co.uk/1/hi/uk_politics/vote_2005/frontpage/4418521.stm.

9'(1) This section applies if an NHS body . . . is proposing to provide, or secure the provision of, serious medical treatment for a person ("P") who lacks capacity to consent to the treatment . . . . (6) "Serious medical treatment" means treatment which involves providing, withholding or withdrawing treatment of a kind prescribed by regulations made by the appropriate authority.'

10'16 Powers to make decisions . . . (1) This section applies if a person ("P") lacks capacity in relation to a matter or matters concerning- (a) P's personal welfare . . . . (2) The court may- (a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters . . . . 17 . . . (1) The powers under section 16 as respects P's personal welfare extend in particular to- (d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P'.

11See Society for the Protection of Unborn Children, Submission [to the Parliamentary joint committee] on the Draft Mental Incapacity Bill, p.13, §79, referring to the House of Lords' decision in Airedale NHS Trust v. Bland [1993] AC 789.

12Leo Katz, Bad Acts and Guilty Minds, University of Chicago Press, 1987, p.241.

13Katz, op. cit., pp.137-8, quoting an eighteenth century commentator via Glazebrook, 'Criminal Omissions: The Duty Requirement in Offenses against the Person', Law Quarterly Review 76 (1960): 390.

17The Government meanwhile is backing a scheme to help mothers murder their unborn children at home (The Guardian, 16/2/06).

18James Bartholomew, The Welfare State We're In, Politico's, 2004, p.348.

21Keith M. Harrison, 'Law, Order and the Consent Defence', 12 St. Louis University Public Law Review 477-503 (1993), p.478.

25See, for example, Ross Clark, 'Wrong to smack but right to kill?', The Daily Telegraph, 7^th November 2004.

27Cheryl Hanna, 'Sex is not a Sport: Consent and Violence in Criminal Law', Boston College Law Review, Vol. 42, No.2, March 2001, 239-90, p.261.

29Quoted in Daniel Bonevac, Simple Logic, Harcourt Brace College Publishers, 1999, p. 118.

39The latest illustration of this corruption of love is a lawsuit being brought in America, the gist of whose argument is: “If a pregnant woman can choose among abortion, adoption or raising a child, a man involved in an unintended pregnancy should have the choice of declining the financial responsibilities of fatherhood” (8/3/06).

40Jung Chang and Jon Halliday, Mao: The Unknown Story, Jonathan Cape, 2005, p.23. This example was chosen because it just happened to be the book I was reading at the time.

42In R. v. Brown [1994] 1 A.C. 212 (H.L.), it was observed that valid consent could be given to assault resulting in “merely transient and trifling” injury.

44Compare, for example, Cheryl Hanna's comments below regarding judicial condemnation of sado-masochism – 'From fornication to murder'.

45A conclusion that is now being promoted by a new Dutch political party (1/6/06). The fact that paedophilia is still proscribed in Liberal regimes can be accounted for in terms of what journalist Lawrence Auster insightfully defines as “the unprincipled exception”.

51'16 . . . (3) Subsection (4) applies if the court is satisfied- (a) that fraud or undue pressure was used to induce P- (i) to execute an instrument for the purpose of creating a lasting power of attorney, or (ii) to create a lasting power of attorney . . . (4) The court may- (a) direct that an instrument purporting to create the lasting power of attorney is not to be registered, or (b) if P lacks capacity to do so, revoke the instrument or the lasting power of attorney.

52Charles W. Socarides, 'Thought Reform And The Psychology of Homosexual Advocacy', National Association for Research and Therapy of Homosexuality, 1995, quoting Robert J. Lifton, Thought Reform and the Psychology of Totalism: A Study of “Brainwashing” in China, W.W. Norton and Company, 1961.

61In America, the association between abortion and lust has been made abundantly clear by the Washington state branch of the National Abortion and Reproductive Rights Action League (NARAL), which, as reported by Fox News on 13th July 2005, planned to host a “Screw Abstinence Party”. In Britain, drive-by media outlet The Independent has produced a Catholic-bashing article that is so transparent in its advocacy of sexual incontinence at any cost, including manslaughter, it is almost comical (3/5/06; the full article can be read for free here).

62Harrison, op. cit., p.482, n.24, quoting Patrick Fitzgerald, Consent, Crime and Rationality, in Legal Theory Meets Legal Practice, 209 (1988), p.220.

64cf. Fr. Richard John Neuhaus' comments (second item in link) in support of the Bush-McCain agreement on banning torture by U.S. personnel.

65See, for example, 'Cleft lip abortion done “in good faith”', The Guardian, 17^th March 2005.

68It is reported that, in Germany, prosecutors have obtained the retrial for murder of a man who was initially convicted of manslaughter only, “apparently because, even though the crime was premeditated, the victim [a 43-year-old computer engineer] had given his consent” (The Sunday Times, 8/1/06).

70 'Complete Obsession', Horizon, BBC2, 17^th February 2000. Compare this story from British Nursing News Online, in which senior nurses are reported to have put before the Royal College of Nursing a proposal for “Clean Blades for Self-Harmers” (5/2/06).

71An idea of the pecuniary benefits deriving from this domination of technology can be found in an article on 'The baby millionaires' from The Independent of 8^th January 2006. According to this article from The Times, “hundreds of thousands of [human embryos] are currently stored in deep freezers around [Britain]” (16/2/06).

72The twisted and inhuman consequences for the child are well illustrated by this case reported in The Daily Telegraph of 8/3/06. See also this Times article of 13/5/06. Note also the use of the words “baby” and”child” in this latter article. Clearly, when an “embryo” becomes a “baby” is a question of choice – the journalist's choice.

73The same obliviousness to love of the child is exemplified in this Times article from 14^th February 2006, which focuses solely on the issue of “speculative donation” discussed above.

76Harrison disputes this assertion. See ibid., pp.499-501. This issue is currently before a court in the United States (19/2/06).

78See, for example, Cheryl Hanna, supra – 'From fornication to murder'.

81R. v. Brown [1994] 1 A.C. 212 (H.L.), p.273; cf. this Times article in which rugby, a game whose rules do not permit the deliberate infliction of bodily harm, is used as an analogy for applying the rule of caveat emptor to sex, which, as has already been discussed, is the making of marriages and families. On the subject of violence and the game of rugby, see this Times article of 14th April 2006.

82Harrison, p.498, n.75, quoting Mike Tyson via 'Ban Boxing', The New Republic, Aug. 8, 1998, at 7.

93C. Schmidt, The Social Results of Christianity, Wm. Isbister Limited, 1885, p.434.