The fight to decriminalize sexual intimacy and undo morals laws offers another crucial example of decriminalization. We will study various actors, including doctors, law enforcement officers, lawyers, and judges, who shaped the fight to decriminalize LGBT Americans by redefining homosexuality and then defining sexual orientation. We will explore how these historical shifts influenced and were reworked by the Supreme Court's decisions. And we will consider the limits of the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558 (2003)--which focused on private spaces, intimate choices, and the consent of adults--especially at a time when a movement to recriminalize some acts of intimacy has taken hold.

5.1 Bowers v. Hardwick 5.1 Bowers v. Hardwick

Supreme Court of the United States

478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841, 1986 U.S. LEXIS 123, SCDB 1985-144

No. 85-140

1986-06-30

478 U.S. 186 (1986)
BOWERS, ATTORNEY GENERAL OF GEORGIA
v.
HARDWICK ET AL.
No. 85-140.

Supreme Court of United States.
Argued March 31, 1986
Decided June 30, 1986

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

187*187 Michael E. Hobbs, Senior Assistant Attorney General of Georgia, argued the cause for petitioner. With him on the briefs were Michael J. Bowers, Attorney General, pro se, Marion O. Gordon, First Assistant Attorney General, and Daryl A. Robinson, Senior Assistant Attorney General.

Laurence H. Tribe argued the cause for respondent Hardwick. With him on the brief were Kathleen M. Sullivan and Kathleen L. Wilde.[*]

Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Robert Abrams, Attorney General of New York, Robert Hermann, Solicitor General, Lawrence S. Kahn, Howard L. Zwickel, Charles R. Fraser, and Sanford M. Cohen, Assistant Attorneys General, and John Van de Kamp, Attorney General of California; for the American Jewish Congress by Daniel D. Levenson, David Cohen, and Frederick Mandel; for the American Psychological Association et al. by Margaret Farrell Ewing, Donald N. Bersoff, Anne Simon, Nadine Taub, and Herbert Semmel; for the Association of the Bar of the City of New York by Steven A. Rosen; for the National Organization for Women by John S. L. Katz; and for the Presbyterian Church (U. S. A.) et al. by Jeffrey O. Bramlett.

Briefs of amici curiae were filed for the Lesbian Rights Project et al. by Mary C. Dunlap; and for the National Gay Rights Advocates et al. by Edward P Errante, Leonard Graff, and Jay Kohorn.

JUSTICE WHITE delivered the opinion of the Court.

In August 1982, respondent Hardwick (hereafter respondent) was charged with violating the Georgia statute criminalizing 188*188 sodomy¹ by committing that act with another adult male in the bedroom of respondent’s home. After a preliminary hearing, the District Attorney decided not to present the matter to the grand jury unless further evidence developed.

Respondent then brought suit in the Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy.[2] He asserted that he was a practicing homosexual, that the Georgia sodomy statute, as administered by the defendants, placed him in imminent danger of arrest, and that the statute for several reasons violates the Federal Constitution. The District Court granted the defendants’ motion to dismiss for failure to state a claim, relying on Doe v. Commonwealth’s Attorney for the City of Richmond, 403 F. Supp. 1199 (ED Va. 1975), which this Court summarily affirmed, 425 U. S. 901 (1976).

189*189 A divided panel of the Court of Appeals for the Eleventh Circuit reversed. 760 F. 2d 1202 (1985). The court first held that, because Doe was distinguishable and in any event had been undermined by later decisions, our summary affirmance in that case did not require affirmance of the District Court. Relying on our decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Stanley v. Georgia, 394 U. S. 557 (1969); and Roe v. Wade, 410 U. S. 113 (1973), the court went on to hold that the Georgia statute violated respondent’s fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment. The case was remanded for trial, at which, to prevail, the State would have to prove that the statute is supported by a compelling interest and is the most narrowly drawn means of achieving that end.

Because other Courts of Appeals have arrived at judgments contrary to that of the Eleventh Circuit in this case,[3] we granted the Attorney General’s petition for certiorari questioning the holding that the sodomy statute violates the fundamental rights of homosexuals. We agree with petitioner that the Court of Appeals erred, and hence reverse its judgment.[4]

190*190 This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy, or of state-court decisions invalidating those laws on state constitutional grounds. The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time. The case also calls for some judgment about the limits of the Court’s role in carrying out its constitutional mandate.

We first register our disagreement with the Court of Appeals and with respondent that the Court’s prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and for all intents and purposes have decided this case. The reach of this line of cases was sketched in Carey v. Population Services International, 431 U. S. 678, 685 (1977). Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923), were described as dealing with child rearing and education; Prince v. Massachusetts, 321 U. S. 158 (1944), with family relationships; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942), with procreation; Loving v. Virginia, 388 U. S. 1 (1967), with marriage; Griswold v. Connecticut, supra, and Eisenstadt v. Baird, supra, with contraception; and Roe v. Wade, 410 U. S. 113 (1973), with abortion. The latter three cases were interpreted as construing the Due Process Clause of the Fourteenth Amendment to confer a fundamental individual right to decide whether or not to beget or bear a child. Carey v. Population Services International, supra, at 688-689.

Accepting the decisions in these cases and the above description of them, we think it evident that none of the rights announced in those cases bears any resemblance to the 191*191 claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Indeed, the Court’s opinion in Carey twice asserted that the privacy right, which the Griswold line of cases found to be one of the protections provided by the Due Process Clause, did not reach so far. 431 U. S., at 688, n. 5, 694, n. 17.

Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. It is true that despite the language of the Due Process Clauses of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which those Clauses have been interpreted to have substantive content, subsuming rights that to a great extent are immune from federal or state regulation or proscription. Among such cases are those recognizing rights that have little or no textual support in the constitutional language. Meyer, Prince, and Pierce fall in this category, as do the privacy cases from Griswold to Carey.

Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution’s text involves much more than the imposition of the Justices’ own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In Palko v. Connecticut, 302 U. S. 319, 325, 326 (1937), it was said that this category includes those fundamental liberties that are “implicit in the concept of ordered liberty,” such that “neither 192*192 liberty nor justice would exist if [they] were sacrificed.” A different description of fundamental liberties appeared in Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (opinion of POWELL, J.), where they are characterized as those liberties that are “deeply rooted in this Nation’s history and tradition.” Id., at 503 (POWELL, J.). See also Griswold v. Connecticut, 381 U. S., at 506.

It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. See generally Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U. Miami L. Rev. 521, 525 (1986). Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights.[5] In 1868, when the Fourteenth Amendment was 193*193 ratified, all but 5 of the 37 States in the Union had criminal sodomy laws.[6] In fact, until 1961,[7] all 50 States outlawed sodomy, and today, 24 States and the District of Columbia 194*194 continue to provide criminal penalties for sodomy performed in private and between consenting adults. See Survey, U. Miami L. Rev., supra, at 524, n. 9. Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.

Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930’s, which resulted in the repudiation 195*195 of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls for short of overcoming this resistance.

Respondent, however, asserts that the result should be different where the homosexual conduct occurs in the privacy of the home. He relies on Stanley v. Georgia, 394 U. S. 557 (1969), where the Court held that the First Amendment prevents conviction for possessing and reading obscene material in the privacy of one’s home: “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.” Id., at 565.

Stanley did protect conduct that would not have been protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the First Amendment. The right pressed upon us here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amendment. Its limits are also difficult to discern. Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home. Stanley itself recognized that its holding offered no protection for the possession in the home of drugs, firearms, or stolen goods. Id., at 568, n. 11. And if respondent’s submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct 196*196 while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.

Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.[8]

Accordingly, the judgment of the Court of Appeals is

Reversed.

CHIEF JUSTICE BURGER, concurring.

I join the Court’s opinion, but I write separately to underscore my view that in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.

As the Court notes, ante, at 192, the proscriptions against sodomy have very “ancient roots.” Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality 197*197 and the Western Christian Tradition 70-81 (1975). During the English Reformation when powers of the ecclesiastical courts were transferred to the King’s Courts, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone described “the infamous crime against nature” as an offense of “deeper malignity” than rape, a heinous act “the very mention of which is a disgrace to human nature,” and “a crime not fit to be named.” 4 W. Blackstone, Commentaries *215. The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.

This is essentially not a question of personal “preferences” but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.

JUSTICE POWELL, concurring.

I join the opinion of the Court. I agree with the Court that there is no fundamental right — i. e., no substantive right under the Due Process Clause — such as that claimed by respondent Hardwick, and found to exist by the Court of Appeals. This is not to suggest, however, that respondent may not be protected by the Eighth Amendment of the Constitution. The Georgia statute at issue in this case, Ga. Code Ann. § 16-6-2 (1984), authorizes a court to imprison a person for up to 20 years for a single private, consensual act of sodomy. In my view, a prison sentence for such conduct — certainly a sentence of long duration — would create a serious Eighth Amendment issue. Under the Georgia statute a single act of sodomy, even in the private setting of a home, is a 198*198 felony comparable in terms of the possible sentence imposed to serious felonies such as aggravated battery, § 16-5-24, first-degree arson, § 16-7-60, and robbery, § 16-8-40.[1]

In this case, however, respondent has not been tried, much less convicted and sentenced.[2] Moreover, respondent has not raised the Eighth Amendment issue below. For these reasons this constitutional argument is not before us.

199*199 JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting.

This case is no more about “a fundamental right to engage in homosexual sodomy,” as the Court purports to declare, ante, at 191, than Stanley v. Georgia, 394 U. S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U. S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone.” Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).

The statute at issue, Ga. Code Ann. § 16-6-2 (1984), denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity. The Court concludes that § 16-6-2 is valid essentially because “the laws of . . . many States . . . still make such conduct illegal and have done so for a very long time.” Ante, at 190. But the fact that the moral judgments expressed by statutes like § 16-6-2 may be ” `natural and familiar . . . ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.’ ” Roe v. Wade, 410 U. S. 113, 117 (1973), quoting Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Like Justice Holmes, I believe that ”[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). I believe we must analyze respondent Hardwick’s claim in the light of the values that underlie the constitutional right to privacy. If that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate 200*200 aspects of their lives, it must do more than assert that the choice they have made is an ” `abominable crime not fit to be named among Christians.’ ” Herring v. State, 119 Ga. 709, 721, 46 S. E. 876, 882 (1904).

In its haste to reverse the Court of Appeals and hold that the Constitution does not “confe® a fundamental right upon homosexuals to engage in sodomy,” ante, at 190, the Court relegates the actual statute being challenged to a footnote and ignores the procedural posture of the case before it. A fair reading of the statute and of the complaint clearly reveals that the majority has distorted the question this case presents.

First, the Court’s almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used. Unlike the Court, the Georgia Legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens. Cf. ante, at 188, n. 2. Rather, Georgia has provided that ”[a] person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” Ga. Code Ann. § 16-6-2(a) (1984). The sex or status of the persons who engage in the act is irrelevant as a matter of state law. In fact, to the extent I can discern a legislative purpose for Georgia’s 1968 enactment of § 16-6-2, that purpose seems to have been to broaden the coverage of the law to reach heterosexual as well as homosexual activity.[1] I therefore see no basis for the 201*201 Court’s decision to treat this case as an “as applied” challenge to § 16-6-2, see ante, at 188, n. 2, or for Georgia’s attempt, both in its brief and at oral argument, to defend § 16-6-2 solely on the grounds that it prohibits homosexual activity. Michael Hardwick’s standing may rest in significant part on Georgia’s apparent willingness to enforce against homosexuals a law it seems not to have any desire to enforce against heterosexuals. See Tr. of Oral Arg. 4-5; cf. 760 F. 2d 1202, 1205-1206 (CA11 1985). But his claim that § 16-6-2 involves an unconstitutional intrusion into his privacy and his right of intimate association does not depend in any way on his sexual orientation.

Second, I disagree with the Court’s refusal to consider whether § 16-6-2 runs afoul of the Eighth or Ninth Amendments or the Equal Protection Clause of the Fourteenth Amendment. Ante, at 196, n. 8. Respondent’s complaint expressly invoked the Ninth Amendment, see App. 6, and he relied heavily before this Court on Griswold v. Connecticut, 381 U. S. 479, 484 (1965), which identifies that Amendment as one of the specific constitutional provisions giving “life and substance” to our understanding of privacy. See Brief for Respondent Hardwick 10-12; Tr. of Oral Arg. 33. More importantly, the procedural posture of the case requires that we affirm the Court of Appeals’ judgment if there is any ground on which respondent may be entitled to relief. This case is before us on petitioner’s motion to dismiss for failure to state a claim, Fed. Rule Civ. Proc. 12(b)(6). See App. 17. It is a well-settled principle of law that “a complaint should not be dismissed merely because a plaintiff’s allegations do not support the particular legal theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.” 202*202 Bramlet v. Wilson, 495 F. 2d 714, 716 (CA8 1974); see Parr v. Great Lakes Express Co., 484 F. 2d 767, 773 (CA7 1973); Due v. Tallahassee Theaters, Inc., 333 F. 2d 630, 631 (CA5 1964); United States v. Howell, 318 F. 2d 162, 166 (CA9 1963); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357, pp. 601-602 (1969); see also Conley v. Gibson, 355 U. S. 41, 45-46 (1957). Thus, even if respondent did not advance claims based on the Eighth or Ninth Amendments, or on the Equal Protection Clause, his complaint should not be dismissed if any of those provisions could entitle him to relief. I need not reach either the Eighth Amendment or the Equal Protection Clause issues because I believe that Hardwick has stated a cognizable claim that § 16-6-2 interferes with constitutionally protected interests in privacy and freedom of intimate association. But neither the Eighth Amendment nor the Equal Protection Clause is so clearly irrelevant that a claim resting on either provision should be peremptorily dismissed.[2] The Court’s cramped reading of the 203*203 issue before it makes for a short opinion, but it does little to make for a persuasive one.

“Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government.” Thornburgh v. American College of Obstetricians & Gynecologists, 476 U. S. 747, 772 (1986). In construing the right to privacy, the Court has proceeded along two somewhat distinct, 204*204 albeit complementary, lines. First, it has recognized a privacy interest with reference to certain decisions that are properly for the individual to make. E. g., Roe v. Wade, 410 U. S. 113 (1973); Pierce v. Society of Sisters, 268 U. S. 510 (1925). Second, it has recognized a privacy interest with reference to certain places without regard for the particular activities in which the individuals who occupy them are engaged. E. g., United States v. Karo, 468 U. S. 705 (1984); Payton v. New York, 445 U. S. 573 (1980); Rios v. United States, 364 U. S. 253 (1960). The case before us implicates both the decisional and the spatial aspects of the right to privacy.

The Court concludes today that none of our prior cases dealing with various decisions that individuals are entitled to make free of governmental interference “bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case.” Ante, at 190-191. While it is true that these cases may be characterized by their connection to protection of the family, see Roberts v. United States Jaycees, 468 U. S. 609, 619 (1984), the Court’s conclusion that they extend no further than this boundary ignores the warning in Moore v. East Cleveland, 431 U. S. 494, 501 (1977) (plurality opinion), against “clos[ing] our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment’s Due Process Clause.” We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life. ”[T]he concept of privacy embodies the `moral fact that a person belongs to himself and not others nor to society as a whole.’ ” Thornburgh v. American College of Obstetricians & Gynecologists, 476 U. S., at 777, n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence, 6 Phil. & Pub. Affairs 288-289 (1977). And so we protect the decision whether to 205*205 marry precisely because marriage “is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut, 381 U. S., at 486. We protect the decision whether to have a child because parenthood alters so dramatically an individual’s self-definition, not because of demographic considerations or the Bible’s command to be fruitful and multiply. Cf. Thornburgh v. American College of Obstetricians & Gynecologists, supra, at 777, n. 6 (STEVENS, J., concurring). And we protect the family because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households. Cf. Moore v. East Cleveland, 431 U. S., at 500-506 (plurality opinion). The Court recognized in Roberts, 468 U. S., at 619, that the “ability independently to define one’s identity that is central to any concept of liberty” cannot truly be exercised in a vacuum; we all depend on the “emotional enrichment from close ties with others.” Ibid.

Only the most willful blindness could obscure the fact that sexual intimacy is “a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality,” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 63 (1973); see also Carey v. Population Services International, 431 U. S. 678, 685 (1977). The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many “right” ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds. See Karst, The Freedom of Intimate Association, 89 Yale L. J. 624, 637 (1980); cf. Eisenstadt v. Baird, 405 U. S. 438, 453 (1972); Roe v. Wade, 410 U. S., at 153.

In a variety of circumstances we have recognized that a necessary corollary of giving individuals freedom to choose 206*206 how to conduct their lives is acceptance of the fact that different individuals will make different choices. For example, in holding that the clearly important state interest in public education should give way to a competing claim by the Amish to the effect that extended formal schooling threatened their way of life, the Court declared: “There can be no assumption that today’s majority is `right’ and the Amish and others like them are `wrong.’ A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.” Wisconsin v. Yoder, 406 U. S. 205, 223-224 (1972). The Court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others.

The behavior for which Hardwick faces prosecution occurred in his own home, a place to which the Fourth Amendment attaches special significance. The Court’s treatment of this aspect of the case is symptomatic of its overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases. Just as the right to privacy is more than the mere aggregation of a number of entitlements to engage in specific behavior, so too, protecting the physical integrity of the home is more than merely a means of protecting specific activities that often take place there. Even when our understanding of the contours of the right to privacy depends on “reference to a `place,’ ” Katz v. United States, 389 U. S., at 361 (Harlan, J., concurring), “the essence of a Fourth Amendment violation is `not the breaking of [a person’s] doors, and the rummaging of his drawers,’ but rather is `the invasion of his indefensible right of personal security, personal liberty and private property.’ ” California v. Ciraolo, 476 U. S. 207, 226 (1986) (POWELL, J., dissenting), 207*207 quoting Boyd v. United States, 116 U. S. 616, 630 (1886).

The Court’s interpretation of the pivotal case of Stanley v. Georgia, 394 U. S. 557 (1969), is entirely unconvincing. Stanley held that Georgia’s undoubted power to punish the public distribution of constitutionally unprotected, obscene material did not permit the State to punish the private possession of such material. According to the majority here, Stanley relied entirely on the First Amendment, and thus, it is claimed, sheds no light on cases not involving printed materials. Ante, at 195. But that is not what Stanley said. Rather, the Stanley Court anchored its holding in the Fourth Amendment’s special protection for the individual in his home:

” `The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.’ ..... “These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases — the right to satisfy his intellectual and emotional needs in the privacy of his own home.” 394 U. S., at 564-565, quoting Olmstead v. United States, 277 U. S., at 478 (Brandeis, J., dissenting).

The central place that Stanley gives Justice Brandeis’ dissent in Olmstead, a case raising no First Amendment claim, shows that Stanley rested as much on the Court’s understanding of the Fourth Amendment as it did on the First. Indeed, in Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973), the Court suggested that reliance on the Fourth 208*208 Amendment not only supported the Court’s outcome in Stanley but actually was necessary to it: “If obscene material unprotected by the First Amendment in itself carried with it a `penumbra’ of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the `privacy of the home,’ which was hardly more than a reaffirmation that `a man’s home is his castle.’ ” 413 U. S., at 66. “The right of the people to be secure in their . . . houses,” expressly guaranteed by the Fourth Amendment, is perhaps the most “textual” of the various constitutional provisions that inform our understanding of the right to privacy, and thus I cannot agree with the Court’s statement that ”[t]he right pressed upon us here has no . . . support in the text of the Constitution,” ante, at 195. Indeed, the right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution’s protection of privacy.

III

The Court’s failure to comprehend the magnitude of the liberty interests at stake in this case leads it to slight the question whether petitioner, on behalf of the State, has justified Georgia’s infringement on these interests. I believe that neither of the two general justifications for § 16-6-2 that petitioner has advanced warrants dismissing respondent’s challenge for failure to state a claim.

First, petitioner asserts that the acts made criminal by the statute may have serious adverse consequences for “the general public health and welfare,” such as spreading communicable diseases or fostering other criminal activity. Brief for Petitioner 37. Inasmuch as this case was dismissed by the District Court on the pleading, it is not surprising that the record before us is barren of any evidence to support petitioner’s claim.[3] In light of the state of the record, I see 209*209 no justification for the Court’s attempt to equate the private, consensual sexual activity at issue here with the “possession in the home of drugs, firearms, or stolen goods,” ante, at 195, to which Stanley refused to extend its protection. 394 U. S., at 568, n. 11. None of the behavior so mentioned in Stanley can properly be viewed as ”[v]ictimless,” ante, at 195: drugs and weapons are inherently dangerous, see, e. g., McLaughlin v. United States, 476 U. S. 16 (1986), and for property to be “stolen,” someone must have been wrongfully deprived of it. Nothing in the record before the Court provides any justification for finding the activity forbidden by § 16-6-2 to be physically dangerous, either to the persons engaged in it or to others.[4]

210*210 The core of petitioner’s defense of § 16-6-2, however, is that respondent and others who engage in the conduct prohibited by § 16-6-2 interfere with Georgia’s exercise of the ” `right of the Nation and of the States to maintain a decent society,’ ” Paris Adult Theater I v. Slaton, 413 U. S., at 59-60, quoting Jacobellis v. Ohio, 378 U. S. 184, 199 (1964) (Warren, C. J., dissenting). Essentially, petitioner argues, and the Court agrees, that the fact that the acts described in § 16-6-2 “for hundreds of years, if not thousands, have been uniformly condemned as immoral” is a sufficient reason to permit a State to ban them today. Brief for Petitioner 19; see ante, at 190, 192-194, 196.

I cannot agree that either the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from this Court’s security. See, e. g., Roe v. Wade, 410 U. S. 113 (1973); Loving v. Virginia, 388 U. S. 1 (1967); Brown v. Board of Education, 347 U. S. 483 (1954).[5] As Justice Jackson wrote so eloquently 211*211 for the Court in West Virginia Board of Education v. Barnette, 319 U. S. 624, 641-642 (1943), “we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. . . . [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” See also Karst, 89 Yale L. J., at 627. It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.

The assertion that “traditional Judeo-Christian values proscribe” the conduct involved, Brief for Petitioner 20, cannot provide an adequate justification for § 16-6-2. That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends instead on whether the State can advance some justification for its law beyond its conformity to religious doctrine. See, e. g., McGowan v. Maryland, 366 U. S. 420, 429-453 (1961); Stone v. Graham, 449 U. S. 39 (1980). Thus, far from buttressing his case, petitioner’s invocation of Leviticus, Romans, St. Thomas Aquinas, and sodomy’s heretical status during the Middle Ages undermines his suggestion that § 16-6-2 represents a legitimate use of secular coercive power.[6] A State can no more punish private behavior because 212*212 of religious intolerance than it can punish such behavior because of racial animus. “The Constitution cannot control such prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U. S. 429, 433 (1984). No matter how uncomfortable a certain group may make the majority of this Court, we have held that ”[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.” O’Connor v. Donaldson, 422 U. S. 563, 575 (1975). See also Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985); United States Dept. of Agriculture v. Moreno, 413 U. S. 528, 534 (1973).

Nor can § 16-6-2 be justified as a “morally neutral” exercise of Georgia’s power to “protect the public environment,” Paris Adult Theatre I, 413 U. S., at 68-69. Certainly, some private behavior can affect the fabric of society as a whole. Reasonable people may differ about whether particular sexual acts are moral or immoral, but “we have ample evidence for believing that people will not abandon morality, will not think any better of murder, cruelty and dishonesty, merely because some private sexual practice which they abominate is not punished by the law.” H. L. A. Hart, Immorality and Treason, reprinted in The Law as Literature 220, 225 (L. Blom-Cooper ed. 1961). Petitioner and the Court fail to see the difference between laws that protect public sensibilities and those that enforce private morality. Statutes banning 213*213 public sexual activity are entirely consistent with protecting the individual’s liberty interest in decisions concerning sexual relations: the same recognition that those decisions are intensely private which justifies protecting them from governmental interference can justify protecting individuals from unwilling exposure to the sexual activities of others. But the mere fact that intimate behavior may be punished when it takes place in public cannot dictate how States can regulate intimate behavior that occurs in intimate places. See Paris Adult Theatre I, 413 U. S., at 66, n. 13 (“marital intercourse on a street corner or a theater stage” can be forbidden despite the constitutional protection identified in Griswold v. Connecticut, 381 U. S. 479 (1965)).[7]

This case involves no real interference with the rights of others, for the mere knowledge that other individuals do not adhere to one’s value system cannot be a legally cognizable interest, cf. Diamond v. Charles, 476 U. S. 54, 65-66 (1986), let alone an interest that can justify invading the houses, hearts, and minds of citizens who choose to live their lives differently.

It took but three years for the Court to see the error in its analysis in Minersville School District v. Gobitis, 310 U. S. 214*214 586 (1940), and to recognize that the threat to national cohesion posed by a refusal to salute the flag was vastly outweighed by the threat to those same values posed by compelling such a salute. See West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943). I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation’s history than tolerance of nonconformity could ever do. Because I think the Court today betrays those values, I dissent.

JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.

Like the statute that is challenged in this case,[1] the rationale of the Court’s opinion applies equally to the prohibited conduct regardless of whether the parties who engage in it are married or unmarried, or are of the same or different sexes.[2] Sodomy was condemned as an odious and sinful type of behavior during the formative period of the common law.[3] 215*215 That condemnation was equally damning for heterosexual and homosexual sodomy.[4] Moreover, it provided no special exemption for married couples.[5] The license to cohabit and to produce legitimate offspring simply did not include any permission to engage in sexual conduct that was considered a “crime against nature.”

The history of the Georgia statute before us clearly reveals this traditional prohibition of heterosexual, as well as homosexual, sodomy.[6] Indeed, at one point in the 20th century, Georgia’s law was construed to permit certain sexual conduct between homosexual women even though such conduct was prohibited between heterosexuals.[7] The history of the statutes cited by the majority as proof for the proposition that sodomy is not constitutionally protected, ante, at 192-194, 216*216 and nn. 5 and 6, similarly reveals a prohibition on heterosexual, as well as homosexual, sodomy.[8]

Because the Georgia statute expresses the traditional view that sodomy is an immoral kind of conduct regardless of the identity of the persons who engage in it, I believe that a proper analysis of its constitutionality requires consideration of two questions: First, may a State totally prohibit the described conduct by means of a neutral law applying without exception to all persons subject to its jurisdiction? If not, may the State save the statute by announcing that it will only enforce the law against homosexuals? The two questions merit separate discussion.

Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.[9] Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Griswold v. Connecticut, 381 U. S. 479 (1965). Moreover, this protection extends to intimate choices by unmarried as well as married persons. Carey v. Population Services International, 431 U. S. 678 (1977); Eisenstadt v. Baird, 405 U. S. 438 (1972).

217*217 In consideration of claims of this kind, the Court has emphasized the individual interest in privacy, but its decisions have actually been animated by an even more fundamental concern. As I wrote some years ago:

“These cases do not deal with the individual’s interest in protection from unwarranted public attention, comment, or exploitation. They deal, rather, with the individual’s right to make certain unusually important decisions that will affect his own, or his family’s destiny. The Court has referred to such decisions as implicating `basic values,’ as being `fundamental,’ and as being dignified by history and tradition. The character of the Court’s language in these cases brings to mind the origins of the American heritage of freedom — the abiding interest in individual liberty that makes certain state intrusions on the citizen’s right to decide how he will live his own life intolerable. Guided by history, our tradition of respect for the dignity of individual choice in matters of conscience and the restraints implicit in the federal system, federal judges have accepted the responsibility for recognition and protection of these rights in appropriate cases.” Fitzgerald v. Porter Memorial Hospital, 523 F. 2d 716, 719-720 (CA7 1975) (footnotes omitted), cert. denied, 425 U. S. 916 (1976).

Society has every right to encourage its individual members to follow particular traditions in expressing affection for one another and in gratifying their personal desires. It, of course, may prohibit an individual from imposing his will on another to satisfy his own selfish interests. It also may prevent an individual from interfering with, or violating, a legally sanctioned and protected relationship, such as marriage. And it may explain the relative advantages and disadvantages of different forms of intimate expression. But when individual married couples are isolated from observation by others, the way in which they voluntarily choose to conduct their intimate relations is a matter for them — not the 218*218 State — to decide.[10] The essential “liberty” that animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage in nonreproductive, sexual conduct that others may consider offensive or immoral.

Paradoxical as it may seem, our prior cases thus establish that a State may not prohibit sodomy within “the sacred precincts of marital bedrooms,” Griswold, 381 U. S., at 485, or, indeed, between unmarried heterosexual adults. Eisenstadt, 405 U. S., at 453. In all events, it is perfectly clear that the State of Georgia may not totally prohibit the conduct proscribed by § 16-6-2 of the Georgia Criminal Code.

If the Georgia statute cannot be enforced as it is written — if the conduct it seeks to prohibit is a protected form of liberty for the vast majority of Georgia’s citizens — the State must assume the burden of justifying a selective application of its law. Either the persons to whom Georgia seeks to apply its statute do not have the same interest in “liberty” that others have, or there must be a reason why the State may be permitted to apply a generally applicable law to certain persons that it does not apply to others.

The first possibility is plainly unacceptable. Although the meaning of the principle that “all men are created equal” is not always clear, it surely must mean that every free citizen has the same interest in “liberty” that the members of the majority share. From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary 219*219 associations with his companions. State intrusion into the private conduct of either is equally burdensome.

The second possibility is similarly unacceptable. A policy of selective application must be supported by a neutral and legitimate interest — something more substantial than a habitual dislike for, or ignorance about, the disfavored group. Neither the State nor the Court has identified any such interest in this case. The Court has posited as a justification for the Georgia statute “the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.” Ante, at 196. But the Georgia electorate has expressed no such belief — instead, its representatives enacted a law that presumably reflects the belief that all sodomy is immoral and unacceptable. Unless the Court is prepared to conclude that such a law is constitutional, it may not rely on the work product of the Georgia Legislature to support its holding. For the Georgia statute does not single out homosexuals as a separate class meriting special disfavored treatment.

Nor, indeed, does not Georgia prosecutor even believe that all homosexuals who violate this statute should be punished. This conclusion is evident from the fact that the respondent in this very case has formally acknowledged in his complaint and in court that he has engaged, and intends to continue to engage, in the prohibited conduct, yet the State has elected not to process criminal charges against him. As JUSTICE POWELL points out, moreover, Georgia’s prohibition on private, consensual sodomy has not been enforced for decades.[11] The record of nonenforcement, in this case and in the last several decades, belies the Attorney General’s representations 220*220 about the importance of the State’s selective application of its generally applicable law.[12]

Both the Georgia statute and the Georgia prosecutor thus completely fail to provide the Court with any support for the conclusion that homosexual sodomy, simpliciter, is considered unacceptable conduct in that State, and that the burden of justifying a selective application of the generally applicable law has been met.

III

The Court orders the dismissal of respondent’s complaint even though the State’s statute prohibits all sodomy; even though that prohibition is concededly unconstitutional with respect to heterosexuals; and even though the State’s post hoc explanations for selective application are belied by the State’s own actions. At the very least, I think it clear at this early stage of the litigation that respondent has alleged a constitutional claim sufficient to withstand a motion to dismiss.[13]

I respectfully dissent.

[*] Briefs of amici curiae urging reversal were filed for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Rutherford Institute et al. by W. Charles Bundren, Guy O. Farley, Jr., George M. Weaver, William B. Hollberg, Wendell R. Bird, John W Whitehead, Thomas O. Kotouc, and Alfred Lindh; and for David Robinson, Jr., pro se.

[1] Georgia Code Ann. § 16-6-2 (1984) provides, in pertinent part, as follows:

”(a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. . . .

”(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. . . .”

[2] John and Mary Doe were also plaintiffs in the action. They alleged that they wished to engage in sexual activity proscribed by § 16-6-2 in the privacy of their home, App. 3, and that they had been “chilled and deterred” from engaging in such activity by both the existence of the statute and Hardwick’s arrest. Id., at 5. The District Court held, however, that because they had neither sustained, nor were in immediate danger of sustaining, any direct injury from the enforcement of the statute, they did not have proper standing to maintain the action. Id., at 18. The Court of Appeals affirmed the District Court’s judgment dismissing the Does’ claim for lack of standing, 760 F. 2d 1202, 1206-1207 (CA11 1985), and the Does do not challenge that holding in this Court.

The only claim properly before the Court, therefore, is Hardwick’s challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy.

[3] See Baker v. Wade, 769 F. 2d 289, rehearing denied, 774 F. 2d 1285 (CA5 1985) (en banc); Dronenburg v. Zech, 239 U. S. App. D. C. 229, 741 F. 2d 1388, rehearing denied, 241 U. S. App. D. C. 262, 746 F. 2d 1579 (1984).

[4] Petitioner also submits that the Court of Appeals erred in holding that the District Court was not obligated to follow our summary affirmance in Doe. We need not resolve this dispute, for we prefer to give plenary consideration to the merits of this case rather than rely on our earlier action in Doe. See Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 14 (1976); Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 309, n. 1 (1976); Edelman v. Jordan, 415 U. S. 651, 671 (1974). Cf. Hicks v. Miranda, 422 U. S. 332, 344 (1975).

[5] Criminal sodomy laws in effect in 1791:

Connecticut: 1 Public Statute Laws of the State of Connecticut, 1808, Title LXVI, ch. 1, § 2 (rev. 1672).

Delaware: 1 Laws of the State of Delaware, 1797, ch. 22, § 5 (passed 1719).

Georgia had no criminal sodomy statute until 1816, but sodomy was a crime at common law, and the General Assembly adopted the common law of England as the law of Georgia in 1784. The First Laws of the State of Georgia, pt. 1, p. 290 (1981).

Maryland had no criminal sodomy statute in 1791. Maryland’s Declaration of Rights, passed in 1776, however, stated that “the inhabitants of Maryland are entitled to the common law of England,” and sodomy was a crime at common law. 4 W. Swindler, Sources and Documents of United States Constitutions 372 (1975).

Massachusetts: Acts and Laws passed by the General Court of Massachusetts, ch. 14, Act of Mar. 3, 1785.

New Hampshire passed its first sodomy statute in 1718. Acts and Laws of New Hampshire 1680-1726, p. 141 (1978).

Sodomy was a crime at common law in New Jersey at the time of the ratification of the Bill of Rights. The State enacted its first criminal sodomy law five years later. Acts of the Twentieth General Assembly, Mar. 18, 1796, ch. DC, § 7.

New York: Laws of New York, ch. 21 (passed 1787).

At the time of ratification of the Bill of Rights, North Carolina had adopted the English statute of Henry VIII outlawing sodomy. See Collection of the Statutes of the Parliament of England in Force in the State of North-Carolina, ch. 17, p. 314 (Martin ed. 1792).

Pennsylvania: Laws of the Fourteenth General Assembly of the Commonwealth of Pennsylvania, ch. CLIV, § 2 (passed 1790).

Rhode Island passed its first sodomy law in 1662. The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 1647-1719, p. 142 (1977).

South Carolina: Public Laws of the State of South Carolina, p. 49 (1790).

At the time of the ratification of the Bill of Rights, Virginia had no specific statute outlawing sodomy, but had adopted the English common law. 9 Hening’s Laws of Virginia, ch. 5, § 6, p. 127 (1821) (passed 1776).

[6] Criminal sodomy statutes in effect in 1868:

Alabama: Ala. Rev. Code § 3604 (1867).

Arizona (Terr.): Howell Code, ch. 10, § 48 (1865).

Arkansas: Ark. Stat., ch. 51, Art. IV, § 5 (1858).

California: 1 Cal. Gen. Laws, ¶ 1450, § 48 (1865).

Colorado (Terr.): Colo. Rev. Stat., ch. 22, §§ 45, 46 (1868).

Connecticut: Conn. Gen. Stat., Tit. 122, ch. 7, § 124 (1866).

Delaware: Del. Rev. Stat., ch. 131, § 7 (1893).

Florida: Fla. Rev. Stat., div. 5, § 2614 (passed 1868) (1892).

Georgia: Ga. Code §§ 4286, 4287, 4290 (1867).

Kingdom of Hawaii: Haw. Penal Code, ch. 13, § 11 (1869).

Illinois: Ill. Rev. Stat., div. 5, §§ 49, 50 (1845).

Kansas (Terr.): Kan. Stat., ch. 53, § 7 (1855).

Kentucky: 1 Ky. Rev. Stat., ch. 28, Art. IV, § 11 (1860).

Louisiana: La. Rev. Stat., Crimes and Offences, § 5 (1856).

Maine: Me. Rev. Stat., Tit. XII, ch. 160, § 4 (1840).

Maryland: 1 Md. Code, Art. 30, § 201 (1860).

Massachusetts: Mass. Gen. Stat., ch. 165, § 18 (1860).

Michigan: Mich. Rev. Stat., Tit. 30, ch. 158, § 16 (1846).

Minnesota: Minn. Stat., ch. 96, § 13 (1859).

Mississippi: Miss. Rev. Code, ch. 64, § LII, Art. 238 (1857).

Missouri: 1 Mo. Rev. Stat., ch. 50, Art. VIII, § 7 (1856).

Montana (Terr.): Mont. Acts, Resolutions, Memorials, Criminal Practice Acts, ch. IV, § 44 (1866).

Nebraska (Terr.): Neb. Rev. Stat., Crim. Code, ch. 4, § 47 (1866).

Nevada (Terr.): Nev. Comp. Laws, 1861-1900, Crimes and Punishments, § 45.

New Hampshire: N. H. Laws, Act. of June 19, 1812, § 5 (1815).

New Jersey: N. J. Rev. Stat., Tit. 8, ch. 1, § 9 (1847).

New York: 3 N. Y. Rev. Stat., pt. 4, ch. 1, Tit. 5, § 20 (5th ed. 1859).

North Carolina: N. C. Rev. Code, ch. 34, § 6 (1855).

Oregon: Laws of Ore., Crimes — Against Morality, etc., ch. 7, § 655 (1874).

Pennsylvania: Act of Mar. 31, 1860, § 32, Pub. L. 392, in 1 Digest of Statute Law of Pa. 1700-1903, p. 1011 (Purdon 1905).

Rhode Island: R. I. Gen. Stat., ch. 232, § 12 (1872).

South Carolina: Act of 1712, in 2 Stat. at Large of S. C. 1682-1716, p. 493 (1837).

Tennessee: Tenn. Code, ch. 8, Art. 1, § 4843 (1858).

Texas: Tex. Rev. Stat., Tit. 10, ch. 5, Art. 342 (1887) (passed 1860).

Vermont: Acts and Laws of the State of Vt. (1779).

Virginia: Va. Code, ch. 149, § 12 (1868).

West Virginia: W. Va. Code, ch. 149, § 12 (1868).

Wisconsin (Terr.): Wis. Stat. § 14, p. 367 (1839).

[7] In 1961, Illinois adopted the American Law Institute’s Model Penal Code, which decriminalized adult, consensual, private, sexual conduct. Criminal Code of 1961, §§ 11-2, 11-3, 1961 Ill. Laws, pp. 1985, 2006 (codified as amended at Ill. Rev. Stat., ch. 38, ¶¶ 11-2, 11-3 (1983) (repealed 1984)). See American Law Institute, Model Penal Code § 213.2 (Proposed Official Draft 1962).

[8] Respondent does not defend the judgment below based on the Ninth Amendment, the Equal Protection Clause, or the Eighth Amendment.

[1] Among those States that continue to make sodomy a crime, Georgia authorizes one of the longest possible sentences. See Ala. Code § 13A-6-65(a)(3) (1982) (1-year maximum); Ariz. Rev. Stat. Ann. §§ 13-1411, 13-1412 (West Supp. 1985) (30 days); Ark. Stat. Ann. § 41-1813 (1977) (1-year maximum); D. C. Code § 22-3502 (1981) (10-year maximum); Fla. Stat. § 800.02 (1985) (60-day maximum); Ga. Code Ann. § 16-6-2 (1984) (1 to 20 years); Idaho Code § 18-6605 (1979) (5-year minimum); Kan. Stat. Ann. § 21-3505 (Supp. 1985) (6-month maximum); Ky. Rev. Stat. § 510.100 (1985) (90 days to 12 months); La. Rev. Stat. Ann. § 14:89 (West 1986) (5-year maximum); Md. Ann. Code, Art. 27, §§ 553-554 (1982) (10-year maximum); Mich. Comp. Laws § 750.158 (1968) (15-year maximum); Minn. Stat. § 609.293 (1984) (1-year maximum); Miss. Code Ann. § 97-29-59 (1973) (10-year maximum); Mo. Rev. Stat. § 566.090 (Supp. 1984) (1-year maximum); Mont. Code Ann. § 45-5-505 (1985) (10-year maximum); Nev. Rev. Stat. § 201.190 (1985) (6-year maximum); N. C. Gen. Stat. § 14-177 (1981) (10-year maximum); Okla. Stat., Tit. 21, § 886 (1981) (10-year maximum); R. I. Gen. Laws § 11-10-1 (1981) (7 to 20 years); S. C. Code § 16-15-120 (1985) (5-year maximum); Tenn. Code Ann. § 39-2-612 (1982) (5 to 15 years); Tex. Penal Code Ann. § 21.06 (1974) ($200 maximum fine); Utah Code Ann. § 76-5-403 (1978) (6-month maximum); Va. Code § 18.2-361 (1982) (5-year maximum).

[2] It was conceded at oral argument that, prior to the complaint against respondent Hardwick, there had been no reported decision involving prosecution for private homosexual sodomy under this statute for several decades. See Thompson v. Aldredge, 187 Ga. 467, 200 S. E. 799 (1939). Moreover, the State has declined to present the criminal charge against Hardwick to a grand jury, and this is a suit for declaratory judgment brought by respondents challenging the validity of the statute. The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct. Some 26 States have repealed similar statutes. But the constitutional validity of the Georgia statute was put in issue by respondents, and for the reasons stated by the Court, I cannot say that conduct condemned for hundreds of years has now become a fundamental right.

[1] Until 1968, Georgia defined sodomy as “the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman.” Ga. Crim. Code § 26-5901 (1933). In Thompson v. Aldredge, 187 Ga. 467, 200 S. E. 799 (1939), the Georgia Supreme Court held that § 26-5901 did not prohibit lesbian activity. And in Riley v. Garrett, 219 Ga. 345, 133 S. E. 2d 367 (1963), the Georgia Supreme Court held that § 26-5901 did not prohibit heterosexual cunnilingus. Georgia passed the act-specific statute currently in force “perhaps in response to the restrictive court decisions such as Riley,” Note, The Crimes Against Nature, 16 J. Pub. L. 159, 167, n. 47 (1967).

[2] In Robinson v. California, 370 U. S. 660 (1962), the Court held that the Eighth Amendment barred convicting a defendant due to his “status” as a narcotics addict, since that condition was “apparently an illness which may be contracted innocently or involuntarily.” Id., at 667. In Powell v. Texas, 392 U. S. 514 (1968), where the Court refused to extend Robinson to punishment of public drunkenness by a chronic alcoholic, one of the factors relied on by JUSTICE MARSHALL, in writing the plurality opinion, was that Texas had not “attempted to regulate appellant’s behavior in the privacy of his own home.” Id., at 532. JUSTICE WHITE wrote separately:

“Analysis of this difficult case is not advanced by preoccupation with the label `condition.’ In Robinson the Court dealt with `a statute which makes the “status” of narcotic addiction a criminal offense . . . .’ 370 U. S., at 666. By precluding criminal conviction for such a `status’ the Court was dealing with a condition brought about by acts remote in time from the application of the criminal sanctions contemplated, a condition which was relatively permanent in duration, and a condition of great magnitude and significance in terms of human behavior and values. . . . If it were necessary to distinguish between `acts’ and `conditions’ for purposes of the Eighth Amendment, I would adhere to the concept of `condition’ implicit in the opinion in Robinson . . . . The proper subject of inquiry is whether volitional acts brought about the `condition’ and whether those acts are sufficiently proximate to the `condition’ for it to be permissible to impose penal sanctions on the `condition.’ ” Id., at 550-551, n. 2.

Despite historical views of homosexuality, it is no longer viewed by mental health professionals as a “disease” or disorder. See Brief for American Psychological Association and American Public Health Association as Amici Curiae 8-11. But, obviously, neither is it simply a matter of deliberate personal election. Homosexual orientation may well form part of the very fiber of an individual’s personality. Consequently, under JUSTICE WHITE’s analysis in Powell, the Eighth Amendment may pose a constitutional barrier to sending an individual to prison for acting on that attraction regardless of the circumstances. An individual’s ability to make constitutionally protected “decisions concerning sexual relations,” Carey v. Population Services International, 431 U. S. 678, 711 (1977) (POWELL, J., concurring in part and concurring in judgment), is rendered empty indeed if he or she is given no real choice but a life without any physical intimacy.

With respect to the Equal Protection Clause’s applicability to § 16-6-2, I note that Georgia’s exclusive stress before this Court on its interest in prosecuting homosexual activity despite the gender-neutral terms of the statute may raise serious questions of discriminatory enforcement, questions that cannot be disposed of before this Court on a motion to dismiss. See Yick Wo v. Hopkins, 118 U. S. 356, 373-374 (1886). The legislature having decided that the sex of the participants is irrelevant to the legality of the acts, I do not see why the State can defend § 16-6-2 on the ground that individuals singled out for prosecution are of the same sex as their partners. Thus, under the circumstances of this case, a claim under the Equal Protection Clause may well be available without having to reach the more controversial question whether homosexuals are a suspect class. See, e. g., Rowland v. Mad River Local School District, 470 U. S. 1009 (1985) (BRENNAN, J., dissenting from denial of certiorari); Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 Harv. L. Rev. 1285 (1985).

[3] Even if a court faced with a challenge to § 16-6-2 were to apply simple rational-basis scrutiny to the statute, Georgia would be required to show an actual connection between the forbidden acts and the ill effects it seeks to prevent. The connection between the acts prohibited by § 16-6-2 and the harms identified by petitioner in his brief before this Court is a subject of hot dispute, hardly amenable to dismissal under Federal Rule of Civil Procedure 12(b)(6). Compare, e. g., Brief for Petitioner 36-37 and Brief for David Robinson, Jr., as Amicus Curiae 23-28, on the one hand, with People v. Onofre, 51 N. Y. 2d 476, 489, 415 N. E. 2d 936, 941 (1980); Brief for the Attorney General of the State of New York, joined by the Attorney General of the State of California, as Amici Curiae 11-14; and Brief for the American Psychological Association and American Public Health Association as Amici Curiae 19-27, on the other.

[4] Although I do not think it necessary to decide today issues that are not even remotely before us, it does seem to me that a court could find simple, analytically sound distinctions between certain private, consensual sexual conduct, on the one hand, and adultery and incest (the only two vaguely specific “sexual crimes” to which the majority points, ante, at 196), on the other. For example, marriage, in addition to its spiritual aspects, is a civil contract that entitles the contracting parties to a variety of governmentally provided benefits. A State might define the contractual commitment necessary to become eligible for these benefits to include a commitment of fidelity and then punish individuals for breaching that contract. Moreover, a State might conclude that adultery is likely to injure third persons, in particular, spouses and children of persons who engage in extramarital affairs. With respect to incest, a court might well agree with respondent that the nature of familial relationships renders true consent to incestuous activity sufficiently problematical that a blanket prohibition of such activity is warranted. See Tr. of Oral Arg. 21-22. Notably, the Court makes no effort to explain why it has chosen to group private, consensual homosexual activity with adultery and incest rather than with private, consensual heterosexual activity by unmarried persons or, indeed, with oral or anal sex within marriage.

[5] The parallel between Loving and this case is almost uncanny. There, too, the State relied on a religious justification for its law. Compare 388 U. S., at 3 (quoting trial court’s statement that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. . . . The fact that he separated the races shows that he did not intend for the races to mix”), with Brief for Petitioner 20-21 (relying on the Old and New Testaments and the writings of St. Thomas Aquinas to show that “traditional Judeo-Christian values proscribe such conduct”). There, too, defenders of the challenged statute relied heavily on the fact that when the Fourteenth Amendment was ratified, most of the States had similar prohibitions. Compare Brief for Appellee in Loving v. Virginia, O. T. 1966, No. 395, pp. 28-29, with ante, at 192-194, and n. 6. There, too, at the time the case came before the Court, many of the States still had criminal statutes concerning the conduct at issue. Compare 388 U. S., at 6, n. 5 (noting that 16 States still outlawed interracial marriage), with ante, at 193-194 (noting that 24 States and the District of Columbia have sodomy statutes). Yet the Court held, not only that the invidious racism of Virginia’s law violated the Equal Protection Clause, see 388 U. S., at 7-12, but also that the law deprived the Lovings of due process by denying them the “freedom of choice to marry” that had “long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Id., at 12.

[6] The theological nature of the origin of Anglo-American antisodomy statutes is patent. It was not until 1533 that sodomy was made a secular offense in England. 25 Hen. VIII, ch. 6. Until that time, the offense was, in Sir James Stephen’s words, “merely ecclesiastical.” 2J. Stephen, A History of the Criminal Law of England 429-430 (1883). Pollock and Maitland similarly observed that ”[t]he crime against nature . . . was so closely connected with heresy that the vulgar had but one name for both.” 2 F. Pollock & F. Maitland, The History of English Law 554 (1895). The transfer of jurisdiction over prosecutions for sodomy to the secular courts seems primarily due to the alteration of ecclesiastical jurisdiction attendant on England’s break with the Roman Catholic Church, rather than to any new understanding of the sovereign’s interest in preventing or punishing the behavior involved. Cf. 6 E. Coke, Institutes, ch. 10 (4th ed. 1797).

[7] At oral argument a suggestion appeared that, while the Fourth Amendment’s special protection of the home might prevent the State from enforcing § 16-6-2 against individuals who engage in consensual sexual activity there, that protection would not make the statute invalid. See Tr. of Oral Arg. 10-11. The suggestion misses the point entirely. If the law is not invalid, then the police can invade the home to enforce it, provided, of course, that they obtain a determination of probable cause from a neutral magistrate. One of the reasons for the Court’s holding in Griswold v. Connecticut, 381 U. S. 479 (1965), was precisely the possibility, and repugnance, of permitting searches to obtain evidence regarding the use of contraceptives. Id., at 485-486. Permitting the kinds of searches that might be necessary to obtain evidence of the sexual activity banned by § 16-6-2 seems no less intrusive, or repugnant. Cf. Winston v. Lee, 470 U. S. 753 (1985); Mary Beth G. v. City of Chicago, 723 F. 2d 1263, 1274 (CA7 1983).

[1] See Ga. Code Ann. § 16-6-2(a) (1984) (“A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another”).

[2] The Court states that the “issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Ante, at 190. In reality, however, it is the indiscriminate prohibition of sodomy, heterosexual as well as homosexual, that has been present “for a very long time.” See nn. 3, 4, and 5, infra. Moreover, the reasoning the Court employs would provide the same support for the statute as it is written as it does for the statute as it is narrowly construed by the Court.

[3] See, e. g., 1 W. Hawkins, Pleas of the Crown 9 (6th ed. 1787) (“All unnatural carnal copulations, whether with man or beast, seem to come under the notion of sodomy, which was felony by the antient common law, and punished, according to some authors, with burning; according to others, with burying alive”); 4 W. Blackstone, Commentaries *215 (discussing “the infamous crime against nature, committed either with man or beast; a crime which ought to be strictly and impartially proved, and then as strictly and impartially punished”).

[4] See 1 E. East, Pleas of the Crown 480 (1803) (“This offence, concerning which the least notice is the best, consists in a carnal knowledge committed against the order of nature by man with man, or in the same unnatural manner with woman, or by man or woman in any manner with beast”); J. Hawley & M. McGregor, The Criminal Law 287 (3d ed. 1899) (“Sodomy is the carnal knowledge against the order of nature by two persons with each other, or of a human being with a beast. . . . The offense may be committed between a man and a woman, or between two male persons, or between a man or a woman and a beast”).

[5] See J. May, The Law of Crimes § 203 (2d ed. 1893) (“Sodomy, otherwise called buggery, bestiality, and the crime against nature, is the unnatural copulation of two persons with each other, or of a human being with a beast. . . . It may be committed by a man with a man, by a man with a beast, or by a woman with a beast, or by a man with a woman — his wife, in which case, if she consent, she is an accomplice”).

[6] The predecessor of the current Georgia statute provided: “Sodomy is the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman.” Ga. Code, Tit. 1, Pt. 4, § 4251 (1861). This prohibition of heterosexual sodomy was not purely hortatory. See, e. g., Comer v. State, 21 Ga. App. 306, 94 S. E. 314 (1917) (affirming prosecution for consensual heterosexual sodomy).

[7] See Thompson v. Aldredge, 187 Ga. 467, 200 S. E. 799 (1939).

[8] A review of the statutes cited by the majority discloses that, in 1791, in 1868, and today, the vast majority of sodomy statutes do not differentiate between homosexual and heterosexual sodomy.

[9] See Loving v. Virginia, 388 U. S. 1 (1967). Interestingly, miscegenation was once treated as a crime similar to sodomy. See Hawley & McGregor, The Criminal Law, at 287 (discussing crime of sodomy); id., at 288 (discussing crime of miscegenation).

[10] Indeed, the Georgia Attorney General concedes that Georgia’s statute would be unconstitutional if applied to a married couple. See Tr. of Oral Arg. 8 (stating that application of the statute to a married couple “would be unconstitutional” because of the “right of marital privacy as identified by the Court in Griswold”). Significantly, Georgia passed the current statute three years after the Court’s decision in Griswold.

[11] Ante, at 198, n. 2 (POWELL, J., concurring). See also Tr. of Oral Arg. 4-5 (argument of Georgia Attorney General) (noting, in response to question about prosecution “where the activity took place in a private residence,” the “last case I can recall was back in the 1930’s or 40’s”).

[12] It is, of course, possible to argue that a statute has a purely symbolic role. Cf. Carey v. Population Services International, 431 U. S. 678, 715, n. 3 (1977) (STEVENS, J., concurring in part and concurring in judgment) (“The fact that the State admittedly has never brought a prosecution under the statute . . . is consistent with appellants’ position that the purpose of the statute is merely symbolic”). Since the Georgia Attorney General does not even defend the statute as written, however, see n. 10, supra, the State cannot possibly rest on the notion that the statute may be defended for its symbolic message.

[13] Indeed, at this stage, it appears that the statute indiscriminately authorizes a policy of selective prosecution that is neither limited to the class of homosexual persons nor embraces all persons in that class, but rather applies to those who may be arbitrarily selected by the prosecutor for reasons that are not revealed either in the record of this case or in the text of the statute. If that is true, although the text of the statute is clear enough, its true meaning may be “so intolerably vague that evenhanded enforcement of the law is a virtual impossibility.” Marks v. United States, 430 U. S. 188, 198 (1977) (STEVENS, J., concurring in part and dissenting in part).

5.2 Lawrence v. Texas 5.2 Lawrence v. Texas

Supreme Court of the United States

539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472, 2003 U.S. LEXIS 5013, SCDB 2002-083

No. 02-102

2003-06-26

LAWRENCE et al. v. TEXAS

No. 02-102.

Argued March 26,2003

Decided June 26, 2003

*561Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed an opinion concurring in the judgment, post, p. 579. Scalja, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 586. Thomas, J., filed a dissenting opinion, post, p. 605.

Paul M. Smith argued the cause for petitioners. With him on the briefs were William M. Hohengarten, Daniel Mach, Mitchell Ratine, Ruth E. Harlow, Patricia M. Logue, and Susan L. Sommer.

Charles A. Rosenthal, Jr., argued the cause for respondent. With him on the brief were William J. Delmore III and Scott A. Durfee.*

Briefs of amici curiae urging reversal were filed for the Alliance of Baptists et al. by Robert A Long, Jr., and Thomas L. Cubbage III; for the American Psychological Association et al. by David W. Ogden, Paul R. Q. Wolfson, Richard G. Taranto, Nathalie F. P. Gilfoyle, and Carolyn I. Po-lowy; for the American Public Health Association et al. by Jeffrey S. Trachtman and Norman C. Simon; for the Cato Institute by Robert A Levy; for Constitutional Law Professors by Pamela S. Karlan and William B. Rubenstein; for the Human Rights Campaign et al. by Walter Dellinger, Pamela Harris, and Jonathan D. Hacker; for the Log Cabin Republicans et al. by C. Martin Meekins; for the NOW Legal Defense and Education Fund by David C. Codell, Laura W. Brill, and Wendy R. Weiser; for Professors of History by Roy T Englert, Jr., Alan Untereiner, and Sherri Lynn Wolson; for the Republican Unity Coalition et al. by Erik S. Jaffe; and for Mary Robinson et al. by Harold Hongju Koh and Joseph F. Tringali.

Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A Forrester, Solicitor General, and George M. Weaver, and by the Attorneys General for their respective States as follows: Henry D. Mc-Master of South Carolina and Mark L. Shurtleff of Utah; for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, and Walter M. Weber; for the American Family Association, Inc., et al. by Stephen M. Crampton, Brian Fah-ling, and Michael J. DePrimo; for the Center for Arizona Policy et al. by Len L. Munsil; for the Center for Law and Justice International by Thomas Patrick Monaghan and John P. Tuskey; for the Center for Marriage Law by Vincent P. McCarthy and Lynn D. Wardle; for the Center *562for the Original Intent of the Constitution by Michael P. Farris and Jordan W. Lorence; for Concerned Women for America by Janet M. LaRue; for the Family Research Council, Inc., by Robert P George; for First Principles, Inc., by Ronald D. Ray; for Liberty Counsel by Mathew D. Staver and Rena M. Lindevaldsen; for the Pro Family Law Center et al. by Richard D. Ackerman and Gary G. Kreep; for Public Advocate of the United States et al. by Herbert W. Titus and William J. Olson; for the Texas Eagle Forum et al. by Teresa Stanton Collett; for Texas Legislator Warren Chisum et al. by Kelly Shackelford and Scott Roberts; for the Texas Physicians Resource Council et al. by Glen Lavy; and for United Families International by Paul Benjamin Linton.

Briefs of amici curiae were filed for the American Bar Association by Alfred P. Carlton, Jr., Ruth N. Borenstein, and Beth S. Brinkmann; for the American Civil Liberties Union et al. by Laurence H. Tribe, James D. Esseks, Steven R. Shapiro, and Matthew A. Coles; for the Institute for Justice by William H. Mellor, Clint Bolick, Dana Berliner, and Randy E. Barnett; and for the National Lesbian and Gay Law Association et al. by Chai R. Feldblum, J. Paul Oetken, and Scott Ruskay-Kidd.

*562Justice Kennedy

delivered the opinion of the Court.

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.

The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, *563resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace.

The complaints described their crime as “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” The statute defines “[d]eviate sexual intercourse” as follows:

“(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or

“(B) the penetration of the genitals or the anus of another person with an object.” §21.01(1).

The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, § 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a.

The Court of Appeals for the Texas Fourteenth District considered the petitioners’ federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S. W. 3d 349 (2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper.

*564We granted certiorari, 537 U. S. 1044 (2002), to consider three questions:

1. Whether petitioners’ criminal convictions under the Texas “Homosexual Conduct” law — which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples — violate the Fourteenth Amendment guarantee of equal protection of the laws.

2. Whether petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.

3. Whether Bowers v. Hardwick, supra, should be overruled? See Pet. for Cert. i.

The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.

We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court’s holding in Bowers.

There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965).

In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and *565placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485.

After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own:

“It is true that in Griswold the right of privacy in question inhered in the marital relationship. ... If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id., at 453.

The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade, 410 U. S. 113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman’s rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.

*566In Carey v. Population Services Int’l, 431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick.

The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Black-mun, J., joined by Brennan, Marshall, and Stevens, JJ.); id., at 214 (opinion of Stevens, J., joined by Brennan and Marshall, JJ.).

The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so *567for a very long time.” Id., at 190. That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or riot entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: “Proscriptions against that conduct have ancient roots.” Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opin*568ions in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.

At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e. g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting “mankind” in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e. g., 2 J. Bishop, Criminal Law § 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes §203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e. g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D’Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) (“The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions”). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonproereative sexual activity more generally. This does not suggest approval of *569homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.

Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between- adults involving force, relations between adults implicating disparity in status, or relations between men and animals.

To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner’s testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e. g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic *570punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.

The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosécutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing “ancient roots,” Bowers, 478 U. S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18.

It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats, p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post -Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e. g., Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, *571842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats, p. 518 (repealing Nev. Rev. Stat. §201.193).

In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.

It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).

Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: “Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards.” 478 U. S., at 196. As with Justice White’s assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e. g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L. Rev. 631,656. In all events we think that our laws and traditions in the past half century are of *572most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring).

This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for “criminal penalties for consensual sexual relations conducted in private.” ALI, Model Penal Code §213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15-16.

In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court’s decision 24 States and the District of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 (“The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct”).

The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws *573punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, § 1.

Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943.

Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed *574that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.

The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s Constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was “born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose. Id., at 634.

As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we con-*575elude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.

Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U. S. 84 (2003); Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of at least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho Code §§18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann. §§15:540-15:549 *576(West 2003); Miss. Code Ann. §§45-33-21 to 45-33-57 (Lexis 2003); S. C. Code Ann. §§23-3-400 to 23-3-490 (West 2002)). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example.

The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e. g., C. Fried, Order and Law: Arguing the Reagan Revolution — A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992).

To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ 56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary *577Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828 (1991) (“Stare decisis is not an inexorable command; rather, it ‘is a principle of policy and not a mechanical formula of adherence to the latest decision’ ” (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In Casey we noted that when a court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U. S., at 855-856; see also id., at 844 (“Liberty finds no refuge in a jurisprudence of doubt”). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding.

The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:

“Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from consti*578tutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 478 U. S., at 216 (footnotes and citations omitted).

Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume *579to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice O’Connor,

concurring in the judgment.

The Court today overrules Bowers v. Hardwick, 478 U. S. 186 (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas’ statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. § 21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment’s Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment’s Equal Protection Clause.

The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1986); see also Plyler v. Doe, 457 U. S. 202, 216 (1982). Under our rational basis standard of review, “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973); Romer v. Evans, 517 U. S. 620, 632-633 (1996); Nordlinger v. Hahn, 505 U. S. 1, 11-12 (1992).

Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since “the Constitution presumes that even improvident decisions will eventually be rectified by the *580democratic processes.” Cleburne v. Cleburne Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. 103; Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). We have consistently held, however, that some objectives, such as “a bare ... desire to harm a politically unpopular group,” are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to “ ‘discriminate against hippies.’ ” 413 U. S., at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id., at 535-538. In Eisenstadt v. Baird, 405 U. S. 438, 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences — like fraternity houses and apartment buildings — did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that “im-pos[ed] a broad and undifferentiated disability on a single named group” — specifically, homosexuals. 517 U. S., at 632.

*581The statute at issue here makes sodomy a crime only if a person “engages in deviate sexual intercourse with another individual of the same sex.” Tex. Penal Code Ann. § 21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by § 21.06.

The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct — and only that conduct — subject to criminal sanction. It appears that prosecutions under Texas’ sodomy law are rare. See State v. Morales, 869 S. W. 2d 941, 943 (Tex. 1994) (noting in 1994 that § 21.06 “has not been, and in all probability will not be, enforced against private consensual conduct between adults”). This case shows, however, that prosecutions under §21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. It appears that petitioners’ convictions, if upheld, would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design. See, e.g., Tex. Occ. Code Ann. § 164.051(a)(2)(B) (2003 Pamphlet) (physician); § 451.251(a)(1) (athletic trainer); § 1053.252(2) (interior designer). Indeed, were petitioners to move to one of four States, their convictions would require them to register as sex offenders to local law enforcement. See, e.g., Idaho Code §18-8304 (Cum. Supp. 2002); La. Stat. Ann. § 15:542 (West Cum. Supp. 2003); Miss. Code Ann. §45-33-25 (West 2003); S. C. Code Ann. § 23-3-430 (West Cum. Supp. 2002); cf. ante, at 575-576.

And the effect of Texas’ sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas’ sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas *582itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law “legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law,” including in the areas of “employment, family issues, and housing.” State v. Morales, 826 S. W. 2d 201, 203 (Tex. App. 1992).

Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the law, pointing to the government’s interest in promoting morality. 478 U. S., at 196. The only question in front of the Court in Bowers was whether the substantive component of the Due Process Clause protected a right to engage in homosexual sodomy. Id., at 188, n. 2. Bowers did not hold that moral disapproval of a group is a rational basis under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is not punished.

This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e. g., Department of Agriculture v. Moreno, 413 U. S., at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.

*583Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be “drawn for the purpose of disadvantaging the group burdened by the law.” Id., at 633. Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating “a classification of persons undertaken for its own sake.” Id., at 635. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law “raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id., at 634.

Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. “After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.” Id., at 641 (SCALIA, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not “deviate sexual intercourse” committed by persons of different sexes, “that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 575.

Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se because the word “ho*584mosexual” “impute[s] the commission of a crime.” Plumley v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton, 596 S. W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State v. Morales, 826 S. W. 2d, at 202-203 (“[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law”)- Texas’ sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See ibid. In Romer v. Evans, we refused to sanction a law that singled out homosexuals “for disfavored legal status.” 517 U. S., at 633. The same is true here. The Equal Protection Clause “‘neither knows nor tolerates classes among citizens.’” Id., at 623 (quoting Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting)).

A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to “a lifelong penalty and stigma. A legislative classification that threatens the creation of an. underclass ... cannot be reconciled with” the Equal Protection Clause. Plyler v. Doe, 457 U. S., at 239 (Powell, J., concurring).

Whether a sodomy law that is neutral both in effect and application, see Yick Wo v. Hopkins, 118 U. S. 356 (1886), would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a *585law would not long stand in our democratic society. In the words of Justice Jackson:

“The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.” Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949) (concurring opinion).

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations — the asserted state interest in this case— other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.

A law branding one class of persons as criminal based solely on the State’s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court’s judgment that Texas’ sodomy law banning “deviate sexual intercourse” between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional.

*586Justice Scalia,

with whom The Chief Justice and Justice Thomas join, dissenting.

“Liberty finds no refuge in a jurisprudence of doubt.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That was the Court’s sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court’s response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier.

Most of the rest of today’s opinion has no relevance to its actual holding — that the Texas statute “furthers no legitimate state interest which can justify” its application to petitioners under rational-basis review. Ante, at 578 (overruling Bowers to the extent it sustained Georgia’s antisodomy statute under the rational-basis test). Though there is discussion of “fundamental proposition[s],” ante, at 565, and “fundamental decisions,” ibid., nowhere does the Court’s opinion declare that homosexual sodomy is a “fundamental right” under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a “fundamental right.” Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: “[Respondent would have us announce ... a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.” 478 U. S., at 191. Instead the Court simply describes petitioners’ conduct as “an exercise of their liberty” — which it undoubtedly is — and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 564.

I begin with the Court’s surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hard-*587wick. I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today’s opinions in support of reversal do not bother to distinguish — or indeed, even bother to mention— the paean to stare decisis coauthored by three Members of today’s majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:

“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] . . . its decision has a dimension that the resolution of the normal case does not carry. ... [T]o overrule under fire in the absence of the most compelling reason .. . would subvert the Court’s legitimacy beyond any serious question.” 505 U. S., at 866-867.

Today, however, the widespread opposition to Bowers, a decision resolving an issue as “intensely divisive” as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 576-577. Gone, too, is any “enquiry” (of the sort conducted in Casey) into whether the decision sought to be overruled has “proven ‘unworkable,’” Casey, supra, at 855.

Today’s approach to stare decisis invites us to overrule an erroneously decided precedent (including an “intensely divisive” decision) if: (1) its foundations have been “ero[ded]” by subsequent decisions, ante, at 576; (2) it has been subject to “substantial and continuing” criticism, ibid.; and (3) it has not induced “individual or societal reliance” that counsels against overturning, ante, at 577. The problem is that Roe itself — which today’s majority surely has no disposition to overrule — satisfies these conditions to at least the same degree as Bowers.

*588(1) A preliminary digressive observation with regard to the first factor: The Court’s claim that Planned Parenthood v. Casey, supra, “casts some doubt” upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. Ante, at 571. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 574 (“ At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery. of human life’ ”): That “casts some doubt” upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one’s “right to define” certain concepts; and if the passage calls into question the government’s power to regulate actions based on one’s self-defined “concept of existence, etc.,” it is the passage that ate the rule of law.

I do not quarrel with the Court’s claim that Romer v. Evans, 517 U. S. 620 (1996), “eroded” the “foundations” of Bowers’ rational-basis holding. See Romer, supra, at 640-643 (Scalia, J., dissenting). But Roe and Casey have been equally “eroded” by Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which held that only fundamental rights which are “‘deeply rooted in this Nation’s history and tradition’” qualify for anything other than rational-basis scrutiny under the doctrine of “substantive due process.” Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation’s tradition.

(2) Bowers, the Court says, has been subject to “substantial and continuing [criticism], disapproving of its reasoning in all respects, not just as to its historical assumptions.” Ante, at 576. Exactly what those nonhistorical criticisms are, and whether the Court even agrees with them, are left *589unsaid, although the Court does cite two books. See ibid. (citing C. Fried, Order and Law: Arguing the Reagan Revolution — A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992)).1 Of course, Roe too (and by extension Casey) had been (and still is) subject to unrelenting criticism, including criticism from the two commentators cited by the Court today. See Fried, supra, at 75 (“Roe was a prime example of twisted judging”); Posner, supra, at 337 (“[The Court’s] opinion in Roe . . . fails to measure up to professional expectations regarding judicial opinions”); Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995) (describing the opinion in Roe as an “embarrassing performance]”).

(3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. “[T]here has been,” the Court says, “no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding . . . .” Ante, at 577. It seems to me that the “societal reliance” on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation. See, e. g., Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama’s prohibition on the sale of sex toys on the ground that “[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny”); Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that “[legislatures are permitted to legislate with regard to morality ... rather than confined *590to preventing demonstrable harms”); Holmes v. California Army National Guard, 124 F. 3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that “a person has no constitutional right to engage in sexual intercourse, at least outside of marriage”); Sherman v. Henry, 928 S. W. 2d 464, 469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991), that Indiana’s public indecency statute furthered “a substantial government interest in protecting order and morality,” ibid. (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 572 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” 478 U. S., at 196.2

*591What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of, and restrictions upon, abortion were determined legislatively State by State. Casey, however, chose to base its stare decisis determination on a different “sort” of reliance. “[P]eople,” it said, “have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” 505 U. S., at 856. This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted *592the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State.

To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey’s extraordinary deference to precedent for the result-oriented expedient that it is.

Having decided that it need not adhere to stare decisis, the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.

Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to “liberty” under the Due Process Clause, though today’s opinion repeatedly makes that claim. Ante, at 567 (“The liberty protected by the Constitution allows homosexual persons the right to make this choice”); ante, at "574 (“ ‘These matters ... are central to the liberty protected by the Fourteenth Amendment’ ”); ante, at 578 (“Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government”). The Fourteenth Amendment expressly allows States to deprive their citizens of “liberty,” so long as “due process of law” is provided:

“No state shall... deprive any person of life, liberty, or property, without due process of law” Amdt. 14 (emphasis added).

*593Our opinions applying the doctrine known as “substantive due process” hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called “heightened scrutiny” protection — that is, rights which are “ ‘deeply rooted in this Nation’s history and tradition,’” ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be “so rooted in the traditions and conscience of our people as to be ranked as fundamental” (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) (“[W]e have insisted not merely that the interest denominated as a ‘liberty’ be ‘fundamental’ . . . but also that it be an interest traditionally protected by our society”); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects “those privileges long recognized. at common law as essential to the orderly pursuit of happiness by free men” (emphasis added)).3 All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest.

*594Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a “fundamental right” under the Due Process Clause, 478 U. S., at 191-194. Noting that “[proscriptions against that conduct have ancient roots,” id., at 192, that “[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights,” ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homosexual sodomy was not “ ‘deeply rooted in this Nation’s history and tradition,’ ” id., at 192.

The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a “fundamental right” or a “fundamental liberty interest,” nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is “ ‘deeply rooted in this Nation’s history and tradition,’ ” the Court concludes that the application of Texas’s statute to petitioners’ conduct fails the rational-basis test, and overrules Bowers’ holding to the contrary, see id., at 196. “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Ante, at 578.

I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers’ conclusion that homosexual sodomy is not a “fundamental right” — even though, as I have said, the Court does not have the boldness to reverse that conclusion.

III

The Court’s description of “the state of the law” at the time of Bowers only confirms that Bowers was right. Ante, at 566. The Court points to Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965). But that case expressly disclaimed any reliance on the doctrine of “substantive due *595process,” and grounded the so-called “right to privacy” in penumbras of constitutional provisions other than the Due Process Clause. Eisenstadt v. Baird, 405 U. S. 438 (1972), likewise had nothing to do with “substantive due process”; it invalidated a Massachusetts law prohibiting the distribution of contraceptives to unmarried persons solely on the basis of the Equal Protection Clause. Of course Eisenstadt contains well-known dictum relating to the “right to privacy,” but this referred to the right recognized in Gris-wold — a right penumbral to the specific guarantees in the Bill of Rights, and not a “substantive due process” right.

Roe v. Wade recognized that the right to abort an unborn child was a “fundamental right” protected by the Due Process Clause. 410 U. S., at 155. The Roe Court, however, made no attempt to establish that this right was “‘deeply rooted in this Nation’s history and tradition’”; instead, it based its conclusion that “the Fourteenth Amendment’s concept of personal liberty ... is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” on its own normative judgment that antiabortion laws were undesirable. See id., at 153. We have since rejected Roe’s holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, see Planned Parenthood v. Casey, 505 U. S., at 876 (joint opinion of O’Connor, Kennedy, and Souter, JJ.); id., at 951-953 (Rehnquist, C. J., concurring in judgment in part and dissenting in part) — and thus, by logical implication, Roe’s holding that the right to abort an unborn child is a “fundamental right.” See 505 U. S., at 843-912 (joint opinion of O’Connor, Kennedy, and Souter, JJ.) (not once describing abortion as a “fundamental right” or a “fundamental liberty interest”).

After discussing the history of antisodomy laws, ante, at 568-571, the Court proclaims that, “it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter,” ante, *596at 568. This observation in no way casts into doubt the “definitive [historical] eonclusio[n],” ibid., on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general — regardless of whether it was performed by same-sex or opposite-sex couples:

“It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” 478 U. S., at 192-194 (citations and footnotes omitted; emphasis added).

It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were “directed at homosexual conduct as a distinct matter.” Ante, at 568. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized — which suffices to establish that homosexual sodomy is not a right “deeply rooted in our Nation’s history and tradition.” The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied.

*597Next the Court makes the claim, again unsupported by any citations, that “[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private.” Ante, at 569. The key qualifier here is “acting in private” — since the Court admits that sodomy laws were enforced against consenting adults (although the Court contends that prosecutions were “infrequen[t],” ibid.). I do not know what “acting in private” means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage. If all the Court means by “acting in private” is “on private premises, with the doors closed and windows covered,” it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.) Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a “fundamental right,” even though all other consensual sodomy was criminalized. There are 203 prosecutions for consensual, adult homosexual sodomy reported in the West Reporting system and official state reporters from the years 1880-1995. See W. Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999) (hereinafter Gaylaw). There are also records of 20 sodomy prosecutions and 4 executions during the colonial period. J. Katz, Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers’ conclusion that homosexual sodomy is not a fundamental right “deeply rooted in this Nation’s history and tradition” is utterly unassailable.

Realizing that fact, the Court instead says: “[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” Ante, at 571-572 (emphasis *598added). Apart from the fact that such an “emerging awareness” does not establish a “fundamental right,” the statement is factually false. States continue to prosecute all sorts of crimes by adults “in matters pertaining to sex”: prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced “in the past half century,” in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. Gaylaw 375. In relying, for evidence of an “emerging recognition,” upon the American Law Institute’s 1955 recommendation not to criminalize “ ‘consensual sexual relations conducted in private,’ ” ante, at 572, the Court ignores the fact that this recommendation was “a point of resistance in most of the states that considered adopting the Model Penal Code.” Gaylaw 159.

In any event, an “emerging awareness” is by definition not “deeply rooted in this Nation’s history and tradition[s],” as we have said “fundamental right” status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on “values we share with a wider civilization,” ante, at 576, but rather rejected the claimed right to sodomy on the ground that such a right was not “ ‘deeply rooted in this Nation's history and tradition,’” 478 U.S., at 193-194 (emphasis added). Bowers’ rational-basis holding is likewise devoid of any reliance on the views of a “wider civilization,” see id., at 196. The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court . . . should not impose foreign moods, fads, or fashions on Americans.” Foster v. Florida, 537 U. S. 990, n. (2002) (Thomas, J., concurring in denial of certiorari).

*599IV

I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence — indeed, with the jurisprudence of any society we know — that it requires little discussion.

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196 — the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 578 (emphasis added). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,’ ” ante, at 577. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

Finally, I turn to petitioners’ equal-protection challenge, which no Member of the Court save Justice O’Connor, ante, at 579 (opinion concurring in judgment), embraces: On its face § 21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, § 21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual *600acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.

The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U. S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was “designed to maintain White Supremacy.” Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis, 426 U. S. 229, 241-242 (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers — society’s belief that certain forms of sexual behavior are “immoral and unacceptable,” 478 U. S., at 196. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner — for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.

Justice O’Connor argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.

“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than con*601duct. It is instead directed toward gay persons as a class.” Ante, at 583.

Of course the same could be said of any law. A law against public nudity targets “the conduct that is closely correlated with being a nudist,” and hence “is targeted at more than conduct”; it is “directed toward nudists as a class.” But be that as it may. Even if the Texas law does deny equal protection to “homosexuals as a class,” that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.

Justice O’Connor simply decrees application of “a more searching form of rational basis review” to the Texas statute. Ante, at 580. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See Romer v. Evans, 517 U. S., at 635; Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448-450 (1985); Department of Agriculture v. Moreno, 413 U. S. 528, 534-538 (1973). Nor does Justice O’Connor explain precisely what her “more searching form” of rational-basis review consists of. It must at least mean, however, that laws exhibiting “a desire to harm a politically unpopular group,” ante, at 580, are invalid even though there may be a conceivable rational basis to support them.

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Con-nor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 585. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in § 21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor *602has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

* * *

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from . its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 575. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that *603culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly béen rejected by Congress, see Employment NonDiscrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” is mandated by federal statute, see 10 U. S. C. § 654(b)(1) (mandating discharge from the Armed Forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale, 530 U. S. 640 (2000).

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts — or, for that matter, display any moral disapprobation of them — than I would forbid it to do so. What Texas has chosen to do is well within , the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 579; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made *604by the people, and not imposed by a governing caste that knows best.

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts — and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as. has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion — after having laid waste the foundations of our rational-basis jurisprudence — the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 578. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[pjersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 574 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 578; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen *605sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 567; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid,.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

The matters appropriate for this Court’s resolution are only three: Texas’s prohibition of sodomy neither infringes a “fundamental right” (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.

While the Court does not overrule Bowers’ holding that homosexual sodomy is not a “fundamental right,” it is worth noting that the “societal reliance” upon that aspect of the decision has been substantial as well. *591See 10 U. S. C. § 654(b)(1) (“A member of the armed forces shall be separated from the armed forces . .. if.. . the member has engaged in ... a homosexual act or acts”); Marcum v. McWhorter, 308 F. 3d 635, 640-642 (CA6 2002) (relying on Bowers in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon, 57 F. 3d 789, 793-794 (CA9 1995) (relying on Bowers in rejecting a grandparent’s claimed “fundamental liberty interesft]” in the adoption of her grandchildren); Doe v. Wigginton, 21 F. 3d 733, 739-740 (CA6 1994) (relying on Bowers in rejecting a prisoner’s claimed “fundamental right” to on-demand HIV testing); Schowengerdt v. United States, 944 F. 2d 483, 490 (CA9 1991) (relying on Bowers in upholding a bisexual’s discharge from the armed services); Charles v. Baesler, 910 F. 2d 1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department captain’s claimed “fundamental” interest in a promotion); Henne v. Wright, 904 F. 2d 1208, 1214-1215 (CA8 1990) (relying on Bowers in rejecting a claim that state law restricting surnames that could be given to children at birth implicates a “fundamental right”); Walls v. Petersburg, 895 F. 2d 188, 193 (CA4 1990) (relying on Bowers in rejecting substantive-due-process challenge to a police department questionnaire that asked prospective employees about homosexual activity); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F. 2d 563, 570-571 (CA9 1988) (relying on Bowers' holding that homosexual activity is not a fundamental right in rejecting — on the basis of the rational-basis standard — an equal-protection challenge to the Defense Department’s policy of conducting expanded investigations into backgrounds of gay and lesbian applicants for secret and top-secret security clearances).

The Court is quite right that ‘“[hjistory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry,’ ” ante, at 572. An asserted “fundamental liberty interest” must not only be “ ‘deeply rooted in this Nation’s history and tradition,’ ” Washington v. Glucksberg, 521 U. S. 702, 721 (1997), but it must also be “ ‘implicit in the concept of ordered liberty,’ ” so that “‘neither liberty nor justice would exist if [it] were sacrificed,’ ” ibid. Moreover, liberty interests unsupported by history and tradition, though not deserving of “heightened scrutiny,” are still protected from state laws that are not rationally related to any legitimate state interest. Id., at 722. As I proceed to discuss, it is this latter principle that the Court applies in the present case.

Justice Thomas,

dissenting.

I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is . . . uncommonly silly.” Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a Member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the *606Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 562.

5.3 Regina v. Brown [1993] 2 All ER 75 5.3 Regina v. Brown [1993] 2 All ER 75

R v Brown [1993] 2 All ER 75

HOUSE OF LORDS
LORD TEMPLEMAN, LORD JAUNCEY OF TULLICHETTLE, LORD LOWRY, LORD MUSTILL AND LORD SLYNN OF HADLEY
1, 2, 3, 7 DECEMBER 1992, 11 MARCH 1993

The appellants belonged to a group of sado-masochistic homosexuals who over a 10-year period from 1978 willingly participated in the commission of acts of violence against each other, including genital torture, for the sexual pleasure which it engendered in the giving and receiving of pain. The passive partner or victim in each case consented to the acts being committed and suffered no permanent injury. The activities took place in private at a number of different locations, including rooms equipped as torture chambers at the homes of three of the appellants. Video cameras were used to record the activities and the resulting tapes were then copied and distributed amongst members of the group. The tapes were not sold or used other than for the delectation of members of the group. The appellants were tried on charges of assault occasioning actual bodily harm, contrary to s 47 of the Offences against the Person Act 1861, and unlawful wounding, contrary to s 20 of that Act. The Crown’s case was based very largely on the contents of the video tapes. Following a ruling by the trial judge that the consent of the victim afforded no defence to the charges, the appellants pleaded guilty and were sentenced to terms of imprisonment. The appellants appealed against their convictions, contending that a person could not guilty be of assault occasioning actual bodily harm or unlawful wounding in respect of acts carried out in private with the consent of the victim. The Court of Appeal dismissed their appeals. The appellants appealed to the House of Lords.

Held (Lord Mustill and Lord Slynn dissenting) – Consensual sado-masochistic homosexual encounters which occasioned actual bodily harm to the victim were assaults occasioning actual bodily harm, contrary to s 47 of the 1861 Act, and unlawful wounding, contrary to s 20 of that Act, notwithstanding the victim’s consent to the acts inflicted on him, because public policy required that society be protected by criminal sanctions against a cult of violence which contained the danger of the proselytisation and corruption of young men and the potential for the infliction of serious injury. Accordingly, a person could be convicted of unlawful wounding and assault occasioning actual bodily harm, contrary to ss 20 and 47 of the 1861 Act, for committing sado-masochistic acts which inflicted injuries which were neither transient nor trifling, notwithstanding that the acts were committed in private, the person on whom the injuries were inflicted consented to the acts and no permanent injury was sustained by the victim. It followed that the appellants had been properly convicted and that their appeals would be dismissed (see p 83 h j, p 84 g, p 90 h j, p 91 b c g to j, p 92 a to c, p 93 b c, p 94 d e, p 100 b to h and p 101 c, post).

Dictum of Cave J in R v Coney (1882) 8 QBD 534 at 539, R v Donovan [1934] All ER Rep 207 and A-G’s Reference (No 6 of 1980) [1981] 2 All ER 1057 applied.

Decision of the Court of Appeal [1992] 2 All ER 552 affirmed.

Conjoined appeals
Anthony Joseph Brown, Colin Laskey, Roland Leonard Jaggard, Saxon Lucas and Christopher Robert Carter appealed with the leave of the Court of Appeal, Criminal Division against the decision of that court (Lord Lane CJ, Rose and Potts JJ) ([1992] 2 All ER 552, [1992] QB 491, 94 Cr App R 302) on 7 November 1990 dismissing their appeals against their convictions and sentences on 19 December 1990 in the Central Criminal Court before Judge Rant QC on counts of unlawful wounding, assault occasioning actual bodily harm and aiding and abetting the same contrary to ss 20 and 47 of the Offences against the Person Act 1861, the appellants having pleaded guilty to the charges following rearraignment as a result of a ruling by the judge on 2 November 1990. The Court of Appeal certified, under s 33(2) of the Criminal Appeal Act 1968, that a point of law of general public importance (set out at letter h, below) was involved in the decision to dismiss the appeals. The appeals were conjoined by order of the House of Lords dated 9 November 1992. The facts are set out in the opinion of Lord Templeman.

Lawrence Kershen QC, Eleanor Sharpston and Pauline Hendy (instructed by Geffens, Walsall) for the appellant Brown. Baroness Mallalieu QC, Adrian Fulford and Eleanor Sharpston (instructed by J P Malnick & Co) for the appellants Lucas and Jaggard. Anna Worrall QC, Gibson Grenfell and Eleanor Sharpston (instructed by J P Malnick & Co) for the appellant Laskey. Ronald Thwaites QC, Jonathan Lurie and Eleanor Sharpston (instructed by Shakespeares, Birmingham) for the appellant Carter. Nicholas Purnell QC and David Spens (instructed by the Crown Prosecution Service) for the Crown.

Their Lordships took time for consideration.

11 March 1993. The following opinions were delivered.

LORD TEMPLEMAN. My Lords, the appellants were convicted of assaults occasioning actual bodily harm contrary to s 47 of the Offences against the Person Act 1861. Three of the appellants were also convicted of wounding contrary to s 20 of the 1861 Act. The incidents which led to each conviction occurred in the course of consensual sado-masochistic homosexual encounters. The Court of Appeal upheld the convictions and certified the following point of law of general public importance:

‘Where A wounds or assaults B occasioning him actual bodily harm in the course of a sadomasochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A’s guilt under section 20 and section 47 of the 1861, Offences Against the Person Act?’

The definition of assault set forth in the 14th Report of the Criminal Law Revision Committee on Offences against the Person (Cmnd 7844 (1980)) para 158 and adopted by the Law Commission in their Consultation Paper No 122, Legislating the Criminal Code: Offences against the Person and General Principles (1992) para 9.1 is as follows:

‘At common law, an assault is an act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence and a battery is an act by which a person intentionally or recklessly inflicts personal violence upon another. However, the term “assault” is now, in both ordinary legal usage and in statutes, regularly used to cover both assault and battery.’

There are now three types of assault in ascending order of gravity: first, common assault, secondly, assault which occasions actual bodily harm and, thirdly, assault which inflicts grievous bodily harm. By s 39 of the Criminal Justice Act 1988:

‘Common assault and battery shall be summary offences and a person guilty of either of them shall be liable to a fine … to imprisonment for a term not exceeding six months, or to both.’

By s 47 of the 1861 Act, as amended:

‘Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable [to a maximum penalty of five years’ imprisonment].’

In R v Donovan [1934] 2 KB 498 at 509, [1934] All ER Rep 207 at 212 Swift J, delivering the judgment of the Court of Criminal Appeal, said:

‘… “bodily harm” has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.’

In the present case each appellant pleaded guilty to an offence under this section when the trial judge ruled that consent of the victim was no defence.

By s 20 of the 1861 Act, as amended:

‘Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of [an offence] … and shall be liable [to a maximum penalty of five years’ imprisonment].’

To constitute a wound for the purposes of the section the whole skin must be broken and not merely the outer layer called the epidermis or the cuticle: see J J C (a minor) v Eisenhower [1983] 3 All ER 230.

‘Grievous bodily harm’ means simply bodily harm that is really serious and it has been said that it is undesirable to attempt a further definition: see DPP v Smith [1960] 3 All ER 161, [1961] AC 290.

In s 20 the words ‘unlawfully’ means that the accused had no lawful excuse such as self-defence. The word ‘maliciously’ means no more than intentionally for present purposes: see R v Mowatt [1967] 3 All ER 47, [1968] 1 QB 421.

Three of the appellants pleaded guilty to charges under s 20 when the trial judge ruled that the consent of the victim afforded no defence.

In the present case each of the appellants intentionally inflicted violence upon another (to whom I shall refer as ‘the victim’) with the consent of the victim and thereby occasioned actual bodily harm or in some cases wounding or grievous bodily harm. Each appellant was therefore guilty of an offence under s 47 or s 20 of the 1861 Act unless the consent of the victim was effective to prevent the commission of the offence or effective to constitute a defence to the charge.

In some circumstances violence is not punishable under the criminal law. When no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating. Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities.

In earlier days some other forms of violence were lawful and when they ceased to be lawful they were tolerated until well into the nineteenth century. Duelling and fighting were at first lawful and then tolerated provided the protagonists were voluntary participants. But, where the results of these activities was the maiming of one of the participants, the defence of consent never availed the aggressor: see 1 Hawkins’ Pleas of the Crown (8th edn, 1824) ch 15. A maim was bodily harm whereby a man was deprived of the use of any member of his body which he needed to use in order to fight but a bodily injury was not a maim merely because it was a disfigurement. The act of maim was unlawful because the King was deprived of the services of an able-bodied citizen for the defence of the realm. Violence which maimed was unlawful despite consent to the activity which produced the maiming. In these days there is no difference between maiming on the one hand and wounding or causing grievous bodily harm on the other hand except with regard to sentence.

When duelling became unlawful, juries remained unwilling to convict but the judges insisted that persons guilty of causing death or bodily injury should be convicted despite the consent of the victim.

Similarly, in the old days, fighting was lawful provided the protagonists consented because it was thought that fighting inculcated bravery and skill and physical fitness. The brutality of knuckle fighting however caused the courts to declare that such fights were unlawful even if the protagonists consented. Rightly or wrongly the courts accepted that boxing is a lawful activity.

In R v Coney (1882) 8 QBD 534 the court held that a prize-fight in public was unlawful. Cave J said (at 539):

‘The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault, and that an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial.’

Stephen J said (at 549):

‘When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults … In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances.’

Hawkins J said (at 553):

‘… whatever may be the effect of a consent in a suit between party and party, it is not in the power of any man to give an effectual consent to that which amounts to, or has a direct tendency to create, a breach of the peace; so as to bar a criminal prosecution. In other words, though a man may by consent debar himself from his right to maintain a civil action, he cannot thereby defeat proceedings instituted by the Crown in the interest of the public for the maintenance of good order … He may compromise his own civil rights, but he cannot compromise the public interests.’

Lord Coleridge CJ said (at 567):

‘… I conceive it to be established, beyond the power of any argument however ingenious to raise a doubt, that as the combatants in a duel cannot give consent to one another to take away life, so neither can the combatants in a prize-fight give consent to one another to commit that which the law has repeatedly held to be a breach of the peace. An individual cannot by such consent destroy the right of the Crown to protect the public and keep the peace.’

The conclusion is that, a prize-fight being unlawful, actual bodily harm or serious bodily harm inflicted in the course of a prize-fight is unlawful notwithstanding the consent of the protagonists.

In R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 the appellant in private beat a girl of 17 for purposes of sexual gratification, it was said with her consent. Swift J said ([1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210):

‘… 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, and when such an act is proved, consent is immaterial.’

In A-G’s Reference(No 6 of 1980) [1981] 2 All ER 1057 at 1059, [1981] QB 715 at 719 where two men quarrelled and fought with bare fists Lord Lane CJ, delivering the judgment of the Court of Appeal, said:

‘… it is not in the public interest that people should try to cause or should cause each other bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent. Nothing which we have said is intended to cast doubt on the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.’

Duelling and fighting are both unlawful and the consent of the protagonists affords no defence to charges of causing actual bodily harm, wounding or grievous bodily harm in the course of an unlawful activity.

The appellants and their victims in the present case were engaged in consensual homosexual activities. The attitude of the public towards homosexual practices changed in the second half of this century. Change in public attitudes led to a change in the law.

The Report of the Committee on Homosexual Offences and Prostitution (the Wolfenden Report) (Cmnd 247 (1957)) ch 2 para 13, declared that the function of the criminal law in relation to homosexual behaviour—

‘is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special, physical, official or economic dependence.’

In response to the Wolfenden Report and consistently with its recommendations, Parliament enacted s 1 of the Sexual Offences Act 1967, which provided, inter alia, as follows:

‘(1) Notwithstanding any statutory or common law provision … a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years.
(2) An act which would otherwise be treated for the purposes of this Act as being done in private shall not be so treated if done—(a) when more than two persons take part or are present …
(6) It is hereby declared that where in any proceedings it is charged that a homosexual act is an offence the prosecutor shall have the burden of proving that the act was done otherwise than in private or otherwise than with the consent of the parties or that any of the parties had not attained the age of twenty-one years.
(7) For the purposes of this section a man shall be treated as doing a homosexual act if, and only if, he commits buggery with another man or commits an act of gross indecency with another man or is a party to the commission by a man of such an act.’

The offence of gross indecency was created by s 13 of the Sexual Offences Act 1956 in the following terms:

‘It is an offence for a man to commit an act of gross indecency with another man, whether in public or private, or to be a party to the commission by a man of an act of gross indecency with another man, or to procure the commission by a man of an act of gross indecency with another man.’

By the 1967 Act Parliament recognised and accepted the practice of homosexuality. Subject to exceptions not here relevant, sexual activities conducted in private between not more than two consenting adults of the same sex or different sexes are now lawful. Homosexual activities performed in circumstances which do not fall within s 1(1) of the 1967 Act remain unlawful. Subject to the respect for private life embodied in the 1967 Act, Parliament has retained criminal sanctions against the practice, dissemination and encouragement of homosexual activities.

My Lords, the authorities dealing with the intentional infliction of bodily harm do not establish that consent is a defence to a charge under the 1861 Act. They establish that the courts have accepted that consent is a defence to the infliction of bodily harm in the course of some lawful activities. The question is whether the defence should be extended to the infliction of bodily harm in the course of sadomasochistic encounters. The Wolfenden Committee did not make any recommendations about sado-masochism and Parliament did not deal with violence in 1967. The 1967 Act is of no assistance for present purposes because the present problem was not under consideration.

The question whether the defence of consent should be extended to the consequences of sado-masochistic encounters can only be decided by consideration of policy and public interest. Parliament can call on the advice of doctors, psychiatrists, criminologists, sociologists and other experts and can also sound and take into account public opinion. But the question must at this stage be decided by this House in its judicial capacity in order to determine whether the convictions of the appellants should be upheld or quashed.

Counsel for some of the appellants argued that the defence of consent should be extended to the offence of occasioning actual bodily harm under s 47 of the 1861 Act but should not be available to charges of serious wounding and the infliction of serious bodily harm under s 20. I do not consider that this solution is practicable. Sado-masochistic participants have no way of foretelling the degree of bodily harm which will result from their encounters. The differences between actual bodily harm and serious bodily harm cannot be satisfactorily applied by a jury in order to determine acquittal or conviction.

Counsel for the appellants argued that consent should provide a defence to charges under both ss 20 and 47 because, it was said, 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. It is an offence for a person to abuse his own body and mind by taking drugs. Although the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally. In any event the 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.

The assertion was made on behalf of the appellants that the sexual appetites of sadists and masochists can only be satisfied by the infliction of bodily harm and that the law should not punish the consensual achievement of sexual satisfaction. There was no evidence to support the assertion that sado-masochist activities are essential to the happiness of the appellants or any other participants but the argument would be acceptable if sado-masochism were only concerned with sex as the appellants contend. In my opinion sado-masochism is not only concerned with sex. Sado-masochism is also concerned with violence. The evidence discloses that the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless.

A sadist draws pleasure from inflicting or watching cruelty. A masochist derives pleasure from his own pain or humiliation. The appellants are middle-aged men. The victims were youths some of whom were introduced to sadomasochism before they attained the age of 21. In his judgment in the Court of Appeal, Lord Lane CJ said that two members of the group of which the appellants formed part, namely one Cadman and the appellant Laskey—

‘were responsible in part for the corruption of a youth “K” … It is some comfort at least to be told, as we were, that “K” has now it seems settled into a normal heterosexual relationship. Cadman had befriended “K” when the boy was 15 years old. He met him in a cafeteria and, so he says, found out that the boy was interested in homosexual activities. He introduced and encouraged “K” in “bondage” affairs. He was interested in viewing and recording on video tape “K” and other teenage boys in homosexual scenes … One cannot overlook the danger that the gravity of the assaults and injuries in this type of case may escalate to even more unacceptable heights.’ (See 94 Cr App R 302 at 310.)

The evidence disclosed that drink and drugs were employed to obtain consent and increase enthusiasm. The victim was usually manacled so that the sadist could enjoy the thrill of power and the victim could enjoy the thrill of helplessness. The victim had no control over the harm which the sadist, also stimulated by drink and drugs, might inflict. In one case a victim was branded twice on the thigh and there was some doubt as to whether he consented to or protested against the second branding. The dangers involved in administering violence must have been appreciated by the appellants because, so it was said by their counsel, each victim was given a code word which he could pronounce when excessive harm or pain was caused. The efficiency of this precaution, when taken, depends on the circumstances and on the personalities involved. No one can feel the pain of another. The charges against the appellants were based on genital torture and violence to the buttocks, anus, penis, testicles and nipples. The victims were degraded and humiliated, sometimes beaten, sometimes wounded with instruments and sometimes branded. Bloodletting and the smearing of human blood produced excitement. There were obvious dangers of serious personal injury and blood infection. Prosecuting counsel informed the trial judge against the protests of defence counsel that, although the appellants had not contracted AIDS, two members of the group had died from AIDS and one other had contracted an HIV infection although not necessarily from the practices of the group. Some activities involved excrement. The assertion that the instruments employed by the sadists were clean and sterilised could not have removed the danger of infection, and the assertion that care was taken demonstrates the possibility of infection. Cruelty to human beings was on occasions supplemented by cruelty to animals in the form of bestiality. It is fortunate that there were no permanent injuries to a victim though no one knows the extent of harm inflicted in other cases. It is not surprising that a victim does not complain to the police when the complaint would involve him in giving details of acts in which he participated. Doctors of course are subject to a code of confidentiality.

In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sadomasochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty and result in offences under ss 47 and 20 of the 1861 Act.

The appellants’ counsel complained that some of the group’s activities involved the appellants in offences of gross indecency which, happily for the appellants, became time-barred before the police obtained video films made by members of the group of some of their activities. Counsel submitted that, since gross indecency charges were time-barred, the police acted unfairly when they charged the appellants with offences under the 1861 Act. But there was no reason for the police to refrain from pursuing the charges under the 1861 Act merely because other charges could not be pursued. Indecency charges are connected with sex. Charges under the 1861 Act are concerned with violence. The violence of sadists and the degradation of their victims have sexual motivations but sex is no excuse for violence.

The appellants’ counsel relied, somewhat faintly, on art 7 of the European Convention on Human Rights (see the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969)). That article, so far as material, provides:

‘1. No one shall be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed …’

At the relevant time it was a criminal offence under English law to inflict actual bodily harm or worse. Counsel submitted that the appellants reasonably believed that consent was a defence. This was an ingenious argument for which there was no foundation in fact or principle and which in any event does not seem to me to provide a defence under art 7.

The appellants’ counsel relied on art 8 of the convention, which is in these terms.

‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of natural security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

It is not clear to me that the activities of the appellants were exercises of rights in respect of private and family life. But assuming that the appellants are claiming to exercise those rights I do not consider that art 8 invalidates a law which forbids violence which is intentionally harmful to body and mind.

Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised. I would answer the certified question in the negative and dismiss the appeals of the appellants against conviction.

LORD JAUNCEY OF TULLICHETTLE. My Lords, all five appellants and a number of other persons were charged with offences against s 47 of the Offences against the Person Act 1861, and the appellants Laskey, Jaggard and Lucas were also charged with contraventions of s 20 of that Act. The events giving rise to all the charges were sado-masochistic homosexual activities carried out consensually by the appellants with each other and with other persons. Following upon a ruling of the trial judge that consent of the other participant (the receiver) was no defence to the charges the appellants pleaded guilty and were duly sentenced. Their appeals against the judge’s ruling were dismissed by the Court of Appeal, which certified the following point of law as being of general public importance:

‘Where A wounds or assaults B occasioning him actual bodily harm in the course of a sadomasochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A’s guilt under section 20 or section 47 of the 1861, Offences Against the Person Act.’

Although the issue of consent was fundamental and indeed common to all five appeals the appellants did not lack for representation since no less than four Queen’s Counsel and one junior counsel addressed your Lordships on their behalf on different aspects of this matter.

The facts giving rise to the charges came to light as a result of police investigation into other matters. It was common ground that the receivers had neither complained to the police nor suffered any permanent injury as a result of the activities of the appellants. Although the incidents giving rise to each charge were the subject of a video-recording, these recordings were made not for sale at a profit but for the benefit of those members of the ‘ring’, if one may so describe it, who had not had the opportunity of witnessing the events in person. Your Lordships were further informed that the activities of the appellants, who are middle-aged men, were conducted in secret and in a highly controlled manner, that code words were used by the receiver when he could no longer bear the pain inflicted upon him and that when fish-hooks were inserted through the penis they were sterilised first. None of the appellants however had any medical qualifications and there was, of course, no referee present such as there would be in a boxing or football match.

The basic argument propounded by all the appellants was that the receivers having in every case consented to what was inflicted upon them no offence had been committed against s 20 or s 47 of the 1861 Act. All the appellants recognised however that so broad a proposition could not stand up and that there must be some limitation upon the harm which an individual could consent to receive at the hand of another. The line between injuries to the infliction of which an individual could consent and injuries to whose infliction he could not consent must be drawn it was argued where the public interest required. Thus except in the case of regulated sports the public interest required that injuries should not be inflicted in public where they might give rise to a breach of the peace. Baroness Mallalieu QC, for Jaggard argued that injuries to which consent would be irrelevant were those which resulted in actual expense to the public by reason, for example, of the expenses of hospital or other medical treatment, or payment of some benefit. Such injuries would be likely to be serious and to be appropriate to a s 20 charge, whereas the consensual infliction of less serious injuries would not constitute an offence. Furthermore the presence of hostility was an essential element in the offence of assault, which element was necessarily lacking where a valid consent was present. Miss Worrall QC for Laskey maintained that everyone had a right to consent to the infliction on himself of bodily harm not amounting to serious harm or maiming, at which point public interest intervened. She further argued that having regard to the common law offence of keeping a disorderly house and to the various offences created by the Sexual Offences Acts 1956 to 1976 it was inappropriate to use the 1861 Act for the prosecution of sexual offences because the public interest was adequately looked after by the common law offence and the later Acts. Mr Kershen QC for Brown also argued that the 1861 Act was an inappropriate weapon to use in these cases. He submitted that, while deliberate infliction of injury resulting in serious bodily harm might be an offence whether or not consent was given, deliberate consensual wounding would not be an offence if it did not cause serious bodily harm. This latter proposition would appear to draw the line somewhere down the middle of s 20. Mr Kershen further argued that if his primary submissions were wrong this House should, having regard to the current public interest in freedom of sexual expression, lay down new rules for sado-masochistic activities. Mr Thwaites QC for Carter traced the history of the offence of maiming, which deprived the King of possible service, invited your Lordships to hold that R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 and A-G’s Reference(No 6 of 1980) [1981] 2 All ER 1057, [1981] QB 715, to which I shall refer later, were wrongly decided and submitted that as a matter of principle a man could lawfully consent to the infliction of any injury upon himself which fell short of maiming.

In concluding that the consent of the receivers was immaterial to the offences charged the Court of Appeal relied on three cases, namely R v Coney (1882) 8 QBD 534, R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 and A-G’s Reference(No 6 of 1980) [1981] 2 All ER 1057, [1981] QB 715. Before examining these cases it is interesting to look at the definitions of ‘maim’ and ‘assault’ in Hawkins’ Pleas of the Crown (1 Hawk PC (8th edn, 1824) ch 15). Maiming is defined as ‘… such a hurt of any part of a man’s body whereby he is rendered less able, in fighting, either to defend himself or to annoy his adversary …’ (see p 107, s 1). Examples are then given. Assault is defined as ‘… an attempt to offer, with force and violence, to do a corporal hurt to another’ (see p 110, s 1) and battery as ‘… any injury whatsoever be it never so small, being actually done to the person of a man in an angry, revengeful, rude, or insolent manner …’ (see p 110, s 2). It is to be noted that lack of consent of the victim is stated to be a necessary ingredient neither of assault nor of battery. In R v Coney (1882) 8 QBD 534 the 11 judges who heard the case held that a prize-fight was unlawful, that all persons aiding and abetting therein were guilty of assault and that consent of the persons actually engaged in fighting to the interchange of blows did not afford any answer to the criminal charge of common assault. The appellants were spectators at an organised fight between two men near a public road. Cave J said (at 539):

‘The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault, and that, an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial. If this view is correct a blow struck in a prize-fight is clearly an assault; but playing with single-sticks or wrestling do not involve an assault; nor does boxing with gloves in the ordinary way, and not with the ferocity and severe punishment to the boxers deposed to in Reg. v. Orton ((1878) 39 LT 293).’

Stephen J said (at 549):

‘The principle as to consent seems to me to be this: When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually received does not prevent those blows from being assaults.’

In this passage Stephen J clearly considered that prize-fights were likely to cause breaches of the peace and that no consent could render fights with such a result lawful. In a later passage he said:

‘In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football, and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances.’

In this passage he appears to be considering organised sports where danger to life and limb is merely incidental to the main purpose of the activity. Hawkins J said (at 553):

‘As a general proposition it is undoubtedly true that there can be no assault unless the act charged as such be done without the consent of the person alleged to be assaulted, for want of consent is an essential element in every assault, and that which is done by consent is no assault at all … it is not in the power of any man to give an effectual consent to that which amounts to, or has a direct tendency to create, a breach of the peace; so as to bar a criminal prosecution.’

Hawkins J concluded that every fight in which the object and intent of each of the combatants was to subdue the other by violent blows tending to a breach of the peace was illegal and he distinguished friendly encounters in the follow passage (at 554):

‘The cases in which it has been held that persons may lawfully engage in friendly encounters not calculated to produce real injury to or to rouse angry passions in either, do not in the least militate against the view I have expressed; for such encounters are neither breaches of the peace nor are they calculated to be productive thereof …’

It is obvious that in concluding that prize-fights were unlawful he was influenced mainly, if not entirely, by the fact that they were likely to be productive of breaches of the peace. Furthermore, it would in my view be wrong to treat the first cited dictum of Hawkins J as referring to all assaults irrespective of the gravity thereof. The court was considering a charge of common assault and I do not think that the learned judge was intending to lay down a general principle which was applicable also to assaults charged under s 47 of the 1861 Act or to offences under s 20 thereof. Lord Coleridge CJ similarly concluded that the combatants in a prize-fight could not consent to commit a breach of the peace (at 567).

Although there was unanimity among the judges in R v Coney as to consent in the particular circumstances affording no answer to a charge of assault, there were differing reasons advanced for reaching that conclusion. However, Cave, Stephen and Hawkins JJ and Lord Coleridge CJ all considered that effectual consent could not be given to blows producing or likely to produce a breach of the peace. Stephen J specifically referred to prize-fights being injurious to the public as disorderly exhibitions and it may be assumed that the other three judges also had in mind the public interest in preventing breaches of the peace. Given the fact that the fight took place before a crowd of more than 100 persons the likelihood of a breach of the peace would by itself have been sufficient to negative consent without considering the nature and effect of the blows struck. Nevertheless, Stephen J also considered that it was against the public interest that blows should endanger the health of the combatants. Whether he had in mind only blows which produced a maim is not stated although in the editions of his Digest of the Criminal Law published before and after R v Coney he stated (3rd edn (1883) pp 141–142, art 206): ‘Every one has a right to consent to the infliction upon himself of bodily harm not amounting to a maim.’ I do not find great assistance in R v Coney towards the immediate resolution of the questions raised in these appeals where the offences charged were statutory and where no question of breach of the peace arose. I would therefore sum up my analysis of R v Coney (1882) 8 QBD 534 by concluding that it is authority for the proposition that the public interest limits the extent to which an individual may consent to infliction upon himself by another of bodily harm and that such public interest does not intervene in the case of sports where any infliction of injury is merely incidental to the purpose of the main activity.

In R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 the appellant was charged with indecent and common assault upon a girl whom he had beaten with her consent for his own sexual gratification. In delivering the judgment of the Court of Criminal Appeal Swift J, after citing the passage in the judgment of Cave J in R v Coney 8 QBD 534 at 539, to which I have already referred, said ([1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210):

‘If an act is unlawful in the sense of being in itself 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. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer. There are, however, many acts in themselves harmless and lawful which become unlawful only if they are done without the consent of the person affected. What is, in one case, an innocent act of familiarity or affection, may, in another, be an assault, for no other reason than that, in the one case there is consent, and in the other consent is absent. 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, and when such an act is proved, consent is immaterial.’

Swift J also observed that the passage from Stephen’s Digest of the Criminal Law which I have quoted above needed considerable qualification in 1934. He went on to consider exceptions to the general rule that an act likely or intended to cause bodily harm is an unlawful act. Such exceptions included friendly contests with cudgels, foils or wrestling which were capable of causing bodily harm, rough and undisciplined sports or play where there was no anger and no intention to cause bodily harm and reasonable chastisement by a parent or a person in loco parentis. He might also have added necessary surgery. After referring to the fact that if the appellant acted so as to cause bodily harm he could not plead the gratification of his perverted desires as an excuse, Swift J said ([1934] 2 KB 498 at 509, [1934] All ER Rep 207 at 211–212):

‘Always supposing, therefore, that the blows which he struck were likely or intended to do bodily harm, we are of opinion that he was doing an unlawful act, no evidence having been given of facts which would bring the case within any of the exceptions to the general rule. In our view, on the evidence given at the trial, the jury should have been directed that, if they were satisfied that the blows struck by the prisoner were likely or intended to do bodily harm to the prosecutrix, they ought to convict him, and that it was only if they were not so satisfied, that it became necessary to consider the further question whether the prosecution had negatived consent. For this purpose we think that “bodily harm” has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.’

It is clear from the report that the girl did in fact suffer actual bodily harm.

In A-G’s Reference(No 6 of 1980) [1981] 2 All ER 1057, [1981] QB 715 the respondent and the victim had a fist-fight in a public street which resulted in actual bodily harm to the victim. The respondent was charged with assault causing actual bodily harm and was acquitted. The question referred to the Court of Appeal was ([1981] 2 All ER 1057 at 1058, [1981] QB 715 at 717):

‘Where two persons fight (otherwise than in the course of sport) in a public place can it be a defence for one of those persons to a charge of assault arising out of the fight that the other consented to fight?’

The court answered the question in the negative. Lord Lane CJ said ([1981] 2 All ER 1057 at 1059, [1981] QB 715 at 718–719):

‘Bearing in mind the various cases and the views of the textbook writers cited to us, and starting with the proposition that ordinarily an act consented to will not constitute an assault, the question is: at what point does the public interest require the court to hold otherwise?’

He later said ([1981] 2 All ER 1057 at 1059, [1981] QB 715 at 719):

‘The answer to this question, in our judgment, is that it is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent. Nothing which we have said is intended to cast doubt on the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.’

Although the reasoning in these two cases differs somewhat, the conclusion from each of them is clear, namely that the infliction of bodily harm without good reason is unlawful and that the consent of the victim is irrelevant. In R v Boyea (1992) 156 JP 505 at 512–513, in which the appellant was convicted of indecent assault on a woman, Glidewell LJ, giving the judgment of the Court of Appeal, Criminal Division, said:

‘The central proposition in Donovan ([1934] 2 KB 498, [1934] All ER Rep 207) is in our view consistent with the decision of the court in the Attorney-General’s Reference [A-G’s Reference (No 6 of 1980) [1981] 2 All ER 1057, [1981] QB 715]. That proposition can be expressed as follows: an assault intended or which is likely to cause bodily harm, accompanied by indecency, is an offence irrespective of consent, provided that the injury is not “transient or trifling”.’

Glidewell LJ went on to point out that having regard to the change in social attitude towards sexual relations ‘transient and trivial’ must be understood in the light of conditions prevailing in 1992 rather than in 1934.

Before considering whether the above four cases were correctly decided and if so what relevance they have to these appeals, I must say a word about hostility. It was urged upon your Lordships that hostility on the part of the inflicter was an essential ingredient of assault and that this ingredient was necessarily lacking when injury was inflicted with the consent of the receiver. It followed that none of the activities in question constituted assault. The answer to this submission is to be found in the judgment of the Court of Appeal in Wilson v Pringle [1986] 2 All ER 440 at 447, [1987] QB 237 at 253, where it was said, that hostility could not be equated with ill-will or malevolence. The judgment went on to state ([1986] 2 All ER 440 at 448, [1987] QB 237 at 253):

‘Take the example of the police officer in Collins v Wilcock [1984] 3 All ER 374, [1984] 1 WLR 1172. She touched the woman deliberately, but without an intention to do more than restrain her temporarily. Nevertheless, she was acting unlawfully and in that way was acting with hostility.’

If the appellants’ activities in relation to the receivers were unlawful they were also hostile and a necessary ingredient of assault was present.

It was accepted by all the appellants that a line had to be drawn somewhere between those injuries to which a person could consent to infliction upon himself and those which were so serious that consent was immaterial. They all agreed that assaults occasioning actual bodily harm should be below the line but there was disagreement as to whether all offences against s 20 of the 1861 Act should be above the line or only those resulting in grievous bodily harm. The four English cases to which I have referred were not concerned with the distinction between the various types of assault and did not therefore have to address the problem raised in these appeals. However it does appear that in R v Donovan, A-G’s Reference(No 6 of 1980) and R v Boyea the infliction of actual bodily harm was considered to be sufficient to negative any consent. Indeed in R v Donovan and R v Boyea such injuries as were sustained by the two women could not have been described as in any way serious. Cave J in R v Coney appeared to take the same view. On the other hand, Stephen J in R v Coney appeared to consider that it required serious danger to life and limb to negative consent, a view which broadly accords with the passage in his digest to which I have already referred. A similar view was expressed by McInerney J in the Supreme Court of Victoria in Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331.

I prefer the reasoning of Cave J in R v Coney and of the Court of Appeal in the later three English cases which I consider to have been correctly decided. In my view the line properly falls to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by s 47 of the 1861 Act, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of s 20 unless the circumstances fall within one of the well-known exceptions such as organised sporting contests and games, parental chastisement or reasonable surgery. There is nothing in ss 20 and 47 of the 1861 Act to suggest that consent is either an essential ingredient of the offences or a defence thereto. If consent is to be an answer to a charge under s 47 but not to one under s 20, considerable practical problems would arise. It was held in R v Savage, R v Parmenter [1991] 4 All ER 698 at 711, [1992] 1 AC 699 at 740 that a verdict of guilty of assault occasioning actual bodily harm is a permissible alternative verdict on a count alleging unlawful wounding contrary to s 20 (per Lord Ackner). A judge charging a jury in a s 20 case would therefore not only have to direct them as to the alternative verdict available under s 47, but also as to the consequences of consent in relation to that alternative only. Such direction would be more complex if consent was an answer to wounding under s 20 but not to the infliction of grievous bodily harm under the same section. These problems would not arise if consent is an answer only to common assault. I would therefore dispose of these appeals on the basis that the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer. In reaching this conclusion I have not found it necessary to rely on the fact that the activities of the appellants were in any event unlawful inasmuch as they amounted to acts of gross indecency which, not having been committed in private, did not fall within s 1(1) of the Sexual Offences Act 1967. Notwithstanding the views which I have come to, I think it right to say something about the submissions that consent to the activity of the appellants would not be injurious to the public interest.

Considerable emphasis was placed by the appellants on the well-ordered and secret manner in which their activities were conducted and upon the fact that these activities had resulted in no injuries which required medical attention. There was, it was said, no question of proselytising by the appellants. This latter submission sits ill with the following passage in the judgment of Lord Lane CJ (94 Cr App R 302 at 310):

‘They [Laskey and Cadman] recruited new participants: they jointly organised proceedings at the house where much of this activity took place; where much of the pain inflicting equipment was stored. Cadman was a voyeur rather than a sado-masochist, but both he and Laskey through their operations at the Horwich premises were responsible in part for the corruption of a youth “K” to whom the judge, rightly in our view, paid particular attention. It is some comfort at least to be told, as we were, that “K” is now it seems settled into a normal heterosexual relationship.’

Be that as it may, in considering the public interest it would be wrong to look only at the activities of the appellants alone, there being no suggestion that they and their associates are the only practitioners of homosexual sado-masochism in England and Wales. This House must therefore consider the possibility that these activities are practised by others and by others who are not so controlled or responsible as the appellants are claimed to be. Without going into details of all the rather curious activities in which the appellants engaged, it would appear to be good luck rather than good judgment which has prevented serious injury from occurring. Wounds can easily become septic if not properly treated, the free flow of blood from a person who is HIV positive or who has AIDS can infect another and an inflicter who is carried away by sexual excitement or by drink or drugs could very easily inflict pain and injury beyond the level to which the receiver had consented. Your Lordships have no information as to whether such situations have occurred in relation to other sado-masochistic practitioners. It was no doubt these dangers which caused Baroness Mallalieu to restrict her propositions in relation to the public interest to the actual rather than the potential result of the activity. In my view such a restriction is quite unjustified. When considering the public interest potential for harm is just as relevant as actual harm. As Mathew J said in R v Coney (1882) 8 QBD 534 at 547:

‘There is, however, abundant authority for saying that no consent can render that innocent which is in fact dangerous.’

Furthermore, the possibility of proselytisation and corruption of young men is a real danger even in the case of these appellants and the taking of video-recordings of such activities suggests that secrecy may not be as strict as the appellants claimed to your Lordships. If the only purpose of the activity is the sexual gratification of one or both of the participants what then is the need of a video-recording?

My Lords I have no doubt that it would not be in the public interest that deliberate infliction of actual bodily harm during the course of homosexual sado-masochistic activities should be held to be lawful. In reaching this conclusion I have regard to the information available in these appeals and of such inferences as may be drawn therefrom. I appreciate that there may be a great deal of information relevant to these activities which is not available to your Lordships. When Parliament passed the Sexual Offences Act 1967 which made buggery and acts of gross indecency between consenting males lawful it had available the Report of the Committee on Homosexual Offences and Prostitution (the Wolfenden Report) (Cmnd 247 (1957)), which was the product of an exhaustive research into the problem. If it is to be decided that such activities as the nailing by A of B’s foreskin or scrotum to a board or the insertion of hot wax into C’s urethra followed by the burning of his penis with a candle or the incising of D’s scrotum with a scalpel to the effusion of blood are injurious neither to B, C and D nor to the public interest then it is for Parliament with its accumulated wisdom and sources of information to declare them to be lawful.

Two further matters only require to be mentioned. There was argument as to whether consent, where available, was a necessary ingredient of the offence of assault or merely a defence. There are conflicting dicta as to its effect. In R v Coney (1882) 8 QBD 534 at 549 Stephen J referred to consent as being ‘no defence’, whereas in A-G’s Reference (No 6 of 1980) [1981] 2 All ER 1057 at 1058, [1981] QB 715 at 718 Lord Lane CJ referred to the onus being on the prosecution to negative consent. In Collins v Wilcock [1984] 3 All ER 374 at 378, [1984] 1 WLR 1172 at 1177 Robert Goff LJ referred to consent being a defence to a battery. If it were necessary, which it is not, in this appeal to decide which argument was correct I would hold that consent was a defence to but not a necessary ingredient in assault.

The second matter is the argument that the appellants should have been charged under the Sexual Offences Act 1956 and not under the 1861 Act. The appellants could within the time limit have been charged under the 1956 Act with committing acts of gross indecency. However that Act contained no provision limiting the effect of ss 20 and 47 of the 1861 Act to offences unconnected with sex. The Wolfenden Report in considering gross indecency between males took the view that it usually took one of three forms, of which none involved the deliberate infliction of injury. Your Lordships were referred to no material which suggested that Parliament, when enacting the 1967 Act, had in contemplation the type of activities engaged in by the appellants. These activities necessarily comprehended acts of gross indecency as referred to in s 13 of the 1956 Act and s 1(7) of the 1967 Act. However, the Wolfenden Report para 105 states that from police reports seen by the committee and other evidence acts of gross indecency usually take one of the three forms in which none involves violence or injury. The activities of the appellants thus went far beyond the sort of conduct contemplated by the legislature in the foregoing statutory provisions and I consider that they were unlawful even when carried out in private. In these circumstances there exists no reason why the appellants should not have been charged under the 1861 Act.

I cannot usefully add anything to what my noble and learned friend Lord Templeman has said in relation to the appellants’ argument on arts 7 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedom (Rome, 4 November 1950; TS 71 (1953); Cmd 8969).

My Lords, I would answer the certified question in the negative and dismiss the appeals.

LORD LOWRY. My Lords, I have had the advantage of reading in draft the speeches of your Lordships. I agree with the reasoning and conclusions of my noble and learned friends Lord Templeman and Lord Jauncey of Tullichettle and I, too, would answer the certified question in the negative and dismiss the appeals.

In stating my own further reasons for this view I shall address myself exclusively to the cases in which, as has been informally agreed, one person has acted upon another in private, occasioning him actual bodily harm but nothing worse.

The appellants’ main point is that, contrary to the view of the trial judge and the Court of Appeal, the consent of the victim, as I shall call the willing recipient of the sado-masochistic treatment, constitutes a defence to the charges of assault occasioning actual bodily harm contrary to s 47 of the Offences against the Person Act 1861 and of wounding contrary to s 20 of the 1861 Act (no more than actual bodily harm being occasioned) or, to put it another way, that, when the victim consents, no such offence of assault or wounding as I have described takes place.

Under the law which formerly held sway (and which has been thoroughly described and analysed by my noble and learned friend Lord Mustill) consent was a defence to a charge of common assault but not to a charge of mayhem or maiming. Everyone agrees that consent remains a complete defence to a charge of common assault and nearly everyone agrees that consent of the victim is not a defence to a charge of inflicting really serious personal injury (or ‘grievous bodily harm’). The disagreement concerns offences which occasion actual bodily harm: the appellants contend that the consent of the victim is a defence to one charged with such an offence, while the respondent submits that consent is not a defence. I agree with the respondent’s contention for reasons which I now explain.

The 1861 Act was one of several laudable but untidy Victorian attempts to codify different areas of the law. From the accusation of untidiness I must exempt such measures as the Bills of Exchange Act 1882 and the Sale of Goods Act 1893, but in regard to the 1861 Act I would adopt the words of para 7.4 of the Law Commission’s Consultation Paper No 122, Legislating the Criminal Code: Offences against the Person and General Principles (1992):

‘Sections 18, 20 and 47 of the 1861 Act are not part of a comprehensive legislative code, were not drafted with a view to setting out the various offences with which they deal in a logical or graded manner; in some cases do not create offences, but merely state the punishment for what is regarded as an existing common law offence; and, above all, in so doing employ terminology that was difficult to understand even in 1861. The sections are virtually the only significant part of the extensive series of criminal law statutes passed in 1861 that still remains on the statute book. Those Acts as a whole attracted early criticism, not least from Sir [James] Fitzjames Stephen [in a letter to Sir John Holker, 20 January 1877 cited by Sir Rupert Cross in Glazebrook (ed) Reshaping the Criminal Law (1978) p 10]: “Their arrangement is so obscure, their language so lengthy and cumbrous, and they are based upon and assume the existence of so many singular common law principles that no-one who was not already well acquainted with the law would derive any information from reading them.” More recent critics have agreed with these strictures describing the 1861 Act as “piece-meal legislation”, which is a “rag-bag of offences brought together from a wide variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form” [see Professor J C Smith in his commentary on R v Parmenter [1991] 2 All ER 225, [1992] 1 AC 699, CA ([1991] Crim LR 43) cited in R v Savage, R v Parmenter [1991] 4 All ER 698 at 721, [1992] 1 AC 699 at 752, HL].’

The 1861 Act has not the form or substance of a true consolidation but, with acknowledgments to the work of C S Greaves QC (Criminal Law Consolidation and Amendment Acts (2nd edn, 1862) pp xxvi, 52–53, 76), Law Commission Consultation Paper No 122 traces s 18 of the 1861 Act to s 4 of the Act 7 Will 4 & 1 Vict c 85 (offences against the person (1837)), s 20 to s 29 of the Act 10 Geo 4, c 34 (offences against the person (Ireland) (1829)) and s 47 to s 29 of the Criminal Procedure Act 1851). I do not think, however, that it would be helpful to your Lordships for me to go further back than the 1861 Act itself.

It follows that the indications to be gathered from the 1861 Act are not precise. Nevertheless, I consider that it contains fairly clear signs that, with regard to the relevance of the victim’s consent as a defence, assault occasioning actual bodily harm and wounding which results in actual bodily harm are not offences ‘below the line’, to be ranked with common assault as offences in connection with which the victim’s consent provides a defence, but offences ‘above the line’, to be ranked with inflicting grievous bodily harm and the other more serious offences in connection with which the victim’s consent does not provide a defence. The sections in question, in their original form, read as follows:

‘ 18. Whosoever shall unlawfully and maliciously by any Means whatsoever wound or cause any grievous bodily Harm to any Person, or shoot at any Person, or, by drawing a Trigger or in any other Manner, attempt to discharge any Kind of loaded Arms at any Person, with Intent, in any of the Cases aforesaid, to maim, disfigure, or disable any Person, or to do some other grievous bodily Harm to any Person, or with Intent to resist or prevent the lawful Apprehension or Detainer of any Person, shall be guilty of Felony, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any Term not less than Three Years,—or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour, and with or without Solitary Confinement … 20. Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily Harm upon any other Person, either with or without any Weapon or Instrument, shall be guilty of a Misdemeanour, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for the Term of Three Years, or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour … 47. Whosoever shall be convicted upon an Indictment of any Assault occasioning actual bodily Harm shall be liable, at the discretion of the Court, to be kept in Penal Servitude for the Term of Three Years, or to be imprisoned for any Term not exceeding Two Years, [with] or without Hard Labour; and whosoever shall be convicted upon an Indictment for a common Assault shall be liable, at the Discretion of the Court, to be imprisoned for any Term not exceeding One Year, with or without Hard Labour.’

I suggest that the following points should be noted. (1) Offences against s 18 were felonies, but offences against ss 20 and 47 were misdemeanours. Therefore s 20 was not associated with s 18 and separated from s 47 by categorisation. (2) Although s 47 appears to describe a less serious offence than s 20, the maximum penalty was the same. Equality was maintained at five years’ imprisonment after the distinction between felony and misdemeanour was abolished. (3) Wounding is associated in ss 18 and 20 with the infliction of grievous bodily harm and is naturally thought of as a serious offence, but it may involve anything from a minor breaking or puncture of the skin to a near fatal injury. Thus wounding may simply occasion actual bodily harm or it may inflict grievous bodily harm. If the victim’s consent is a defence to occasioning actual bodily harm, then, so far as concerns the proof of guilt, the line is drawn, as my noble and learned friend Lord Jauncey of Tullichettle puts it, ‘somewhere down the middle of s 20’, which I would regard as a most unlikely solution. (4) According to the appellants’ case, if an accused person charged with wounding relies on consent as a defence, the jury will have to find whether anything more than actual bodily harm was occasioned, something which is not contemplated by s 20. (5) The distinction between common assault and all other attacks on the person is that common assault does not necessarily involve significant bodily injury. It is much easier to draw the line between significant injury and some injury than to differentiate between degrees of injury. It is also more logical, because for one person to inflict any injury on another without good reason is an evil in itself (malum in se) and contrary to public policy. (6) That consent is a defence to a charge of common assault is a common law doctrine which the 1861 Act has done nothing to change.

The proposition that the line of ‘victim’s consent’ is regarded as drawn just above common assault gains support from the wording of cl 8(1) of the Bill attached to Law Commission Consultation Paper No 122 (see para 9.10):

‘A person is guilty of assault if—(/a/) he intentionally or recklessly applies force to or causes an impact on the body of another, (i) without the consent of the other; or (ii) where the act is likely or intended to cause injury, with or without the consent of the other; or (/b/) he intentionally or recklessly, without the consent of the other, causes the other to believe that any such force or impact is imminent.’

My Lords, on looking at the cases, I get little help from R v Coney (1882) 8 QBD 534, which was much canvassed at the hearing of the appeal and on which your Lordships, necessarily, have commented. The case contains a number of inconclusive and sometimes conflicting statements, but it was generally agreed (the charge being one of common assault) that consent was no defence to that which amounted to, or had a direct tendency to create, a breach of the peace. The only support for the present appellants is found in the judgment of Stephen J (at 549):

‘In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used …’

The learned judge developed this view in his Digest of the Criminal Law, where he stated that consent was a defence to a charge of assault occasioning actual bodily harm. Archbold Criminal Pleading Evidence and Practice adopted that statement, for which there is no other judicial authority, until it was disapproved in R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 and the editor of later editions of Stephen’s Digest of the Criminal Law has abandoned the distinguished author’s proposition.

In R v Donovan the appellant had been convicted on two counts, indecent assault and common assault. The only issue of fact was whether the victim consented. The chairman of quarter sessions rightly told the jury that the case depended on the issue of consent. The jury must have rejected the appellant’s evidence, but the Court of Criminal Appeal held that the chairman had misdirected the jury as to the burden of proof on the consent issue and quashed the conviction. It was obvious what had to be done once the court found misdirection on the vital issue, but it is instructive to note what happened. Lord Hewart CJ is reported as saying at the conclusion of argument (25 Cr App R 1 at 4):

‘We have come to the conclusion that this trial, dealing as it did with a revolting matter, was in various ways unsatisfactory. The Court is compelled, however reluctantly, to take the view that in the circumstances this conviction cannot safely be upheld and that this appeal must be allowed. The matter involves, however, more than one question of importance and we propose therefore to give our reasons for our decision upon a later day.’

Five weeks later Swift J delivered the judgment of the court, disposing first of the consent issue and another point (see [1934] 2 KB 498, [1934] All ER Rep 207). He then dealt with the question which has some relevance to the present appeals and which he introduced as follows ([1934] 2 KB 498 at 506, [1934] All ER Rep 207 at 210):

‘This conclusion would have been enough to dispose of the case were it not for the fact that the learned counsel for the Crown relied in this Court upon the submission which he had unsuccessfully made at the trial, and argued that, this being a case in which it was unnecessary for the Crown to prove absence of consent, this Court ought not to quash the conviction.’

A doctor who gave evidence for the Crown had said that marks on the girl’s body two days after the incident indicated ‘a fairly severe beating’; therefore clearly actual bodily harm had been caused. The judgment continued: ‘We have given careful consideration to the question of law which this submission raises.’ Then, having noted observations of Cave J in R v Coney (1882) 8 QBD 334 at 539, the judge said ([1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210–211):

‘We have considered the authorities upon which this view of the learned judge was founded, and we think it of importance that we should state our opinion as to the law applicable in this case. If an act is unlawful in the sense of being in itself 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. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer … 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, and when such an act is proved, consent is immaterial. We are aware that the existence of this rule has not always been clearly recognised. In his Digest of the Criminal Law (6th edn, 1904), Art. 227, Sir James FitzJames Stephen enunciates the proposition that “every one has a right to consent to the infliction upon himself of bodily harm not amounting to a maim.” This may have been true in early times when the law of this country showed remarkable leniency towards crimes of personal violence, but it is a statement which now needs considerable qualification.’ (My emphasis.)

Having referred to East’s Pleas of the Crown and Foster’s Crown Law (3rd edn, 1809) p 259, Swift J stated ([1934] 2 KB 498 at 508, [1934] All ER Rep 207 at 211):

‘If an act is malum in se in the sense in which Sir Michael Foster used the words, that is to say, is, in itself, unlawful, we take it to be plain that consent cannot convert it into an innocent act.’

Having then mentioned the ‘well established exceptions’ to the general rule that an act likely or intended to cause bodily harm is an unlawful act, he continued ([1934] 2 KB 498 at 509, [1934] All ER Rep 207 at 211–212):

‘In the present case it was not in dispute that the motive of the appellant was to gratify his own perverted desires. If, in the course of so doing, he acted so as to cause bodily harm, he cannot plead his corrupt motive as an excuse, and it may truly be said of him in Sir Michael Foster’s words that “he certainly beat him with an intention of doing him some bodily harm, he had no other intent,” and that what he did was malum in se. Nothing could be more absurd or more repellent to the ordinary intelligence than to regard his conduct as comparable with that of a participant in one of those “manly diversions” of which Sir Michael Foster wrote. Nor is his act to be compared with the rough but innocent horse-play in Reg. v. Bruce ((1847) 2 Cox CC 262). Always supposing, therefore, that the blows which he struck were likely or intended to do bodily harm, we are of opinion that he was doing an unlawful act, no evidence having been given of facts which would bring the case within any of the exceptions to the general rule. In our view, on the evidence given at the trial, the jury should have been directed that, if they were satisfied that the blows struck by the prisoner were likely or intended to do bodily harm to the prosecutrix, they ought to convict him, and that it was only if they were not so satisfied, that it became necessary to consider the further question whether the prosecution had negatived consent.’

This passage is followed by an explanation why, the question not having been put to the jury, the court did not feel that, consistently with its practice, it could uphold the conviction on the ground argued by Crown counsel.

I find this part of the court’s judgment hard to follow, when I recall the protest made at his trial by Sir Walter Raleigh to Sir Edward Coke ((1603) 2 State Tr 1 at 26): ‘Mr Attorney, you should speak secundum allegata et probata.’ The rule that the Crown cannot otherwise recover is a universal proposition, not confined to trials of the high and mighty for treason. The prosecution must both allege and prove. There were two counts in the indictment, to which consent of the victim was a complete defence. If the jury, properly directed, had found that consent was not disproved, they must have acquitted the appellant of the only charges brought against him. How, then, could they have convicted the appellant of either of those charges or of the offence of assault, occasioning actual bodily harm, with which he was not charged? It will not be overlooked that the judgment ran, ‘where the act charged is in itself unlawful’ (see [1934] 2 KB 498 at 507, 1934] All ER Rep 207 at 210).

Does the second part of the Court of Criminal Appeal’s judgment therefore stand condemned in all respects? My Lords, I suggest not. It clearly indicates the view of the court that assault, occasioning actual bodily harm, is malum in se, an offence for which, absent one of the recognised exceptions, the accused will be convicted, even though the victim consents.

/A/-/G’s Reference /(/No 6 of 1980/) [1981] 2 All ER 1057, [1981] QB 715 was relied on by both sides before your Lordships. The charge was one of assault, occasioning actual bodily harm; the fight, between youths of 18 and 17 years, took place in the street; and the question referred was concerned with fighting in public. In giving judgment, however, the court expressly made no distinction between fighting in public and in private. Lord Lane CJ introduced the subject by saying ([1981] 2 All ER 1057 at 1058, [1981] QB 715 at 718):

‘We think that it can be taken as a starting point that it is an essential element of an assault that the act is done contrary to the will and without the consent of the victim; and it is doubtless for this reason that the burden lies on the prosecution to negative consent. Ordinarily, then, if the victim consents, the assailant is not guilty.’

Then he said ([1981] 2 All ER 1057 at 1059, [1981] QB 715 at 718–719):

‘Bearing in mind the various cases and the views of the textbook writers cited to us, and starting with the proposition that ordinarily an act consented to will not constitute an assault, the question is: at what point does the public interest require the court to hold otherwise?’

I would concede that the natural way in which to construe these passages is to the effect that (1) there is no assault if the act is consented to by the victim and (2) where the victim has consented, a factor directed to the public interest is needed in order to make the court hold that an offence has been committed. No doubt this is what caused Professor Glanville Williams in Textbook of Criminal Law (2nd edn, 1983) pp 582–589 to express the view that, by vitiating the effect of the victim’s consent in cases where the occasioning of physical harm seemed to be against the public interest, the courts were extending the law against assault and were legislating judicial paternalism.

Lord Lane CJ then spoke of the need for a ‘partly new approach’ (compared with that found in R v Coney and R v Donovan). He continued ([1981] 2 All ER 1057 at 1059, [1981] QB 715 at 719):

‘The answer to this question [at what point does the public interest require the court to hold otherwise?], in our judgment, is that it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent.

Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.
Our answer to the point of law is No, but not (as the reference implies) because the fight occurred in a public place, but because, wherever it occurred, the participants would have been guilty of assault (subject to self-defence) if (as we understand was the case) they intended to and or did cause actual bodily harm.’

The appellants submitted that this pronouncement was confined to fighting but, as Professor Glanville Williams pointed out, the contents of the second paragraph cited above appear to contradict this view. Thus we are left with the proposition that it is not in the public interest that people should try to cause, or should cause, each other actual bodily harm for no good reason and that it is an assault if actual bodily harm is caused (except for good reason).

This principle was adopted in R v McCoy 1953 (2) SA 4 [SR] (although it was not required in order to decide the case), where the manager of an airline caned an air hostess, allegedly with her consent, as a punishment for failing to secure her seat belt when landing, and also by the Court of Appeal in R v Boyea (1992) 156 JP 505. I think that consideration of the 1861 Act and the indications to be derived from the cases together provide strong support for the Crown’s case on the effect of consent on charges involving actual bodily harm. While saying this, I do not forget the danger of applying to a particular situation cases decided by judges who, in reaching their decisions, were not thinking of that situation at all.

Let me now consider the judgment of the Court of Appeal in this case, delivered by Lord Lane CJ (see [1992] 2 All ER 552, [1992] QB 491). First, I agree with the disposal, brief as it was, of the appellants’ argument directed to the word ‘hostility’. On this point I gladly adopt everything which has been said by my noble and learned friend Lord Jauncey. I also concur in the summary dismissal of the argument that it was inappropriate for the Crown to have proceeded under the 1861 Act. There was a considerable delay and one may speculate that the prosecuting authorities had cast around for a suitable vehicle for their accusations before finally deciding to proceed under the 1861 Act in this unusual case, but the only way of meeting these charges otherwise than on the merits was to contend that they amounted to an abuse of process. This procedure was not resorted to, which is not surprising in the state of the authorities.

Predictably, the appeal and the judgment in the Court of Appeal were mainly occupied with the effect of the victim’s consent (see [1992] 2 All ER 552 at 557–560, [1992] QB 491 at 497–500). Having cited R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 Lord Lane CJ drew attention to Kenny’s Outline of Criminal Law (19th edn, 1966) p 209 and Archbold’s Pleading Evidence and Practice in Criminal Cases (43rd edn, 1988) para 20–124 (see [1992] 2 All ER 552 at 558–599, [1992] QB 491 at 499) and went on to consider A-G’s Reference(No 6 of 1980) [1981] 2 All ER 1057, [1981] QB 715. Commenting on that case ([1981] 2 All ER 1057 at 1059, [1981] QB 715 at 719), he said ([1992] 2 All ER 552 at 559, [1992] QB 491 at 500):

‘What may be “good reason” it is not necessary for us to decide. It is sufficient to say, so far as the instant case is concerned, that we agree with the trial judge that the satisfying of sado-masochistic libido does not come within the category of good reason nor can the injuries be described as merely transient or trifling.’

In the immediately following paragraph of his judgment Lord Lane CJ shows that what he said in A-G’s Reference (No 6 of 1980) was intended by him to be of general application:

‘It was submitted to us that the facts in that case were so different from those in the instant case that the principle which is expressed in the answer to the Attorney General’s question does not apply to the present circumstances. We disagree. In our judgment the principle as expressed in the reference does apply. Consequently for those reasons the question of consent was immaterial. The judge’s ruling was accordingly correct.’

If, as I, too, consider, the question of consent is immaterial, there are prima facie offences against ss 20 and 47 and the next question is whether there is good reason to add sado-masochistic acts to the list of exceptions contemplated in A-G’s Reference. In my opinion, the answer to that question is No.

In adopting this conclusion I follow closely my noble and learned friends Lord Templeman and Lord Jauncey. What the appellants are obliged to propose is that the deliberate and painful infliction of physical injury should be exempted from the operation of statutory provisions the object of which is to prevent or punish that very thing, the reason for the proposed exemption being that both those who will inflict and those who will suffer the injury wish to satisfy a perverted and depraved sexual desire. Sado-masochistic homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. A relaxation of the prohibitions in ss 20 and 47 can only encourage the practice of homosexual sado-masochism, with the physical cruelty that it must involve, (which can scarcely be regarded as a ‘manly diversion’) by withdrawing the legal penalty and giving the activity a judicial imprimatur. As well as all this, one cannot overlook the physical danger to those who may indulge in sado-masochism. In this connection, and also generally, it is idle for the appellants to claim that they are educated exponents of ‘civilised cruelty’. A proposed general exemption is to be tested by considering the likely general effect. This must include the probability that some sado-masochistic activity, under the powerful influence of the sexual instinct, will get out of hand and result in serious physical damage to the participants and that some activity will involve a danger of infection such as these particular exponents do not contemplate for themselves. When considering the danger of infection, with its inevitable threat of AIDS, I am not impressed by the argument that this threat can be discounted on the ground that, as long ago as 1967, Parliament, subject to conditions, legalised buggery, now a well-known vehicle for the transmission of AIDS.

So far as I can see, the only counter-argument is that to place a restriction on sado-masochism is an unwarranted interference with the private life and activities of persons who are indulging in a lawful pursuit and are doing no harm to anyone except, possibly, themselves. This approach, which has characterised every submission put forward on behalf of the appellants, is derived from the fallacy that what is involved here is the restraint of a lawful activity as opposed to the refusal to relax existing prohibitions in the 1861 Act. If in the course of buggery, as authorised by the 1967 Act, one participant, either with the other participant’s consent or not, deliberately causes actual bodily harm to that other, an offence against s 47 has been committed. The 1967 Act provides no shield. The position is as simple as that, and there is no legal right to cause actual bodily harm in the course of sado-masochistic activity.

As your Lordships have observed, the appellants have sought to fortify their argument by reference to the European Convention on Human Rights (see the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969)). On the view which I have taken, art 7 has no relevance since the question of retrospective legislation or a retrospective judicial decision does not arise. Article 8(1) of the convention states that everyone has the right to respect for his private and family life, his home and his correspondence. The attempt to rely on this article is another example of the appellants’ reversal of the onus of proof of legality, which disregards the effect of ss 20 and 47. I would only say, in the first place, that art 8 is not part of our law. Secondly, there has been no legislation which, being post-convention and ambiguous, falls to be construed so as to conform with the convention rather than to contradict it. And thirdly, if one is looking at art 8(2), no public authority can be said to have interfered with a right (to indulge in sado-masochism) by enforcing the provisions of the 1861 Act. If, as appears to be the fact, sado-masochistic acts inevitably involve the occasioning of at least actual bodily harm, there cannot be a right under our law to indulge in them.

For all these reasons I would answer No to the certified question and would dismiss the appeals.

LORD MUSTILL. My Lords, this is a case about the criminal law of violence. In my opinion it should be a case about the criminal law of private sexual relations, if about anything at all. Right or wrong, the point is easily made. The speeches already delivered contain summaries of the conduct giving rise to the charges under the Offences against the Person Act 1861 now before the House, together with other charges in respect of which the appellants have been sentenced, and no longer appeal. Fortunately for the reader my Lords have not gone on to describe other aspects of the appellants’ behaviour of a similar but more extreme kind which was not the subject of any charge on the indictment. It is sufficient to say that whatever the outsider might feel about the subject matter of the prosecutions—perhaps horror, amazement or incomprehension, perhaps sadness—very few could read even a summary of the other activities without disgust. The House has been spared the video tapes, which must have been horrible. If the criminality of sexual deviation is the true ground of these proceedings, one would have expected that these above all would have been the subject of attack. Yet the picture is quite different.

The conduct of the appellants and of other co-accused was treated by the prosecuting authorities in three ways. First, there were those acts which fell squarely within the legislation governing sexual offences. These are easily overlooked, because attention has properly been concentrated on the charges which remain in dispute, but for a proper understanding of the case it is essential to keep them in view. Thus, four of the men pleaded guilty either as principals or as aiders and abettors to the charges of keeping a disorderly house. It is worth setting out, with abbreviations, the particulars of a typical charge:

‘[GWC] on divers days between the 1st day of January 1979 and the 5th day of November 1987 at … Bolton, kept a disorderly house to which numerous persons resorted in order to take part in, and who did take part in, acts of sadistic and masochistic violence, and in accompanying acts of a lewd, immoral and unnatural kind. [IW, PJG, Colin Laskey and PJK] at the same times and at the same place did aid, abet, counsel and procure [GWC] to commit the said offence.’

Laskey also pleaded guilty to two counts of publishing an obscene article. The articles in question were video tapes of the activities which formed the subject of some of the counts laid under the 1861 Act.

The pleas of guilty to these counts, which might be regarded as dealing quite comprehensively with those aspects of Laskey’s sexual conduct which impinged directly on public order, attracted sentences of four years reduced on appeal to 18 months’ imprisonment and three months’ imprisonment respectively. Other persons, not before the House, were dealt with in a similar way.

The two remaining categories of conduct comprised private acts. Some were prosecuted and are now before the House. Others, which I have mentioned, were not. If repugnance to general public sentiments of morality and propriety were the test, one would have expected proceedings in respect of the most disgusting conduct to be prosecuted with the greater vigour. Yet the opposite is the case. Why is this so? Obviously because the prosecuting authorities could find no statutory prohibition apt to cover this conduct. Whereas the sexual conduct which underlies the present appeals, although less extreme, could at least arguably be brought within ss 20 and 47 of the 1861 Act because it involved the breaking of skin and the infliction of more than trifling hurt.

I must confess that this distribution of the charges against the appellants at once sounds a note of warning. It suggests that the involvement of the 1861 Act was adventitious. This impression is reinforced when one considers the title of the statute under which the appellants are charged, ‘Offences against the Person’. Conduct infringing ss 18, 20 and 47 of the 1861 Act comes before the Crown Court every day. Typically it involves brutality, aggression and violence, of a kind far removed from the appellants’ behaviour which, however worthy of censure, involved no animosity, no aggression, no personal rancour on the part of the person inflicting the hurt towards the recipient and no protest by the recipient. In fact, quite the reverse. Of course we must give effect to the statute if its words capture what the appellants have done, but in deciding whether this is really so it is in my opinion legitimate to assume that the choice of the 1861 Act as the basis for the relevant counts in the indictment was made only because no other statute was found which could conceivably be brought to bear upon them.

In these circumstances I find it easy to share the opinion expressed by Wills J in R v Clarence (1888) 22 QBD 23 at 33, [1886–90] All ER Rep 133 at 137, a case where the accused had consensual intercourse with his wife, he knowing and she ignorant that he suffered from gonorrhoea, with the result that she was infected. The case is of general importance, since the Court for Crown Cases Reserved held that there was no offence under ss 47 and 20, since both sections required an assault, of which the wound or grievous bodily harm was the result, and that no assault was disclosed on the facts. For present purposes, however, I need only quote from the report (22 QBD 23 at 30, [1886–90] All ER Rep 133 at 137):

‘… such considerations lead one to pause on the threshold, and inquire whether the enactment under consideration could really have been intended to apply to circumstances so completely removed from those which are usually understood when an assault is spoken of, or to deal with matters of any kind involving the sexual relation or act.’

I too am led to pause on the threshold. Asking myself the same question, I cannot but give a negative answer. I therefore approach the appeal on the basis that the convictions on charges which seem to me so inapposite cannot be upheld unless the language of the statute or the logic of the decided cases positively so demand. Unfortunately, as the able arguments which we have heard so clearly demonstrate, the language of the statute is opaque, and the cases few and unhelpful. To these I now turn.

I. THE DECIDED CASES

Throughout the argument of the appeal I was attracted by an analysis on the following lines. First, one would construct a continuous spectrum of the infliction of bodily harm, with killing at one end and a trifling touch at the other. Next, with the help of reported cases one would identify the point on this spectrum at which consent ordinarily ceases to be an answer to a prosecution for inflicting harm. This could be called ‘the critical level’. It would soon become plain however that this analysis is too simple and that there are certain types of special situation to which the general rule does not apply. Thus, for example, surgical treatment which requires a degree of bodily invasion well on the upper side of the critical level will nevertheless be legitimate if performed in accordance with good medical practice and with the consent of the patient. Conversely, there will be cases in which even a moderate degree of harm cannot be legitimated by consent. Accordingly, the next stage in the analysis will be to identify those situations which have been identified as special by the decided cases, and to examine them to see whether the instant case either falls within one of them or is sufficiently close for an analogy to be valid. If the answer is negative, then the court will have to decide whether simply to apply the general law simply by deciding whether the bodily harm in the case under review is above or below the critical level, or to break new ground by recognising a new special situation to which the general law does not apply.

For all the intellectual neatness of this method I must recognise that it will not do, for it imposes on the reported cases and on the diversities of human life an order which they do not possess. Thus, when one comes to map out the spectrum of ordinary consensual physical harm, to which the special situations form exceptions, it is found that the task is almost impossible, since people do not ordinarily consent to the infliction of harm. In effect, either all or almost all the instances of the consensual infliction of violence are special. They have been in the past, and will continue to be in the future, the subject of special treatment by the law.

There are other objections to a general theory of consent and violence. Thus, for example, it is too simple to speak only of consent, for it comes in various sorts. Of these, four spring immediately to mind. First, there is an express agreement to the infliction of the injury which was in the event inflicted. Next, there is express agreement to the infliction of some harm, but not to that harm which in the event was actually caused. These two categories are matched by two more, in which the recipient expressly consents not to the infliction of harm, but to engagement in an activity which creates a risk of harm; again, either the harm which actually results, or to something less. These examples do not exhaust the categories, for corresponding with each are situations of frequent occurrence in practice where the consent is not express but implied. These numerous categories are not the fruit of academic over-elaboration, but are a reflection of real life. Yet they are scarcely touched on in the cases, which just do not bear the weight of any general theory of violence and consent.

Furthermore, when one examines the situations which are said to found such a theory it is seen that the idea of consent as the foundation of a defence has in many cases been forced on to the theory, whereas in reality the reason why the perpetrator of the harm is not liable is not because of the recipient’s consent, but because the perpetrator has acted in a situation where the consent of the recipient forms one, but only one, of the elements which make the act legitimate. This concept is clearly expressed in the following extract from the judgment of Robert Goff LJ in Collins v Wilcock [1984] 3 All ER 374 at 378, [1984] 1 WLR 1172 at 1177:

‘We are here concerned primarily with battery. The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery. So Holt CJ held in 1704 that “the least touching of another in anger is a battery”: see Cole v Turner (1704) Holt KB 108, 90 ER 958. The breadth of the principle reflects the fundamental nature of the interest so protected; as Blackstone wrote in his Commentaries, “the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner” (see 3 Bl Com (17th edn, 1830) 120). The effect is that everybody is protected not only against physical injury but against any form of physical molestation. But so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime. But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped (see Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684). Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is “angry, or revengeful, or rude, or insolent” (see 1 Hawk PC (8th edn, 1824) ch 15, s 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception.’

In these circumstances I must accept that the existing case law does not sustain a step-by-step analysis of the type proposed above. This being so I have considered whether there is some common feature of those cases in which consent has been held ineffectual whose presence or absence will furnish an immediate solution when the court is faced with a new situation. The only touchstone of this kind suggested in argument was the notion of ‘hostility’ without which, as Mr Kershen QC maintained, no offence of violence can be made out. This argument, which equates hostility with antagonism, is attractive because antagonism felt by the perpetrator against the recipient, and expressed in terms of violence, is present in the great majority of the offences dealt with by the courts under the 1861 Act. Nevertheless I cannot accept it as a statement of the existing law which leads automatically to a conclusion on the present appeals. It is true that counsel was able to cite a series of cases on indecent conduct with consenting children, beginning with Fairclough v Whipp [1951] 2 All ER 832, in which the absence of hostility formed a ground for holding that indecent assaults were not proved. It is however clear to my mind that whatever precise meaning the word was intended to bear in the judgments there delivered it must have been different from the one for which Mr Kershen now contends. The facts were far removed from the present, for the accused persons did nothing to the children but merely persuaded them to do certain acts. They used no force, nor inflicted any physical harm. It is not surprising that no assault was made out, and the decisions do no more than furnish a useful reminder of the care to be taken before punishing repugnant sexual conduct under laws aimed at violence. Furthermore this theory does not fit the situations at the upper end of the scale. The doctor who hastens the end of a patient to terminate his agony acts with the best intentions, and quite without hostility to him in any ordinary sense of the word, yet there is no doubt that notwithstanding the patient’s consent he is guilty of murder. Nor has it been questioned on the argument of the present appeal that someone who inflicts serious harm, because (for example) he is inspired by a belief in the efficacy of a pseudo-medical treatment, or acts in conformity with some extreme religious tenet, is guilty of an offence notwithstanding that he is inspired only by a desire to do the best he can for the recipient. Hostility cannot, as it seems to me, be a crucial factor which in itself determines guilt or innocence, although its presence or absence may be relevant when the court has to decide as a matter of policy how to react to a new situation.

I thus see no alternative but to adopt a much narrower and more empirical approach, by looking at the situations in which the recipient consents or is deemed to consent to the infliction of violence upon him, to see whether the decided cases teach us how to react to this new challenge. I will take them in turn.

1. Death

With the exception of a few exotic specimens which have never come before the courts, euthanasia is in practice the only situation where the recipient expressly consents to being killed. As the law stands today, consensual killing is murder. Why is this so? Professor Glanville Williams (Textbook of Criminal Law (2nd edn, 1983) pp 579–580, §25.16) suggests that the arguments in support are transcendental, and I agree. Believer or atheist, the observer grants to the maintenance of human life an overriding imperative, so strong as to outweigh any consent to its termination. Some believers and some atheists now dissent from this view, but the controversy as to the position at common law does not illuminate our present task, which is to interpret a statute which is aimed at non-lethal violence.

Nor is anything gained by a study of duelling, an activity in which the recipient did not consent to being killed (quite the reverse) but did consent to running the risk. The nineteenth century authorities were not too concerned to argue the criminality of the practice as between principals, but to stamp out this social evil by involving in the criminality those others, such as seconds and surgeons, who helped to perpetuate it. A series of nineteenth century cases, such as R v Rice (1803) 3 East 581, 102 ER 719, reiterated that the dueller who inflicted the fatal wound was guilty of murder, whether he was the challenger or not, and regardless of the fact that the deceased willingly took the risk, but by then it was already very old law—certainly as old as R v Taverner (1619) 3 Bulstr 171, 81 ER 144 where Coke CJ and Croke J expounded the heinousness of the offence with copious reference to the ancients and to Holy Scripture. Killing in cold blood was the sin of Cain, and that was that. There is nothing to help us here.

2. Maiming

The act of maiming consisted of ‘such a hurt of any part of a man’s body, whereby he is rendered less able, in fighting either to defend himself or to annoy his adversary’ (see 1 Hawk PC (8th edn, 1824) ch 15, p 107, s 1). Maiming was a felony at common law. Self-maiming was also a crime, and consent was no defence to maiming by another. Maiming was also, in certain circumstances, a statutory offence under a series of Acts, now repealed, beginning with the so-called ‘Coventry Act’ (22 & 23 Car 2 c 1 (1670) (maiming)), and continuing as part of a more general prohibition of serious offences against the person until an 1803 Act (43 Geo 3 c 58 (malicious shooting or stabbing)). Then it seems to have disappeared. There is no record of anyone being indicted for maim in modern times, and I doubt whether maiming would have been mentioned in the present case but for the high authority of Sir James Fitzjames Stephen, who as late as 1883, in his Digest of the Criminal Law (3rd edn) pp 141–142, art 206, stated: ‘Everyone has a right to consent to the infliction upon himself of bodily harm not amounting to a maim.’ No reported decision or statute was cited in support of this proposition, and the reasoning (according to a footnote) rested upon the assertion that below the level of maiming an injury was no more than an assault, to which consent was a defence.

My Lords, I cannot accept that this antique crime any longer marks a watershed for the interrelation of violence and consent. In the first place the crime is obsolete. The 1861 Act says nothing about it, as it must have done if Parliament had intended to perpetuate maiming as a special category of offence. Furthermore, the rationale of maiming as a distinct offence is now quite out of date. Apparently the permanent disablement of an adult male was criminal because it cancelled him as a fighting unit in the service of his King. I think it impossible to apply this reasoning to the present case.

Finally, the practical results of holding that maim marks the level at what consent ceases to be relevant seem to me quite unacceptable. The point cannot be better made than in terms of the only illustration given by Stephen J in art 206 of his work: ‘It is a maim to strike out a front tooth. It is not a maim to cut off a man’s nose.’ Evidently consent would be a defence in the latter instance, but not in the former. This is not in my view a sound basis for a modern law of violence.

3. Prize-fighting, sparring and boxing

Far removed as it is from the present appeal, I must take a little time over prize-fighting, for it furnishes in R v Coney (1882) 8 QBD 534 one of the very few extended judicial analyses of the relationship between violence and consent. By the early part of the nineteenth century it was firmly established that prize-fighting was unlawful notwithstanding the consent of the fighters. It nevertheless continued to flourish. It is therefore not surprising to find that the few and meagrely reported early cases at nisi prius were concerned with the efforts of the courts to stamp out the practice by prosecuting those who were thought to encourage it by acting as seconds or promoters, or just by being present. Although it was at that stage taken for granted that the activity was criminal per se, it is significant that in almost all the cases the accused were charged with riot, affray or unlawful assembly, and that emphasis was given to the tendency of prize-fights to attract large and unruly crowds. We encounter the same theme when at a later stage, in cases such as R v Coney (1882) 8 QBD 534, R v Young (1866) 31 JP 215 and R v Orton (1878) 39 LT 293, the courts were forced to rationalise the distinction between prize-fighting (unlawful) and sparring between amateurs (lawful). Of these cases much the most important was R v Coney. Burke and Mitchell fought in a ring of posts and ropes on private land a short distance from a highway. Upwards of 100 people were present. There was no evidence that the fight was for money or reward. Coney, Gilliam and Tully were in the crowd. Originally, Burke, Mitchell and three spectators and others who did not appeal were charged under an indictment which contained counts against all the accused for riot and other offences against public order, but these were dropped and the trial proceeded on two counts alone, one alleging (against all the accused except Burke) a common assault upon Burke, and the other a kindred count relating to Mitchell. The chairman of quarter sessions left to the jury the question whether this was a prize-fight, with a direction that if so it was illegal and an assault. He also directed that all persons who go to a prize-fight to see the combatants strike each other and who are present when they do so are guilty of an assault. The jury convicted all the accused. The chairman stated for decision by the Court of Crown Cases Reserved the question whether in relation to the three last-named accused his direction was right.

Two issues arose. First, whether the fighting between Burke and Mitchell was an assault. If it was not, none of the accused were guilty of any offence. Second, whether the direction as to the participation of the other three appellants as aiders and abettors was correct. The court was divided on the second issue. But on the first all the judges were agreed that if the proceedings constituted a prize-fight then Burke and Mitchell were guilty of assault irrespective of the fact that they had agreed to fight.

Even at first sight it is clear that this decision involved something out of the ordinary, for the accused were charged, not with any of the serious offences of violence under the 1861 Act but with common assault; and as all concerned in the argument of the present appeal have agreed, in common with the judges in R v Coney itself, consent is usually a defence to such a charge. Furthermore it seems that the degree of harm actually inflicted was thought to be immaterial, for no reference was made to it in the case stated by quarter sessions or (except tangentially) in the judgments of the court. What then was the basis for holding that a prize-fight stood outside the ordinary rules of criminal violence? Of the 11 judges only five went further than to say that the law was well-established. Their reasons were as follows. (1) Prize-fighting is a breach of the peace. The parties may consent to the infliction of blows as a civil wrong, but cannot prevent a breach of the peace from being criminal (see 8 QBD 534 at 538, 549, 553, 567 per Cave, Stephen, Hawkins JJ and Lord Coleridge CJ respectively). As Stephen J put it, prize-fights were ‘disorderly exhibitions, mischievous on many obvious grounds’. (2) The participants are at risk of suffering ferocity and severe punishment, dreadful injuries and endangerment of life, and are encouraged to take the risk by the presence of spectators. It is against the public interest that these risks should be run, whether voluntarily or not (see per Cave and Mathew JJ (at 539, 544)). (3) Fists are dangerous weapons like pistols, and prize-fighting should be proscribed for the same reasons as duelling (see per Mathew J (at 547)).

My Lords, there is nothing here to found a general theory of consensual violence. The court simply identifies a number of reasons why as a matter of policy a particular activity of which consent forms an element should found a conviction for an offence where the level of violence falls below what would normally be the critical level. As Stephen J made clear, the question whether considerations of policy are strong enough to take the case outside the ordinary law depends on whether ‘the injury is of such nature or is inflicted under such circumstances that its infliction is injurious to the public’ (at 549). Speaking of duels, Bramwell LJ was later to say in R v Bradshaw (1878) 14 Cox CC 83, at 84–85:

‘… no person can by agreement go out to fight with deadly weapons, doing by agreement what the law says shall not be done, and thus shelter themselves from the consequences of their acts.’ (My emphasis.)

Precisely the same reliance on an empirical or intuitive reference to public policy in substitution for any theory of consent and violence are seen in discussions of amateur sparring with fists and other sports which involve the deliberate infliction of harm. The matter is put very clearly in East’s Pleas of the Crown (1 East PC (1803) ch v, §§ 41–42, pp 268–270):

‘… if death ensue from such [sports] as are innocent and allowable, the case will fall within the rule of excusable homicide; but if the sport be unlawful in itself, or productive of danger, riot, or disorder, from the occasion, so as to endanger the peace, and death ensue; the party killing is guilty of manslaughter … manly sports and exercises which tend to give strength, activity, and skill in the use of arms, and are entered into merely as private recreations among friends, are not unlawful; and therefore persons playing by consent at cudgels, or foils, or wrestling, are excusable if death ensue. For though doubtless it cannot be said that such exercises are altogether free from danger; yet are they very rarely attended with fatal consequences; and each party has friendly warning to be on his guard. And if the possibility of danger were the criterion by which the lawfulness of sports and recreations were to be decided, many exercises must be proscribed which are in common use, and were never heretofore deemed unlawful … But the latitude given to manly exercises of the nature above described, when conducted merely as diversions among friends, must not be extended to legalise prize fightings, public boxing matches and the like, which are exhibited for the sake of lucre, and are calculated to draw together a number of idle disorderly people … And again, such meetings have a strong tendency in their nature to a breach of the peace …’

In his work on Crown Law (3rd edn, 1809) p 230 Sir Michael Foster put the matter in a similar way when he distinguished beneficial recreations such as single-stick fighting from—

‘prize-fighting and … other exertions of courage, strength and activity … which are exhibited for lucre, and can serve no valuable purpose, but on the contrary encourage a spirit of idleness and debauchery.’

Thus, although consent is present in both cases the risks of serious violence and public disorder make prize-fighting something which ‘the law says shall not be done’, whereas the lesser risk of injury, the absence of the public disorder, the improvement of the health and skills of the participants, and the consequent benefit to the public at large combine to place sparring into a different category, which the law says ‘may be done’.

That the court is in such cases making a value judgment, not dependent upon any general theory of consent is exposed by the failure of any attempt to deduce why professional boxing appears to be immune from prosecution. For money, not recreation or personal improvement, each boxer 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 s 20 of the 1861 Act. 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. I intend no disrespect to the valuable judgment of McInerney J in Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 when I say that the heroic efforts of that learned judge to arrive at an intellectually satisfying account of the apparent immunity of professional boxing from criminal process have convinced me that the task is impossible. 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.

4. ‘Contact’ sports

Some sports, such as the various codes of football, have deliberate bodily contact as an essential element. They lie at a mid-point between fighting, where the participant knows that his opponent will try to harm him, and the milder sports where there is at most an acknowledgement that someone may be accidentally hurt. In the contact sports each player knows and by taking part agrees that an opponent may from time to time inflict upon his body (for example by a rugby tackle) what would otherwise be a painful battery. By taking part he also 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. This simple analysis conceals a number of difficult problems, which are discussed in a series of Canadian decisions, culminating in R v Ciccarelli (1989) 54 CCC (3d) 121, on the subject of ice hockey, a sport in which an ethos of physical contact is deeply entrenched. The courts appear to have started with the proposition that some level of violence is lawful if the recipient agrees to it, and have dealt with the question of excessive violence by inquiring whether the recipient could really have tacitly accepted a risk of violence at the level which actually occurred. These decisions do not help us in the present appeal, where the consent of the recipients was express, and where it is known that they gladly agreed, not simply to some degree of harm but to everything that was done. What we need to know is whether, notwithstanding the recipient’s implied consent, there comes a point at which it is too severe for the law to tolerate. Whilst common sense suggests that this must be so, and that the law will not license brutality under the name of sport, one of the very few reported indications of the point at which tolerable harm becomes intolerable violence is in the direction to the jury given by Bramwell LJ in R v Bradshaw (1878) 14 Cox CC 83 that the act (in this case a charge at football) would be unlawful if intended to cause ‘serious hurt’. This accords with my own instinct, but I must recognise that a direction at nisi prius, even by a great judge, cannot be given the same weight as a judgment on appeal, consequent upon full argument and reflection. The same comment may be made about R v Moore (1898) 14 TLR 229.

5. Surgery

Many of the acts done by surgeons would be very serious crimes if done by anyone else, and yet the surgeons incur no liability. Actual consent, or the substitute for consent deemed by the law to exist where an emergency creates a need for action, is an essential element in this immunity; but it cannot be a direct explanation for it, since much of the bodily invasion involved in surgery lies well above any point at which consent could even arguably be regarded as furnishing a defence. Why is this so? The answer must in my opinion be that proper medical treatment, for which actual or deemed consent is a prerequisite, is in a category of its own.

6. Lawful correction

It is probably still the position at common law, as distinct from statute, that a parent or someone to whom the parent has delegated authority may inflict physical hurt on his or her child, provided that it does not go too far and is for the purpose of correction and not the gratification of passion or rage: see R v Conner (1835) 7 C & P 438, 173 ER 194, R v Cheeseman (1836) 7 C & P 455, 173 ER 202, R v Hopley (1860) 2R v Brown [1993] 2 All ER 75 F & F 202, 175 ER 1024, R v Griffin (1869) 11 Cox CC 402. These cases have nothing to do with consent, and are useful only as another demonstration that specially exempt situations can exist and that they can involve an upper limit of tolerable harm.

7. Dangerous pastimes; bravado; mortification

For the sake of completeness I should mention that the list of situations in which one person may agree to the infliction of harm, or to the risk of infliction of harm by another includes dangerous pastimes, bravado (as where a boastful man challenges another to try to hurt him with a blow) and religious mortification. These examples have little in common with one another and even less with the present case. They do not appear to be discussed in the authorities although dangerous pastimes are briefly mentioned and I see no advantage in exploring them here.

8. Rough horseplay

The law recognises that community life (and particularly male community life), such as exists in the school playground, in the barrack-room and on the factory floor, may involve a mutual risk of deliberate physical contact in which a particular recipient (or even an outsider, as in R v Bruce (1847) 2 Cox CC 262) may come off worst, and that the criminal law cannot be too tender about the susceptibilities of those involved. I think it hopeless to attempt any explanation in terms of consent. This is well illustrated by R v Jones (Terence) (1986) 83 Cr App R 375. The injured children did not consent to being thrown in the air at all, nor to the risk that they might be thrown so high as to cause serious injury. They had no choice. Once again it appears to me that as a matter of policy the courts have decided that the criminal law does not concern itself with these activities, provided that they do not go too far. It also seems plain that as the general social appreciation of what is tolerable and of the proper role of the state in regulating the lives of individuals changes with the passage of time, so we shall expect to find that the assumptions of the criminal justice system about what types of conduct are properly excluded from its scope, and about what is meant by going ‘too far’, will not remain constant. 9. Prostitution

Prostitution may well be the commonest occasion for the voluntary acceptance of the certainty, as distinct from the risk, of bodily harm. It is very different from the present case. There is no pretence of mutual affection. The prostitute, as beater or beaten, does it for money. The dearth of reported decisions on the application of the 1861 Act clearly shows how the prosecuting authorities have (rightly in my view) tended to deal with such cases, if at all, as offences against public order. Only in R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 amongst the English cases, has the criminality of sexual beating been explored.

The facts were as follows. The accused met the complainant and immediately asked her: ‘Where would you like to have your spanking, in Hyde Park or in my garage?’ Previous telephone conversations had made it clear that he wanted to beat her for sexual gratification. She went with him to his garage, where he caned her in a manner which left seven or eight marks indicative, as a medical witness said, of ‘a fairly severe beating’. He was charged with indecent assault and common assault. The defence was that the girl consented and that it was for the prosecution to prove that she did not. The chairman of quarter sessions directed the jury that the vital issue was ‘consent or no consent’, apparently without giving any guidance on burden of proof. After retiring for an hour the jury asked a question about reasonable belief and consent, which again the chairman answered without reference to burden of proof.

The Court of Criminal Appeal (Lord Hewart CJ, Swift and du Parcq JJ) quashed the conviction. The judgment fell into two entirely distinct parts. The first was concerned with the direction on consent and proceeded on the footing that consent was material to guilt and that the burden was on the Crown to disprove it. This part of the judgment concluded ([1934] 2 KB 498 at 506, [1934] All ER Rep 207 at 210):

‘It is, in our view, at least possible that [a correct direction] would have resulted in the acquittal of the appellant, and we are, therefore, compelled to come to the conclusion … that the trial was not satisfactory.’

On the face of it this conclusion was fatal to the conviction, but the court went on to consider an argument for the Crown that this was not so, because on the facts the striking of the girl was not an act for which consent afforded a defence; so that the absence of a proper direction upon it made no difference. On this question the court held that it was for the jury to decide whether the situation was such that the consent of the girl was immaterial, and that since the issue had never been left to the jury and the trial had proceeded on the footing that consent was the key to the case, the appeal ought to be decided on the same basis. Accordingly, the direction on consent being unsatisfactory the conviction must be quashed.

How did the court arrive at the opinion that there was an issue for the jury which ought to have been tried? As I understand it, the course of reasoning was as follows. (1) On the basis of a statement of Cave J in R v Coney (1882) 8 QBD 534 at 539 and the old authorities on which it was founded the court was of the opinion—:

‘If an act is unlawful in the sense of being in itself 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. So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer.’ (See [1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210.)

(2) ‘There are, however, many acts in themselves harmless and lawful which become unlawful only if they are done without the consent of the person affected’ (see [1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210). (3) ‘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, and when such an act is proved, consent is immaterial’ (see [1934] 2 KB 498 at 507, [1934] All ER Rep 207 at 210). (4) The former distinction between maim and other types of injury was out of date. Beating with the intent of doing some bodily harm is malum in se to which consent is not a defence. (5) There are exceptions to this general rule, such as sparring, sport or horseplay. (6) But what happened in the instant case did not fall within any of the established exceptions. (7) For the purpose of the general rule bodily injury meant any hurt or injury calculated to interfere with the health or comfort of the prosecutor; it need not be permanent, but must be more than merely transient or trifling. (8) It was for the jury to decide whether the appellant had inflicted or intended to inflict bodily injury in this sense.

My Lords, the first two of these propositions have more than once been criticised as tautologous. I do not accept this, but will not stay to discuss the point for its seems to me that they are right, as the instances of prize-fighting and duelling make plain, and as all the counsel appearing in the present appeal have agreed. The law simply treats some acts as criminal per se irrespective of consent.

It is with the next stages in the reasoning that I part company. Donovan was charged only with indecent assault, and the latter is an offence to which, it is common ground, consent is a defence. Yet the Court of Criminal Appeal proceeded on the basis that the critical level of violence was that of actual bodily harm, and that the jury should have been directed to decide whether he was guilty of facts establishing an offence under s 47 of the 1861 Act: an offence with which he had not been charged. There is something amiss here. What is amiss is that the dictum of Cave J in R v Coney and the old cases said to support it are taken out of their context, which was in each instance the kind of battery regarded for reasons of public policy as being in a special category which is automatically criminal. Plainly the court in R v Donovan did not put the beating of the complainant into that category, or the appeal would have taken a quite different course. All that the court had to say about the nature of the beating was that it was not, as the present appellants would have us say, in a category which is automatically innocent.

10. Fighting

I doubt whether it is possible to give a complete list of the situations where it is conceivable that one person will consent to the infliction of physical hurt by another, but apart from those already mentioned only one seems worth considering, namely what one may call ‘ordinary’ fighting. This was the subject of A-G’s Reference (/No 6 of 1980/) [1981] 2 All ER 1057, [1981] QB 715. The accused fell into an argument with another youth in a street. They agreed to settle it there and then by a fight, which they did, and as a result the other person suffered a bleeding nose and a bruised face. The accused was charged with common assault. There was no evidence that anyone was present except one bystander, nor that there was any public disorder other than the fight itself. The judge directed the jury that the fight did not necessarily amount to an assault, and that they should consider whether it was a case of both parties agreeing to fight and use only reasonable force. The Attorney General referred for the opinion of the Court of Appeal the question—

‘Where two persons fight (otherwise than in the course of sport) in a public place can it be a defence for one of those persons to a charge of assault arising out of the fight that the other consented to fight?’

When answering this question the court consciously broke new ground. No reliance was placed on the unsystematic old cases on sparring, or on R v Donovan, or even as I understand it on R v Coney, except as showing that public interest may demand a special response to a special situation. Indeed, the protection of public order, which had been the principal ground for the recognition of prize-fighting as a special category in R v Coney was explicitly discarded. Instead, the court began by stating that in general consent is a defence to a charge of assault, and went on to observe that there might be cases where the public interest demanded otherwise. Such a case existed ‘where people … try to cause or … cause each other bodily harm for no good reason’ (see [1981] 2 All ER 1057 at 1059, [1981] QB 715 at 719).

My Lords, I am not sure that I can detect here the inconsistency for which this judgment has been criticised. Perhaps it is unduly complicated to suggest that the public interest might annul the defence of consent in certain situations and then in the shape of ‘good reason’ recreate it. Nevertheless I am very willing to recognise that the public interest may sometimes operate in one direction and sometimes in the other. But even if it be correct that fighting in private to settle a quarrel is so much against the public interest as to make it automatically criminal even if the fighter is charged only with assault (a proposition which I would wish to examine more closely should the occasion arise), I cannot accept that the infliction of bodily harm, and especially the private infliction of it, is invariably criminal absent some special factor which decrees otherwise. I prefer to address each individual category of consensual violence in the light of the situation as a whole. Sometimes the element of consent will make no difference and sometimes it will make all the difference. Circumstances must alter cases. For these reasons I consider that the House is free, as the Court of Appeal in the present case was not (being bound by A-G’s Reference (No 6 of 1980)), to consider entirely afresh whether the public interest demands the interpretation of the 1861 Act in such a way as to render criminal under s 47 the acts done by the appellants.

II. AN UNLAWFUL ACT

A question has arisen, not previously canvassed, whether the appellants are necessarily guilty because their acts were criminal apart from the Offences against the Person Act 1861, and that accordingly a defence of consent which might otherwise have been available as an answer to a charge under s 47 is to be ruled out. This proposition if correct will have some strange practical consequences. First of all, it means that solely because the appellants were guilty of offences under the Sexual Offences Act 1967, with which they had not been charged and of which they could not (because of the time limit) be convicted they can properly be convicted of crimes of violence under a different statute carrying a much larger maximum penalty. The logic of this argument demands that if the prosecution can show that a sexual harming constitutes some other offence, however trifling and however different in character, the prosecution will be able to establish an offence of common assault or an offence under the 1861 Act, even if in its absence the defendant would not be guilty of any offence at all. Surely this cannot be right.

Moreover, if one returns to offences of the present kind further practical anomalies may be foreseen. Not all grossly indecent acts between males are indictable under the Sexual Offences Act 1956. Thus, if the criminality of conduct such as the present under the Offences against the Person Act 1861 is to depend on whether the conduct is criminal on other grounds, one would find that the penal status of the acts for the purposes of s 47 would depend upon whether they were done by two adult males or three adult males. I can understand why, in relation to a homosexual conduct, Parliament has not yet thought fit to disturb the compromise embodied in the Sexual Offences Act 1967, but am quite unable to see any reason to carry a similar distinction into the interpretation of a statute passed a century earlier, and aimed at quite different evil. Since the point was not raised before the trial judge, and the House has properly not been burdened with all the committal papers, it is impossible to tell whether, if advanced, it might have affected the pleas offered and accepted at the Central Criminal Court, but its potential for creating anomalies in other cases seems undeniable.

I would therefore accede to this argument only if the decided cases so demand. In my opinion they do not, for I can find nothing in them to suggest that the consensual infliction of hurt is transmuted into an offence of violence simply because it is chargeable as another offence. Even in the prize-fighting cases, which come closest to this idea, the tendency of these events to attract a disorderly crowd was relevant not because the fighters might have been charged, if anyone had cared to do so, with the separate offence of causing a breach of the peace, but rather because this factor was a reason why the events were placed as a matter of policy in a category which the law treated as being in itself intrinsically unlawful notwithstanding the presence of consent. I am satisfied that it was in this sense that the courts made reference to the unlawfulness of the conduct under examination, and not to its criminality aliunde.

III. THE EUROPEAN CONVENTI0N ON HUMAN RIGHTS

The appellants relied on the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) for two reasons. First, because it was said to support an argument that the law as it now stood should be interpreted or developed in a sense favourable to the appellants, and, secondly, because in the event of failure before the House the appellants intend to pursue the matter before the European Court of Human Rights, and for this purpose must show that their local remedies have been exhausted.

Two provisions of the convention are called in aid. The first is art 7, the proposition being that the convictions cannot be upheld without making the appellants guilty in respect of acts which were not criminal when they were committed. I am satisfied that this argument is unsound. Many of the acts relied on took place after the decision in A-G’s Reference(No 6 of 1980) [1981] 2 All ER 1057, [1981] QB 715, and all of them long postdated R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207. The ruling of the trial judge was perfectly comprehensible in the light of these and other decisions. The law was being applied as it was then understood. If the view which I now propose were to prevail the law would be understood differently. If this happened the appeals would succeed, without any reference to art 7. And if, as I understand to be the case, your Lordships hold that on the law as it already exists the trial judge’s ruling was right, there is no change of any kind, whether retrospective or otherwise, that could possibly infringe art 7.

The second argument, ably presented by Miss Sharpston, is altogether more substantial. Not of course because the enunciation of a qualified right of privacy in art 8 leads inexorably to a conclusion in the appellants’ favour, since even after all these years the United Kingdom has still failed to comply with its treaty obligation to enact the convention. Nor because I consider that the individual provisions of the convention will always point unequivocally to the right answer in a particular case. Far from it. Emphasis on human duties will often yield a more balanced and sharply-focused protection for the individual than the contemporary preoccupation with human rights. The sonorous norms of the convention, valuable as they unquestionably are in recalling errant states to their basic obligations of decency towards those in their power, are often at the same time too general and too particular to permit a reasoned analysis of new and difficult problems. Article 8 provides a good example. The jurisprudence with which this article, in common with other terms of the convention, is rapidly becoming encrusted shows that in order to condemn acts which appear worthy of censure they have had to be forced into the mould of art 8, and referred to the concept of privacy, for want of any other provision which will serve. I do not deny that the privacy of the conduct was an important element in the present case, but I cannot accept that this fact on its own can yield an answer.

Nevertheless, I believe that the general tenor of the decisions of the European Court of Human Rights does furnish valuable guidance on the approach which the English courts should adopt, if free to do so, and I take heart from the fact that the European authorities, balancing the personal considerations invoked by art 8(1) against the public interest considerations called up by art 8(2), clearly favour the right of the appellants to conduct their private lives undisturbed by the criminal law: a conclusion at which I have independently arrived for reasons which I must now state.

IV. PUBLIC POLICY

The purpose of this long discussion has been to suggest that the decks are clear for the House to tackle completely anew the question whether the public interest requires s 47 of the 1861 Act to be interpreted as penalising an infliction of harm which is at the level of actual bodily harm, but not grievous bodily harm; which is inflicted in private (by which I mean that it is exposed to the view only of those who have chosen to view it); which takes place not only with the consent of the recipient but with his willing and glad co-operation; which is inflicted for the gratification of sexual desire, and not in a spirit of animosity or rage; and which is not engaged in for profit.

My Lords, I have stated the issue in these terms to stress two considerations of cardinal importance. Lawyers will need no reminding of the first, but since this prosecution has been widely noticed it must be emphasised that the issue before the House is not whether the appellants’ conduct is morally right, but whether it is properly charged under the 1861 Act. When proposing that the conduct is not rightly so charged I do not invite your Lordships’ House to indorse it as morally acceptable. Nor do I pronounce in favour of a libertarian doctrine specifically related to sexual matters. Nor in the least do I suggest that ethical pronouncements are meaningless, that there is no difference between right and wrong, that sadism is praiseworthy, or that new opinions on sexual morality are necessarily superior to the old, or anything else of the same kind. What I do say is that these are questions of private morality; that the standards by which they fall to be judged are not those of the criminal law; and that if these standards are to be upheld the individual must enforce them upon himself according to his own moral standards, or have them enforced against him by moral pressures exerted by whatever religious or other community to whose ethical ideals he responds. The point from which I invite your Lordships to depart is simply this, that the state should interfere with the rights of an individual to live his or her life as he or she may choose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large. Thus, whilst acknowledging that very many people, if asked whether the appellants’ conduct was wrong, would reply ‘Yes, repulsively wrong’, I would at the same time assert that this does not in itself mean that the prosecution of the appellants under ss 20 and 47 of the Offences against the Person Act 1861 is well founded.

This point leads directly to the second. As I have ventured to formulate the crucial question, it asks whether there is good reason to impress upon s 47 an interpretation which penalises the relevant level of harm irrespective of consent: ie to recognise sado-masochistic activities as falling into a special category of acts, such as duelling and prize-fighting, which ‘the law says shall not be done’. This is very important, for if the question were differently stated it might well yield a different answer. In particular, if it were to be held that as a matter of law all infliction of bodily harm above the level of common assault is incapable of being legitimated by consent, except in special circumstances, then we would have to consider whether the public interest required the recognition of private sexual activities as being in a specially exempt category. This would be an altogether more difficult question and one which I would not be prepared to answer in favour of the appellants, not because I do not have my own opinions upon it but because I regard the task as one which the courts are not suited to perform, and which should be carried out, if at all, by Parliament after a thorough review of all the medical, social, moral and political issues, such as was performed by the Wolfenden Committee (see the Report of the Committee on Homosexual Offences and Prostitution (Cmnd 247 (1957)). Thus, if I had begun from the same point of departure as my noble and learned friend Lord Jauncey of Tullichettle I would have arrived at a similar conclusion; but differing from him on the present state of the law, I venture to differ.

Let it be assumed however that we should embark upon this question. I ask myself, not whether as a result of the decision in this appeal, activities such as those of the appellants should cease to be criminal, but rather whether the 1861 Act (a statute which I venture to repeat once again was clearly intended to penalise conduct of a quite different nature) should in this new situation be interpreted so as to make it criminal. Why should this step be taken? Leaving aside repugnance and moral objection, both of which are entirely natural but neither of which are in my opinion grounds upon which the court could properly create a new crime, I can visualise only the following reasons.

(1) Some of the practices obviously created a risk of genito-urinary infection, and others of septicaemia. These might indeed have been grave in former times, but the risk of serious harm must surely have been greatly reduced by modern medical science.
(2) The possibility that matters might get out of hand, with grave results. It has been acknowledged throughout the present proceedings that the appellants’ activities were performed as a prearranged ritual, which at the same time enhanced their excitement and minimised the risk that the infliction of injury would go too far. Of course things might go wrong and really serious injury or death might ensue. If this happened, those responsible would be punished according to the ordinary law, in the same way as those who kill or injure in the course of more ordinary sexual activities are regularly punished. But to penalise the appellants’ conduct even if the extreme consequences do not ensue, just because they might have done so, would require an assessment of the degree of risk, and the balancing of this risk against the interests of individual freedom. Such a balancing is in my opinion for Parliament, not the courts; and even if your Lordships’ House were to embark upon it the attempt must in my opinion fail at the outset for there is no evidence at all of the seriousness of the hazards to which sado-masochistic conduct of this kind gives rise. This is not surprising, since the impressive argument of Mr Purnell QC for the Crown did not seek to persuade your Lordships to bring the matter within the 1861 Act on the ground of special risks, but rather to establish that the appellants are liable under the general law because the level of harm exceeded the critical level marking off criminal from non-criminal consensual violence which he invited your Lordships to indorse.
(3) I would give the same answer to the suggestion that these activities involved a risk of accelerating the spread of auto-immune deficiency syndrome (AIDS), and that they should be brought within the 1861 Act in the interests of public health. The consequence would be strange, since what is currently the principal cause for the transmission of this scourge, namely consenting buggery between males, is now legal. Nevertheless, I would have been compelled to give this proposition the most anxious consideration if there had been any evidence to support it. But there is none, since the case for the Crown was advanced on an entirely different ground.
(4) There remains an argument to which I have given much greater weight. As the evidence in the present case has shown, there is a risk that strangers (and especially young strangers) may be drawn into these activities at an early age and will then become established in them for life. This is indeed a disturbing prospect but I have come to the conclusion that it is not a sufficient ground for declaring these activities to be criminal under the 1861 Act. The element of the corruption of youth is already catered for by the existing legislation; and if there is a gap in it which needs to be filled the remedy surely lies in the hands of Parliament, not in the application of a statute which is aimed at other forms of wrongdoing. As regards proselytisation for adult sado-masochism the argument appears to me circular. For if the activity is not itself so much against the public interest that it ought to be declared criminal under the 1861 Act then the risk that others will be induced to join in cannot be a ground for making it criminal.

Leaving aside the logic of this answer, which seems to me impregnable, plain humanity demands that a court addressing the criminality of conduct such as that of the present should recognise and respond to the profound dismay which all members of the community share about the apparent increase of cruel and senseless crimes against the defenceless. Whilst doing so I must repeat for the last time that in the answer which I propose I do not advocate the decriminalisation of conduct which has hitherto been a crime; nor do I rebut a submission that a new crime should be created, penalising this conduct, for Mr Purnell has rightly not invited the House to take this course. The only question is whether these consensual private acts are offences against the existing law of violence. To this question I return a negative response.

V. CONCLUS10N

Accordingly I would allow these appeals and quash such of the convictions as are now before the House.

LORD SLYNN OF HADLEY. My Lords, the Court of Appeal, Criminal Division when granting leave to the appellants to appeal to the House of Lords certified that a point of law of general importance was involved in its decision to dismiss the appeal, namely:

‘Where A wounds or assaults B occasioning him actual bodily harm in the course of a sadomasochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A’s guilt under section 20 and section 47 of the 1861, Offences Against the Person Act?’

By s 20: ‘Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person … shall be liable [to imprisonment]’ and by s 47: ‘Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable [to imprisonment].’ The trial judge ruled as a preliminary issue that:

‘1. It is an assault deliberately to strike or touch another person other than in self-defence with the intention thereby to cause bodily harm, or a fortiori so to act so that bodily harm is thereby caused intentionally or recklessly. 2. Such an act or touching can be excused on the grounds that it was lawfully carried out. Therefore whether consent is an element of the offence itself, or whether it is to be treated as a defence in exception to the general rule that I have stated, it is, accordingly, in some cases a defence to the charge that the subject consented. The circumstances of this case do not permit these defendants to rely on consent as a defence in law if any of them have carried out acts satisfying the conditions under my first heading.’

On the basis of that ruling the appellants pleaded guilty to the charges under s 47 of the 1861 Act (actual bodily harm) and to wounding (though not to inflicting grievous bodily harm) under s 20 of that Act.

Some of the appellants and certain others also pleaded guilty to other offences concerned with keeping a disorderly house, for which longer sentences were imposed than those on the assault charges, and with the publication and possession of obscene or indecent articles, for which sentences of imprisonment were also imposed.

The argument on both sides has proceeded on the basis of earlier authorities that bodily harm means any hurt or injury that is calculated to or does interfere with the health or comfort of the subject but must be more than transient or trifling, that grievous bodily harm means really serious bodily harm and that wounding involves the breaking of the whole skin. Common assault would include any physical touching which did not fall within these categories.

The facts upon which the convictions under appeal were based are sufficiently and clearly set out in the judgment of Lord Lane CJ and fortunately it is not necessary to repeat them. Nor is it necessary to refer to other facts which are mentioned in the papers before the House which can only add to one’s feeling of revulsion and bewilderment that anyone (in this case men, in other cases mutatis mutandis, men and women or women) should wish to do or to have done to him or her the acts so revealed. Some of those other facts, though no less revolting to most people than the facts set out in the charges, could not possibly have constituted an assault in any of the degrees to which I have referred.

The determination of the appeal, however, does not depend on bewilderment or revulsion or whether the right approach for the House in the appeal ought to be liberal or otherwise. The sole question is whether, when a charge of assault is laid under the two sections in question, consent is relevant in the sense either that the prosecution must prove a lack of consent on the part of the person to whom the act is done or that the existence of consent by such person constitutes a defence for the person charged.

If, as seems clear on previous authority, it was a general rule of the common law that any physical touching could constitute a battery, there was an exception where the person touched expressly or impliedly consented. As Robert Goff LJ put it in Collins v Wilcock [1984] 3 All ER 374 at 378, [1984] 1 WLR 1172 at 1177: ‘Generally speaking, consent is a defence to battery …’ As the word ‘generally’ suggests, the exception was itself subject to exceptions. Thus in Stephen’s Digest of the Criminal Law (3rd edn, 1883) pp 141–142, art 206 it is stated: ‘Every one has a right to consent to the infliction upon himself of bodily harm not amounting to a maim.’ By way of footnote it is explained: ‘Injuries short of maims are not criminal at common law unless they are assaults, but an assault is inconsistent with consent.’ Maim could not be the subject matter of consent since it rendered a man less able to fight or defend himself (see 1 Hawkin’s Pleas of the Crown (8th edn, 1824) p 107, s 1). Nor could a person consent to the infliction of death (see Stephen’s Digest of the Criminal Law (3rd edn, 1883) p 142, art 207) or to an infliction of bodily harm in such manner as to amount to a breach of the peace (art 208). It was ‘uncertain to what extent any person has a right to consent to his being put in danger of death or bodily harm by the act of another’ (art 209), where the example given suggests that dangerous acts rendering serious bodily harm likely were contemplated.

The law has recognised cases where consent, expressed or implied, can be a defence to what would otherwise be an assault and cases where consent cannot be a defence. The former include surgical operations, sports, the chastisement of children, jostling in a crowd, but all subject to a reasonable degree of force being used, tattooing and ear-piercing; the latter include death and maiming. None of these situations, in most cases pragmatically accepted, either covers or is analogous to the facts of the present case.

It is, however, suggested that the answer to the question certified flows from the decisions in three cases.

The first is R v Coney (1882) 8 QBD 534. This is a somewhat remarkable case in that not only the two participants in a prize-fight but a number of observers were convicted of a common assault. The case was said to be relevant to the present question since it was decided that consent was not a defence to common assault. It is, however, accepted in the present appeal that consent can be a defence to common assault. Moreover it is plain from the judgment as a whole that a fight of this kind, since in public, either did, or had a direct tendency to, create a breach of the peace. It drew large crowds who gambled, who might have got excited and have fought among themselves. Moreover it was plain that such fights were brutal—the fighters went out to kill or very gravely injure their opponents and they fought until one of them died or was very gravely injured. As Mathew J put it (at 544):

‘… the chief incentive to the wretched combatants to fight on until (as happens too often) dreadful injuries have been inflicted and life endangered or sacrificed, is the presence of spectators watching with keen interest every incident of the fight.’

This emphasis on the risk of a breach of the peace and the great danger to the combatants is to be found in all of the judgments in the case (for example, at 538, 544, 546, 554, 562, 567). I cite only the judgment of Stephen J (at 549):

‘The principle as to consent seems to me to be this: When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults.’

The second case is R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207. Here the appellant, in private for his sexual gratification, caned a girl, who consented and was paid. The appeal was allowed because the question of consent was not left to the jury, yet it was said that, if the act done was itself unlawful, consent to the act could not be a defence. This, however, was a long way from R v Coney, upon which the essential passage in the judgment was largely based, where the act was held to be unlawful in all circumstances regardless of consent. In R v Donovan there was accepted to be an issue for the jury as to whether the prosecution had proved that the girl had not consented and whether the consent was immaterial.

The third case is A-G’s Reference(No 6 of 1980) [1981] 2 All ER 1057, [1981] QB 715. Here two youths fought following an argument. There was one bystander but no suggestion of public disorder as in R v Coney. If the judgment had been limited to the fact that the fight took place in public then there would clearly have been a possibility of a breach of the peace being caused; but the court laid down that even consensual fighting in private constitutes an assault on the basis that consent is no defence where ‘people … try to cause or … cause each other bodily harm for no good reason’ (see [1981] 2 All ER 1057 at 1059, [1981] QB 715 at 719).

I am not satisfied that fighting in private is to be treated always and necessarily as so much contrary to the public interest that consent cannot be a defence. In any event I think that the question of consent in regard to a fight needs special consideration. If someone is attacked and fights back he is not to be taken as consenting in any real sense. He fights to defend himself. If two people agree to fight to settle a quarrel the persons fighting may accept the risk of being hurt; they do not consent to serious hurt, on the contrary the whole object of the fight is to avoid being hurt and to hurt the opponent. It seems to me that the notion of ‘consent’ fits ill into the situation where there is a fight. It is also very strange that a fight in private between two youths where one may, at most, get a bloody nose should be unlawful, whereas a boxing match where one heavyweight fighter seeks to knock out his opponent and possibly do him very serious damage should be lawful.

Accordingly I do not consider that any of these three cases is conclusive in resolving the present question.

These decisions are not in any event binding upon your Lordships’ House and the matter has to be considered as one of principle.

Three propositions seem to me to be clear.

It is ‘… inherent in the conception of assault and battery that the victim does not consent’ (see Glanville Williams ‘Consent and Public Policy’ [1962] Crim LR 74 at 75). Secondly, consent must be full and free and must be as to the actual level of force used or pain inflicted. Thirdly, there exist areas where the law disregards the victim’s consent even where that consent is freely and fully given. These areas may relate to the person (eg a child); they may relate to the place (eg in public); they may relate to the nature of the harm done. It is the latter which is in issue in the present case.

I accept that consent cannot be said simply to be a defence to any act which one person does to another. A line has to be drawn as to what can and as to what cannot be the subject of consent. In this regard it is relevant to recall what was said by Stephen J in R v Coney (1882) 8 QBD 534 at 549. Even though he was referring to the position at common law, his words seem to me to be of relevance to a consideration of the statute in question.

‘In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used that, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football, and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances.’

There are passages in the judgment of McInerney J in the Australian case of Pallante v Stadiums Pty Ltd(No 1) [1976] VR 331, where a boxing match was in issue, which also seem to me to be helpful. Thus (at 340):

‘It is easy to understand the proposition that if the harm to which consent is alleged to have been given is really grievous, as, for instance, in a case of maiming, the consent should be treated as nugatory: see, for instance, Stephen’s Digest of Criminal Law (7th edn, 1926, art 290). In Cross and Jones’ “/An Introduction to Criminal Law/” (7th edn, 1972, p 40) it is suggested as a reason for this conclusion that the injured person is likely to become the charge of society. This may be a good enough reason, though I would think it is not the primary reason. The primary reason, I would think, is that, as a general proposition, it injures society if a person is allowed to consent to the infliction on himself of such a degree of serious physical harm … Grievous bodily harm is now to be understood as meaning “really serious bodily harm”. So understood, the dictum of Stephen, J., in Coney’s Case ((1882) 8 QBD 534 at 549) [ie that the infliction of the blows is regarded as injurious to the public as well as to the person injured] may, as Cross and Jones point out in the work cited (at p 40), require to be understood as meaning that a person can lawfully consent to the infliction of bodily harm upon himself provided it falls short of being grievous bodily harm.’

I do not think a line can simply be drawn between ‘maiming’ and death on the one hand and everything else on the other hand. The rationale for negating consent when maiming occurred has gone. It is, however, possible to draw the line, and the line should be drawn, between really serious injury on the one hand and less serious injuries on the other. I do not accept that it is right to take common assault as the sole category of assaults to which consent can be a defence and to deny that defence in respect of all other injuries. In the first place the range of injuries which can fall within ‘actual bodily harm’ is wide—the description of two beatings in the present case show that one is much more substantial than the other. Further, the same is true of wounding where the test is whether the skin is broken and where it can be more or less serious. I can see no significant reason for refusing consent as a defence for the lesser of these cases of actual bodily harm and wounding.

If a line has to be drawn, as I think it must, to be workable it cannot be allowed to fluctuate within particular charges and in the interests of legal certainty it has to be accepted that consent can be given to acts which are said to constitute actual bodily harm and wounding. Grievous bodily harm I accept to be different by analogy with and as an extension of the old cases on maiming. Accordingly, I accept that, other than for cases of grievous bodily harm or death, consent can be a defence. This in no way means that the acts done are approved of or encouraged. It means no more than that the acts do not constitute an assault within the meaning of these two specific sections of the Offences against the Person Act 1861.

None of the convictions in the present cases have been on the basis that grievous bodily harm was caused. Whether some of the acts done in these cases might have fallen within that category does not seem to me to be relevant for present purposes.

Even if the act done constitutes common assault, actual bodily harm or wounding, it remains to be established that the act was done otherwise than in public and that it was done with full consent. I do not accept the suggested test as to whether an offence is committed, to be whether there is expense to the state in the form of medical assistance or social security payments. It seems to me better to ask whether the act was done in private or in public: is the public harmed or offended by seeing what is done or is a breach of the peace likely to be provoked? Nor do I consider that ‘hostility’ in the sense of ‘aggression’ is a necessary element to an assault. It is sufficient if what is done is done intentionally and against the will of the person to whom it is done. These features in themselves constitute ‘hostility’.

In R v Wollaston (1872) 26 LT 403 at 404 (where indecent assault was charged) Kelly CB, with whom the rest of the court concurred, said:

‘If anything is done by one being upon the person of another to make the act a criminal assault, it must be done without the consent and against the will of the person upon whom it is done. Mere submission is not consent, for there may be submission without consent, and while the feelings are repugnant to the act being done. Mere submission is totally different from consent. But in the present case there was actual participation by both parties in the act done, and complete mutuality.’

In the present cases there is no doubt that there was consent; indeed there was more than mere consent. Astonishing though it may seem, the persons involved positively wanted, asked for, the acts to be done to them, acts which it seems from the evidence some of them also did to themselves. All the accused were old enough to know what they were doing. The acts were done in private. Neither the applicants nor anyone else complained as to what was done. The matter came to the attention of the police ‘coincidentally’; the police were previously unaware that the accused were involved in these practices though some of them had been involved for many years. The acts did not result in any permanent or serious injury or disability or any infection and no medical assistance was required even though there may have been some risk of infection, even injury.

There has been much argument as to whether lack of consent is a constituent of the offence which must be proved by the prosecution or whether consent is simply raised by way of defence. Reliance is placed on the Canadian case of R v Ciccarelli (1989) 54 CCC (3d) 121 at 123, where it is said that in the absence of express consent the Crown must prove that the victim did not impliedly consent to the act done. That decision, however, is in the context of s 244 of the Criminal Code (Revised Statutes of Canada 1970), which provides:

‘A person commits an assault when, without the consent of another person, or with consent (a) he applies force intentionally to the person of the other, directly or indirectly …’

In the present statute there is no such provision, but it seems to me that here too the onus is on the prosecution to prove that there was no consent on the part of the person said to have been assaulted.

It has been suggested that if the act done is otherwise unlawful then consent cannot be a defence, but it can be a defence, if the act is otherwise lawful, in respect of injury which is less than really serious injury. That would produce the result in the present case that if these acts are done by two men they would be lawful by reason of s 1 of the Sexual Offences Act 1967, even though the acts are far away from the kinds of homosexual acts which the Wolfenden Report had in mind (see the Report of the Committee on Homosexual Offences and Prostitution (Cmnd 247 (1957)) para 105); in that situation, consent, it is said, would be a defence. If on the other hand three men took part, the activity would be unlawful under the 1967 Act, so that there could be no consent to the acts done. But it would also appear to mean that if these acts were done mutatis mutandis by a man and a woman, or between two men and a woman, or a man and two women, where the activity was entirely heterosexual, consent would prevent there being an offence. I do not find that this distinction produces an acceptable result.

My conclusion is thus that, as the law stands, adults can consent to acts done in private which do not result in serious bodily harm, so that such acts do not constitute criminal assaults for the purposes of the 1861 Act. My conclusion is not based on the alternative argument that for the criminal law to encompass consensual acts done in private would in itself be an unlawful invasion of privacy. If these acts between consenting adults in private did constitute criminal offences under the 1861 Act, there would clearly be an invasion of privacy. Whether that invasion would be justified and in particular whether it would be within the derogations permitted by art 8(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) it is not necessary, on the conclusion to which I have come, to decide, despite the interesting arguments address to your Lordships on that question and even on the basis that English law includes a principle parallel to that set out in the European Convention on Human Rights.

Mr Kershen QC contended in a very helpful argument that the answer to the question should be on the basis (a) of existing law or (b) that a new ruling was to be given. My conclusion is on the basis of what I consider existing law to be. I do not consider that it is necessary for the House in its judicial capacity to give what is called ‘a new ruling’ based on freedom of expression, public opinion and the consequences of a negative ruling on those whom it is said can only get satisfaction through these acts; indeed the latter I regard as being of no or at best of little relevance to the decision in this case. Nor do I think that it is for your Lordships to make new law on the basis of the position in other states so that English law can ‘keep in line’. All these are essentially matters, in my view, to be balanced by the legislature if it is thought necessary to consider the making criminal of sadomasochistic acts per se. The problems involved are carefully analysed by Dr L H Leigh in ‘Sado-masochism, consent and the reform of the criminal law’ (1976) 39 MLR 130.

The Director of Public Prosecution contends in her written submissions:

‘In the end it is a matter of policy. Is/are the state/courts right to adopt a paternalistic attitude as to what is bad or good for subjects, in particular as to deliberate injury.’

I agree that in the end it is a matter of policy. It is a matter of policy in an area where social and moral factors are extremely important and where attitudes can change. In my opinion it is a matter of policy for the legislature to decide. If society takes the view that this kind of behaviour, even though sought after and done in private, is either so new or so extensive or so undesirable that it should be brought now for the first time within the criminal law, then it is for the legislature to decide. It is not for the courts in the interests of ‘paternalism’, as referred to in the passage I have quoted, or in order to protect people from themselves, to introduce, into existing statutory crimes relating to offences against the person, concepts which do not properly fit there. If Parliament considers that the behaviour revealed here should be made specifically criminal, then the Offences against the Person Act 1861 or, perhaps more appropriately, the Sexual Offences Act 1967 can be amended specifically to define it. Alternatively, if it is intended that this sort of conduct should be lawful as between two persons but not between more than two persons as falling within the offence of gross indecency, then the limitation period for prosecution can be extended and the penalties increased where sado-masochistic acts are involved. That is obviously a possible course; whether it is a desirable way of changing the law is a different question.

I would therefore answer the question certified on the basis that, where a charge is brought in respect of acts done between adults in private under s 20 of the Offences against the Person Act 1861 in respect of wounding and under s 47 in respect of causing actual bodily harm, it must be proved by the prosecution that the person to whom the act was done did not consent to it.

Accordingly, I consider that these appeals should be allowed and the convictions set aside.

Appeals dismissed.

5.4 Vivid Entertainment, LLC v. Fielding 5.4 Vivid Entertainment, LLC v. Fielding

United States Court of Appeals for the Ninth Circuit

774 F.3d 566

No. 13-56445

2014-12-15

VIVID ENTERTAINMENT, LLC; Califa Productions, Inc.; Kayden Kross; and Logan Pierce, Plaintiffs-Appellants, v. Jonathan FIELDING, Director of Los Angeles County Department of Public Health; Jackie Lacey, Los Angeles County District Attorney; and County of Los Angeles, Defendants-Appellees, and Michael Weinstein; Arlette de La Cruz; Whitney Engeran; Mark McGrath; Marijane Jackson; and The Campaign Committee Yes on Measure B, Intervenors/Defendants-Appellees.

No. 13-56445.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Mar. 3, 2014.

Filed Dec. 15, 2014.

*570Robert Corn-Revere (argued) and Ronald G. London, Davis Wright Tremaine, LLP, Washington, D.C.; Janet L. Grumer and Matthew D. Peterson, Davis Wright Tremaine LLP, Los Angeles, CA; Paul J. Cambria, Lipsitz Green Scime Cambria LLP, Buffalo, NY; and H. Louis Sirkin, Santen & Hughes LPA, Cincinnati, OH, for Plaintiffs-Appellants.

Thomas R. Freeman (argued) and Mitchell A. Kamin, Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Licenberg, P.C., Los Angeles, CA; and Tom Myers, Laura Boudreau, Samantha R. Azulay, and Christina Yang, AIDS Healthcare Foundation, Los Angeles, CA, for Intervenors/De-fendants-Appellees.

No appearance for Defendants-Appel-lees.

Before: ALEX KOZINSKI and SUSAN P. GRABER, Circuit Judges, and JACK *571ZOUHARY,* District Judge.

OPINION

GRABER, Circuit Judge:

Plaintiffs Vivid Entertainment, LLC; Califa Productions, Inc.; Kayden Kross; and Logan Pierce are organizations and individuals who make adult films in Los Angeles County. The Los Angeles County Department of Public Health, whose director is a defendant here, sent Plaintiffs a letter stating its intention to enforce the voter-initiated County of Los Angeles Safer Sex in the Adult Film Industry Act (2012) (commonly known as Measure B) (codified at Los Angeles County, Cal., Code tit. 11, div. 1, ch. 11.39, and amending tit. 22, div. 1, ch. 22.56.1925). Measure B imposes a permitting system and additional production obligations on the makers of adult films, including a requirement that performers wear condoms in certain contexts. Plaintiffs sued for declaratory and injunctive relief, arguing that Measure B burdens their freedom of expression in violation of the First Amendment. Defendant Los Angeles County answered that, although it would enforce the ordinance unless ordered by a court not to, it did not intend to defend Measure B because it took a “position of neutrality” with respect to the ordinance’s constitutionality. The official proponents of Measure B intervened to defend it.

The district court issued a preliminary injunction forbidding Defendants from enforcing Measure B’s fee-setting provision, which gave Defendants discretion to set fees for permits; a provision that allowed warrantless searches by county health offi-eers of any location suspected of producing adult films; and the broad permit modification, suspension, and revocation process. The court denied preliminary injunctive relief, though, for much of the ordinance, including its condom and permitting requirements. Plaintiffs appeal the district court’s decision not to enjoin Measure B in full.1 We affirm.

FACTUAL AND PROCEDURAL HISTORY

The citizens of Los Angeles County enacted Measure B in November 2012 by means of the initiative process; it became law on December 14, 2012. The text of the ordinance declared that it was passed in response to documentation by the Los Angeles County Department of Public Health of the widespread transmission of sexually transmitted infections among workers in the adult film industry. Under Measure B, producers of adult films2 must obtain a newly designated “public health permit” before shooting an adult film in Los Angeles County.

Under Measure B as enacted, to obtain such a permit, producers of adult films must pay a fee, provide the Department with proof that certain employees have completed a county-approved training program concerning blood-borne pathogens, display the permit while filming, post a notice at the film site that the use of condoms is required, report to the Department any changes in the permitted business, and comply with all applicable laws, including title 8, section 5193 of the California Code of Regulations. Measure B *57211.39.080, .090, .100, .110. Section 5193 mandates barrier protection for all employees who are exposed to blood-borne pathogens, which Measure B interprets to require condoms for performers who engage in vaginal or anal intercourse. Id. 11.39.090. Measure B also provides that a public health permit may be suspended or revoked, and fines or criminal penalties imposed, for failure to comply with all permitting requirements. Id. 11.39.110. A producer who faces modification, suspension, or revocation of a permit may apply for an undefined form of “administrative review.” Id. 11.39.110(C).

In addition to providing for monetary and criminal penalties, Measure B allows enforcement of the permitting requirements through a surprise inspection by a Los Angeles County health officer at “any location suspected of conducting any activity regulated by this chapter.” Id. 11.39.130. “[F]or purposes of enforcing this chapter,” the health officer “may issue notices and impose fines therein and take possession of any sample, photograph, record or other evidence, including any documents bearing upon adult film producer’s compliance with the provision of the chapter.” Id. Measure B authorizes the district attorney to bring a civil enforcement action for injunctive relief against any producer who fails to cooperate with the health officer. Id. 11.39.140.

On the day that Measure B took effect, Defendant Department of Public Health mailed Plaintiffs a letter notifying them of the new ordinance and stating that it had established provisional permitting fees of $2,000 to $2,500 per year. Plaintiffs then filed this action challenging Measure B as facially unconstitutional under the First Amendment.3 Plaintiffs allege that Measure B’s permitting scheme and its condom requirement operate as prior restraints on Plaintiffs’ ability to create expression, in the form of adult films, which is protected by the First Amendment.

Over Plaintiffs’ objection, the district court allowed supporters of Measure B to intervene. Following the Supreme Court’s decision in Hollingsworth v. Perry, — U.S. -, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013), Plaintiffs asked the court to reconsider because, they argued, Intervenors lacked Article III standing. The district court denied the motion to reconsider.

The district court granted in part and denied in part Intervenors’ motion to dismiss, and granted in part and denied in part Plaintiffs’ request for a preliminary injunction. In granting preliminary in-junctive relief, the district court severed one chapter of Measure B in its entirety and severed portions of three other chapters. Appendix A contains Measure B and shows the parts that the district court enjoined and severed.

Plaintiffs timely appeal the denial of complete preliminary injunctive relief.4 They argue that the enjoined provisions are not properly severable, so the likely invalidity of some parts of the ordinance requires enjoining the entire ordinance. In the alternative, Plaintiffs argue that the district court erred in denying preliminary injunctive relief with respect to Measure B’s requirements that producers: (1) acquire a permit before beginning production on an adult film; (2) demonstrate that employees have completed a county-approved training program concerning blood-borne pathogens as a condition precedent to issuance of the permit; and (3) require performers to use condoms “during any acts of vaginal or anal sexual intercourse.”

*573STANDARD OF REVIEW

We review for abuse of discretion denial of a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011). “As long as the district court got the law right, it will not be reversed simply because we would have arrived at a different result if we had applied the law to the facts of the case.” A & M Records, Inc. v. Napster, Inc., 284 F.3d 1091, 1096 (9th Cir.2002) (internal quotation marks and brackets omitted). A district court abuses its discretion, however, if it applies an incorrect legal standard. Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir.1996). Accordingly, we review de novo the “legal premises underlying a preliminary injunction.” A & M Records, 284 F.3d at 1096.

DISCUSSION

A. Jurisdiction

Citing Perry, Plaintiffs argue that we lack jurisdiction over this appeal, because Intervenors lack Article III standing. We disagree with their reading of Perry and with their contention that Intervenors must have standing for this appeal to proceed.

The Supreme Court has held that a party must have Article III standing both to initiate an action and to seek review on appeal. Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). But an intervenor who performs neither of those functions and no other function that invokes the power of the federal courts need not meet Article III standing requirements. Yniguez v. Arizona, 939 F.2d 727, 731 (9th Cir.1991), vacated by Arizonans for Official English, 520 U.S. at 80, 117 S.Ct. 1055, as recognized in League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1305 n. 5 (9th Cir.1997); see also Perry, 133 S.Ct. at 2661 (citing Art. III, § 2) (holding that “any person’ invoking the power of a federal court must demonstrate standing to do so” (emphasis added)). Nothing in Perry, which concerned the question whether an intervenor who sought to appeal had Article III standing, affects that conclusion. Plaintiffs have standing, and it is they alone who have invoked the federal courts’ jurisdiction. For that reason, we need not and do not decide whether Intervenors satisfy the requirements of Article III standing.

To the extent that Plaintiffs contend that the district court erred in granting intervention, we cannot consider their challenge. An order allowing intervention under Federal Rule of Civil Procedure 24(a) is not a final order and is not an interlocutory order appealable by statute, so an appeal on that issue is premature until entry of final judgment. Alsea Valley Alliance v. Dep’t of Commerce, 358 F.3d 1181, 1187 (9th Cir.2004).

B. Severability

Plaintiffs next urge that, having held that they are likely to succeed on the merits with respect to some provisions of Measure B, the district court had to enjoin operation of the entire ordinance whether or not the remainder independently satisfies the standards for injunctive relief. For the reasons that follow, we disagree.

Federal courts should avoid “judicial legislation” — that is, amending, rather than construing, statutory text — out of respect for the separation-of-powers principle that only legislatures ought to make positive law. United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 479, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995). But, because of countervailing separation-of-powers principles, courts must respect the laws made by legislatures and, therefore, *574should avoid nullifying an entire statute when only a portion is invalid. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). These concerns have led to the judicial doctrine of severability, that is, the “elementary principle that the same statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected.” Id. (internal quotation marks omitted). The need for deference and restraint in severing a state or local enactment is all the more acute because of our respect for federalism and local control. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 772, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988).

Because a court may not use severability ás a fig leaf for judicial legislation, courts have fashioned limits on when a statute may be severed. See Yu Cong Eng v. Trinidad, 271 U.S. 500, 518, 46 S.Ct. 619, 70 L.Ed. 1059 (1926) (“[I]t is very clear that amendment may not be substituted for construction, and that a court may not exercise legislative functions to save the law from conflict with constitutional limitation.”). In keeping with federalism principles, the “[sjeverability of a local ordinance is a question of state law.” City of Lakewood, 486 U.S. at 772, 108 S.Ct. 2138.

California law directs courts to consider first the inclusion of a severability clause in the legislation. Cal. Redev. Ass’n v. Matosantos, 53 Cal.4th 231, 135 Cal.Rptr.3d 683, 267 P.3d 580, 607 (2011). “The presence of such a clause establishes a presumption in favor of severance.” Id. “Although not conclusive, a severability clause normally calls for sustaining the valid part of the enactment....” Santa Barbara Sch. Dist. v. Superior Court, 13 Cal.3d 315, 118 Cal.Rptr. 637, 530 P.2d 605, 618 (1975) (internal quotation marks omitted).

Measure B contains this severability clause:

If any provision of this Act, or part thereof, is for any reason held to be invalid or unconstitutional, the remaining provisions shall not be affected, but shall remain in full force and effect, and to this end the provisions of the Act are severable.

Measure B § 8. Section 8 states clearly that the people, acting in their legislative capacity, intended any provision and any part of a provision, if invalid or unconstitutional, to be severed from the ordinance. The district court thus properly held that Measure B’s severability clause establishes a presumption of severability.

Next, California law directs courts to “consider three additional criteria: The invalid provision must be grammatically, functionally, and volitionally separable.” Cal. Redev. Ass’n, 267 P.3d at 607 (internal quotation marks and brackets omitted). We will consider each criterion in turn.

“Grammatical separability, also known as mechanical separability, depends on whether the invalid parts can be removed as a whole without affecting the wording or coherence of what remains.” Id. (internal quotation marks omitted). “[T]he* ‘grammatical’ component of the test for severance is met by the severability clause considered in conjunction with the separate and discrete provisions of [the statute].” Barlow v. Davis, 72 Cal.App.4th 1258, 85 Cal.Rptr.2d 752, 757 (1999). “To be grammatically separable, the valid and invalid parts of the statute can be separated by paragraph, sentence, clause, phrase, or even single words.” People v. Nguyen, 222 Cal.App.4th 1168, 166 Cal.Rptr.3d 590, 609 (2014) (internal *575quotation marks omitted). “[Where] the defect cannot be cured by excising any word or group of words, the problem is quite different and more difficult of solution.” Ex parte Blaney, 30 Cal.2d 643,184 P.2d 892, 900 (1947); Santa Barbara Sch. Dist., 530 P.2d at 617.

Here, Plaintiffs contend that the district court abused its from the definition of an adult film. Specifically, the district court struck part of 11.39.010 of Measure B as follows:

An “adult film” is defined as any film, video, multimedia or other representation of sexual intercourse in which performers actually engage in eraly vaginal, or anal penetration, including, but not limited to, penetration by a penisy-fingery or-inanimate object; — or-al-contact with the anus or genitals of another performer; and/or any other sexual activity that may result in the transmission of blood and/or any other.potentially infectious materials.

In large part, as can be seen, the district court severed distinct clauses. The district court also severed some individual words but, grammatically, they are understood by the reader to include complete clauses. For example, the compound clause “engage in oral, vaginal, or anal penetration” means — and easily could have been drafted to say — “engage in oral penetration, engage in vaginal penetration, or engage in anal penetration.” For that reason, the district court did, in fact, sever only distinct provisions from Measure B, and that severance did not alter the meaning of the remaining text in any way. California courts have long held that parts of a compound clause are grammatically severable from a statute if their omission would not affect the meaning of the remaining text. Ex parte Blaney, 184 P.2d at 900; Santa Barbara Sch. Dist., 530 P.2d at 617; see also Legislature v. Eu, 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309, 1335-36 (1991) (holding as grammatically severable “or serving in” from “elected to or serving in the Legislature on or after November 1, 1990”); Borikas v. Alameda Unified Sch. Dist., 214 Cal.App.4th 135, 154 Cal.Rptr.3d 186, 212 (2013) (holding as grammatically severable “residential” from “[o]n each taxable, residential parcel at the rate of $120 per year”); City of Dublin v. County of Alameda, 14 Cal.App.4th 264, 17 Cal.Rptr.2d 845, 850-51 (1993) (holding as grammatically severable “incorporated and” from “the geographic entity, including both the incorporated and unincorporated areas”). In short, the district court permissibly held that the disputed portions of Measure B are grammatically severa-ble.5

*576Our next consideration, functional severability, “depends on whether the remainder [of the statute] is complete in itself.” Santa Barbara Sch. Dist., 530 P.2d at 618 (internal quotation marks omitted). To be functionally severable, “[t]he remaining provisions must stand on their own, unaided by the invalid provisions nor rendered vague by their absence nor inextricably connected to them by policy considerations. They must be capable of separate enforcement.” People’s Advocate, Inc. v. Superior Court, 181 Cal.App.3d 316, 226 Cal.Rptr. 640, 649 (1986). Here, the district court enjoined the provisions of Measure B that allowed for modification, suspension, and revocation of permits; that authorized administrative searches; and that allowed discretion in setting fees. The rest of the ordinance remains intact: the permitting scheme, with its condom and educational requirements; and enforcement through fines and criminal charges. In addition, as the district court noted, even in the absence of the administrative search provision, Defendants can obtain a warrant to enforce Measure B. Because the remaining parts of Measure B operate independently, are not rendered vague in the absence of the invalid provisions, and are capable of separate enforcement, the district court permissibly ruled that the provisions are functionally severable.

Our final consideration, volitional severability, “depends on whether the remainder [of the statute] is complete in itself and would have been adopted by the legislative body had [it] foreseen the partial invalidation of the statute.” Santa Barbara Sch. Dist., 530 P.2d at 618 (internal quotation marks omitted). With respect to ballot initiatives, the test for volitional severability “is whether it can be said with confidence that the electorate’s attention was sufficiently focused upon the parts to be severed so that it would have separately considered and adopted them in the absence of the invalid portions.” Gerken v. Fair Political Practices Comm’n, 6 Cal.4th 707, 25 Cal.Rptr.2d 449, 863 P.2d 694, 699 (1993) (internal quotation marks and emphasis omitted).

The district court preserved the requirements that producers of adult films in Los Angeles County obtain permits, train employees about the sexual transmission of disease, and require performers to wear condoms when engaged in vaginal or anal intercourse. The district court also preserved the enforcement mechanisms of fines and criminal penalties. As the court correctly noted, the “Findings and Declaration” section of the initiative emphasizes (1) a growing public concern over the spread of HIV/AIDS and other sexually transmitted infections in the adult film industry; (2) the importance of safe sex practices, and the use of condoms in particular, in limiting the spread of HIV/AIDS and other sexually transmitted infections; and (3) a failure to enforce current state laws mandating the use of condoms by performers in adult films. Measure B § 2. Thus, the Declaration demonstrates that the public’s attention was focused primarily on heightening enforcement of the condom requirement. That is, even in the absence of the severed segments, the remaining provisions centrally address the voters’ stated concerns. The district court permissibly concluded that the condom and permitting requirements are volitionally *577severable from the fee-setting, inspections, and administrative procedures.

Plaintiffs counter that the fee provisions ' are not volitionally severable, because the voters would not have passed Measure B as an “unfunded mandate.” But the Declaration contained in Measure B says nothing about money or revenue neutrality. Rather, the text demonstrates that the core purpose of the initiative “was presented to the electorate as a distinct aim, separate and apart from the measure’s funding mandate.” McMahan v. City of San Francisco, 127 Cal.App.4th 1368, 26 Cal.Rptr.3d 509, 513 (2005) (holding that a funding provision was volitionally severa-ble from the primary regulatory scheme).

In sum, the district court did not abuse its discretion in granting preliminary in-junctive relief with respect to only certain parts of Measure B, while allowing enforcement of other provisions as severable. We now turn to Plaintiffs’ assertion that, even if severance is permissible, the district court erred in denying preliminary injunctive relief with respect to additional parts of the ordinance: the condom mandate and the permitting requirement.

C. Denial of Preliminary Injunctive Relief

In deciding whether a preliminary injunction should issue, a district court must consider four factors: (1) whether the plaintiff has shown a likelihood of success on the merits; (2) whether the plaintiff has shown a likelihood of irreparable harm in the absence of preliminary relief; (3) whether the balance of equities tips in the plaintiffs favor; and (4) whether preliminary relief is in the public interest: Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

Courts asked to issue preliminary injunctions based on First Amendment grounds face an inherent tension: the moving party, bears the burden of showing likely success on the merits ... and yet within that merits determination the government bears the burden of justifying its speech-restrictive law_

Therefore, in the First Amendment context, the moving party bears the initial burden of making a colorable claim that its First Amendment rights have been infringed, ... at which point the burden shifts to the government to justify the restriction.

Thalheimer v. City of San Diego, 645 F.3d 1109, 1115-16 (9th Cir.2011). But even if the plaintiff demonstrates likely success on the merits, the plaintiff still must demonstrate irreparable injury, a favorable balance of equities, and the tipping of the public interest in favor of.an injunction. Id. at 1128. That is, although

a First Amendment claim “certainly raises the specter” of irreparable harm and public interest considerations, proving the likelihood of such a claim is not enough to satisfy Winter. Stormans, [Inc. v. Selecky, 586 F.3d 1109,] 1138 [(9th Cir.2009)]; see also Klein v. City of San Clemente, 584 F.3d 1196, 1207 (9th Cir.2009) (even where the plaintiff was likely to succeed on the merits of his First Amendment claim, he “must also demonstrate that he is likely to suffer irreparable injury in the absence of a preliminary injunction, and that the balance of equities and the public interest tip in his favor”) (citing Winter, 555 U.S. at 20, 129 S.Ct. 365).

DISH Network Corp. v. FCC, 653 F.3d 771, 776 (9th Cir.2011).

1. Condom. Mandate

The district court held that Plaintiffs are unlikely to succeed on the merits of their First Amendment challenge to *578the condom requirement. The court did not abuse its discretion in declining to enjoin the enforcement of the condom mandate. The condom mandate survives intermediate scrutiny because it has only a de minimis effect on expression, is narrowly tailored to achieve the substantial governmental interest of reducing the rate of sexually transmitted infections, and leaves open adequate alternative means of expression.

As a threshold matter, Plaintiffs argue that the district court applied the wrong standard — intermediate scrutiny — and that the condom mandate should be subject to strict scrutiny. We disagree.

The Supreme Court has recognized that nearly all regulation of the adult entertainment industry is content based. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 448, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (Kennedy, J., concurring in the judgment). Content-based regulation of speech generally receives strict scrutiny, but we have fashioned an exception, grounded in Alameda Books, that applies intermediate scrutiny if two conditions are met. Ctr. For Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1161, 1164-65 (9th Cir.2003) (citing Alameda Books, 535 U.S. at 434, 122 S.Ct. 1728) (recognizing Justice Kennedy’s concurrence as controlling). First, the ordinance must regulate “speech that is sexual or pornographic in nature.” Gammoh v. City of La Habra, 395 F.3d 1114, 1123, amended on denial of reh’g, 402 F.3d 875 (9th Cir.2005). Second, “the primary motivation behind the regulation [must be] to prevent secondary effects.” Id. But even if those two conditions are met, strict scrutiny may still apply if the regulation amounts to a complete ban on expression. Dream Palace v. County of Maricopa, 384 F.3d 990, 1021 (9th Cir.2004).

We assume, but need not and do not decide, that Measure B’s condom mandate is a content-based regulation of speech. Nonetheless, Measure B regulates sexual speech in order to prevent the secondary effects of sexually transmitted infections, thus falling within the Alameda Books exception. Plaintiffs argue that, despite that exception, the district court should have applied strict scrutiny because the condom mandate amounts to a complete ban on their protected expression.

As an initial matter, Plaintiffs’ argument presupposes that their relevant expression for First Amendment purposes is the depiction of condomless sex. But “simply to define what is being banned as the ‘message’ is to assume the conclusion.” City of Erie v. Pap’s A.M., 529 U.S. 277, 293, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). In Pap’s A.M., a plurality of the Supreme Court concluded that a general ban on public nudity, which required erotic dancers to wear at least pasties and a G-string while dancing, did not violate the First Amendment. Id. at 302, 120 S.Ct. 1382. In reaching that conclusion, the opinion rejected the argument that the pasties- and-G-string requirement functioned as a complete ban on the dancers’ expression of “nude dancing.” Id. at 292-93, 120 S.Ct. 1382. Instead, the opinion defined the relevant expression more broadly as “the dancer’s erotic message.” Id. at 301, 120 S.Ct. 1382. We undertook a similar analysis, albeit without reference to Pap’s A.M., in Gammoh, in which we upheld an ordinance that required dancers to stay at least two feet away from patrons during their performances. 395 F.3d at 1123. The plaintiffs there argued that the ordinance completely banned their expression, which they defined as “proximate dancing.” Id. In response, we stressed that “the ‘expression’ at issue could always be defined to include the contested restriction,” but “virtually no ordinance would *579survive this analysis.” Id. .We instead defined the relevant expression as “the dancer’s erotic message” and upheld the ordinance. Id. at 1128.

In light of those cases, we must examine more carefully whether Plaintiffs’ relevant expression is the depiction of condomless sex. Plaintiffs submitted declarations stating that condomless sex differs from sex generally because condoms remind the audience about real-world concerns such as pregnancy and disease. Under this view, films depicting condomless sex convey a particular message about sex in a world without those risks. The Supreme Court has cautioned, however, that “ ‘[i]t is possible to find some kernel of expression in almost every activity a person undertakes-for example, walking down the street or meeting one’s friends at a shopping mall-but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.’ ” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 570, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (quoting City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989)).

To determine whether conduct is protected by the First Amendment, we ask not only whether someone intended to convey a particular message through that conduct, but also whether there is a “great” likelihood “that the message would be understood by those who viewed it.” Spence v. Washington, 418 U.S. 405, 410-11, 94 5.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam). Here, we agree with the district court that, whatever unique message Plaintiffs might intend to convey by depicting condomless sex, it is unlikely that viewers of adult films will understand that message. So condomless sex is not the relevant expression for First Amendment purposes;6 instead, the relevant expression is more generally the adult films’ erotic message. See Pap’s A.M., 529 U.S. at 293, 120 S.Ct. 1382; Gammoh, 395 F.3d at 1123.

With Plaintiffs’ expression so defined, we conclude that strict scrutiny is inappropriate because the condom mandate does not ban the relevant expression completely. Rather, it imposes a de minimis restriction. In Pap’s A.M., the Supreme Court held that the pasties-and-G-string requirement did not violate the First Amendment because, even if the ban “has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped,” that effect was de minimis. 529 U.S. at 294, 120 S.Ct. 1382 (emphasis added). That was so even though the ban “certainly ha[d] the effect of limiting one particular means of expressing the kind of erotic message being disseminated.” Id. at 292-93, 120 S.Ct. 1382; see also Barnes, 501 U.S. at 571, 111 S.Ct. 2456 (noting that a requirement that erotic dancers wear pasties and G-strings “does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic”).

Many of our sister circuits have relied on Pap’s AM. in upholding de minimis restrictions on speech using intermediate *580scrutiny. See, e.g., Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 299 (6th Cir.2008) (upholding a nudity ban under intermediate scrutiny because Pap’s A.M. and Barnes had characterized a similar regulation as de minimis); Fantasy Ranch Inc. v. City of Arlington, 459 F.3d 546, 562 (5th Cir.2006) (rejecting an argument that an ordinance requiring a certain distance between dancers and the audience enacted a “complete ban on proximate nude dancing”); Heideman v. S. Salt Lake City, 348 F.3d 1182, 1195-96 (10th Cir.2003) (applying Pap’s A.M. to conclude that a ban on nude erotic dancing was not a “total ban” on speech). And, as noted, we followed this same analytical approach in Gammoh, 395 F.3d at 1122-23.

A similar analysis applies to the condom mandate. The requirement that actors in adult films wear condoms while engaging in sexual intercourse might have “some minimal effect” on a film’s erotic message, but that effect is certainly no greater than the effect of pasties and G-strings on the erotic message of nude dancing. In light of Pap’s A.M. and the other precedent cited above, we conclude that the restriction on expression in this case is de minim-is. And a de minimis restriction on expression is, by definition, not a complete ban on expression, and so does not trigger strict scrutiny. Accordingly, the mandate is subject to intermediate scrutiny.

The district court properly exercised its discretion in concluding that the condom requirement likely would survive intermediate scrutiny. “A statute will survive intermediate scrutiny if it: (1) is designed to serve a substantial government interest; (2) is narrowly tailored to serve that interest; and (3) does not unreasonably limit alternative avenues of communication.” Gammoh, 395 F.3d at 1125-26, as amended on denial of reh’g, 402 F.3d 875, 876.

The purpose-of Measure B is twofold: (1) to decrease the spread of sexually transmitted infections among performers within the adult film industry, (2) thereby stemming the transmission of sexually transmitted infections to the general population among whom the performers dwell. Plaintiffs do not contest that the government has a substantial interest in preventing certain secondary effects of the adult film industry, including the spread of sexually transmitted infections. See Rubin v. Coors Brewing Co., 514 U.S. 476, 485, 115 S.Ct. 1585, 131 L.Ed.2d 532 (1995) (stating that “the Government ... has a significant interest in protecting the health, safety, and welfare of its citizens”); Ctr. For Fair Pub. Policy, 336 F.3d at 1166 (“It is beyond peradventure at this point in the development of the doctrine that a state’s interest in curbing the secondary effects associated with adult entertainment establishments is substantial.”). Rather, Plaintiffs contend that Measure B’s condom mandate is not narrowly tailored to serve the government’s interest.

In order to be narrowly tailored for purposes of intermediate scrutiny, the regulation “ ‘need not be the least restrictive or the least intrusive means’ available to achieve the government’s legitimate interests.” Berger v. City of Seattle, 569 F.3d 1029, 1041 (9th Cir.2009) (en banc) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 798, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). “Rather, the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th Cir.1998) (internal quotation marks and ellipsis omitted). This is not to say that narrow tailoring allows a regulation to burden more speech than is necessary to satisfy the interest, but we may not *581invalidate such a regulation “simply because there is some imaginable alternative that might be less burdensome on speech.” United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985).

Plaintiffs’ narrow-tailoring argument rests largely on the proposition that Measure B duplicates a voluntary testing and monitoring scheme that already is in place in the industry. The adult film industry and its trade associations have established the Adult Protection Health & Safety Service, which has implemented a program whereby performers are tested, either monthly or more frequently, and the test results are made available in a database. In addition, if the Safety Service receives notification of a positive test result, it must inform the Department of Public Health. Adult film producers and performers have access to the database in order to verify that performers have been tested and that those tests have been negative. Certain employers require their performers, by contract, to submit to testing at various intervals. For example, Plaintiff Kross’ contract requires testing every 15 days, Plaintiff Pierce is tested every 14 days, and all of Plaintiff Vivid Entertainment’s performers are tested at least once every 28 days.

On the day of production, Plaintiff Vivid Entertainment requires each performer to provide identification, and each performer’s test history is drawn from the Safety Service database. Plaintiff Vivid Entertainment allows participation in the production only by performers with a current test status and a negative result. Plaintiffs Kross and Pierce declare that they undertake this screening process before every explicit scene in which they perform, and both Plaintiffs Kross and Pierce declare that they would not take part in an explicit scene if the screening measures were not in place. Plaintiffs also provided testimony from industry officials that this testing system is effective.

The district court considered Plaintiffs’ evidence and weighed it against contradictory evidence that the industry’s testing scheme is ineffective. In particular, the district court considered a 2009 letter from the County of Los Angeles Department of Public Health to support the conclusion that Measure B, passed in 2012, was designed to address the spread of disease and is narrowly tailored to that end.7 The Findings and Declaration section of Measure B refers specifically to documentation by the Los Angeles County Department of Public Health of the spread of HIV/AIDS and other sexually transmitted infections in the adult film industry. Measure B § 2.

In the 2009 letter, the Department of Public Health reported that its analysis of 2008 data showed a markedly higher rate of sexually transmitted infections for performers within the adult film industry, 20%, than for the general public, 2.4%, and even for the county area with the highest rate of infection, 4.5%. The Department of Public Health also found that 20.2% of performers in adult films diagnosed with an infection were reinfected within one year. Further, the Department of Public Health opined that the data with respect to infection rates were likely underestimat*582ed, because rectal and oral screenings were not completed with regularity among workers in the industry.

The district court weighed all the evidence before it and, finding the 2009 letter especially compelling, held that Plaintiffs were unlikely to succeed on the merits in their First Amendment challenge to the condom mandate. In so doing, the district court did not abuse its discretion.8

On appeal, Plaintiffs also argue that Measure B’s condom mandate is not narrowly tailored, and is largely ineffective, because makers of adult films can produce films across county lines without having performers wear condoms. As an initial matter, it bears noting that Plaintiffs offered evidence before the district court that Measure B has drastically reduced the number of adult films produced by the industry because the productions, which depend heavily on the “regular” film industry’s infrastructure in Los Angeles County, cannot be moved elsewhere. That evidence undermines Plaintiffs’ new contention that Measure B is ineffective because of the adult film industry’s ready mobility.

But, more importantly, Plaintiffs’ argument overstates the standard for narrow tailoring, which simply requires that the regulation “promote[] a substantial government interest that would be achieved less effectively absent the regulation.” Colacurcio, 163 F.3d at 553. The regulation need not be the most effective way to achieve the government’s substantial interest, nor must it be shown that the regulation cannot be circumvented. Rather, it suffices if the regulation helps to achieve the substantial government interest effectively. Id.

Finally, Plaintiffs contend that Measure B’s condom mandate unconstitutionally forecloses alternative channels of communication. As we noted in Gammoh, “[t]his inquiry is analogous” to our analysis of whether the condom mandate is a complete ban on expression. 395 F.3d at 1128. In Gammoh, we held that the required two-foot separation between dancers and patrons left open alternative channels of communication because the requirement “slightly impaired [the message],” but “the dancer’s erotic message [could] still be communicated from a slight distance.” Id. The same is true here. Measure B is a minimal restriction on Plaintiffs’ expression that “leaves ample capacity to convey [Plaintiffs’] erotic message.” Pap’s A.M., 529 U.S. at 301, 120 S.Ct. 1382. Accordingly, the district court did not abuse its discretion in holding that the condom requirement leaves alternative channels of expression available.

2. Permitting System

The portions of Measure B’s permitting system left in place by the district court also survive constitutional scrutiny.9 Plaintiffs first argue that the *583remaining permitting requirements are impermissibly content based and therefore unconstitutional. But a licensing scheme that regulates adult entertainment is not unconstitutional simply because it is content based. See Dream Palace, 384 F.3d at 1001. Plaintiffs also argue “that the remnants of Measure B’s permitting regime left intact are [not] narrowly tailored.” See Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (holding that “any permit scheme ... must be narrowly tailored”). As discussed above, narrow tailoring requires only that the remaining portions of the permitting scheme “promote[] a substantial government interest that would be achieved less effectively absent the regulation.” Colacurcio, 163 F.3d at 553 (internal quotation marks omitted). The permitting system’s requirements that adult film producers complete training about blood-borne pathogens and post a permit during shooting still serve the County’s interest in preventing sexually transmitted infections. That remains so even in light of the other portions of the permitting system that the district court enjoined. ■ Finally, Plaintiffs argue that the permitting scheme grants county officials too much discretion, but the district court correctly concluded that the remaining permitting provisions leave little, if any, discretion to government officials. Accordingly, the district court did not abuse its discretion in denying preliminary injunctive relief with respect to Measure B’s remaining permitting requirements.

CONCLUSION

We have jurisdiction over this appeal whether or not Intervenors have demonstrated Article III standing. The district court did not abuse its discretion in holding that the invalid portions of Measure B are severable. Nor did the district court abuse its discretion in denying a preliminary injunction with respect to the condom and permitting provisions of Measure B.

AFFIRMED.

APPENDIX A

The district court did not provide a line-edited version of its severance analysis. For purposes of clarity, we provide the attached interpretation of the district court’s analysis.

. Plaintiffs rely on Acosta v. City of Costa Mesa, 718 F.3d 800, 820-21 (9th Cir.2013) (per curiam), for the broad principle that a court necessarily abuses its discretion if it holds that a single word or group of words is grammatically severable under California law. Acosta is distinguishable, and we decline to extend it in a way that would contradict governing California law.

In Acosta, the severability clause itself was narrow, providing that only "sections, paragraphs, clauses and phrases” were severable from the ordinance in question. Id. at 820. We interpreted that particularized list to prohibit, by inference, the severance of "individual words.” Id. As directed by California law, we read that narrow severability clause " 'in conjunction with the separate and discrete provisions of the text to determine whether the ‘grammatical component of the test for severance is met.' ” Id. (quoting Barlow, 85 Cal.Rptr.2d at 757). Reading the text and severance clause together, we held that the single adjective "insolent” and the list of adjectives "personal, impertinent, profane, insolent” were not grammatically severable from the ordinance because, in context, the words did not express a single "legislative thought.” Id. at 820-21.

*576Here, by contrast, Measure B contains a broad severability clause that does not prohibit the severance of individual words. Under Measure B, any provision or part of any provision shall be severed. Moreover, as noted, the challenged severance in this case involves discrete legislative thoughts.