No pain, no gain

Is it a crime to consensually inflict pain for television entertainment? There are several television shows that involve one person, the 'perpetrator', deliberately inflicting pain on another, the 'victim'. Such pain is inflicted for the purpose of entertaining the television audience whereby the 'victim' enthusiastically consents to the infliction of the pain. But is it lawful?

There is no denying that people have a strange fascination with real pain. For example, typing the word 'pain' into the search box at the popular video sharing webpage, YouTube, brings up a video called 'Pain for laughs', at the time of writing added only one week ago and already viewed 115,333 times. The video features people injuring themselves; for example, breaking bones. The British television audience has witnessed a long history of pain infliction. Balls of Steel is a popular Channel 4 comedy series and features guests who perform 'stunts', including two men who deliberately inflict extreme pain on each other. The show has involved the following inflictions of pain:

• the 'perpetrator' stapling a piece of paper to the tongue of the 'victim' in the episode 'Stapler Diet';
• the 'perpetrator' pressing onions into the eyes of the 'victim' in the episode 'Kitchen Nightmares'; and
• the 'perpetrator' hitting the buttocks of the 'victim' with a cane in the episode 'School Discipline'.

Tempting though it is in this preface to embark upon a detailed critique of whether people's fascination with pain is good (or healthy), I will refrain from doing so, not least because little purpose would be served. People are fascinated by real pain and there is a market for television directors to exploit. It is essential for legal practitioners to know how television directors can design their television contents to make them lawful.

"Cult of violence"

Section 47 of the Offences against the Person Act 1861 specifies: 'Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm (ABH) shall be liable'¦ to be kept in penal servitude'¦' The law in this area is not free from confusion. However, in R v Brown [1994] 1 AC 212, the leading case authority, the 'victims' were participating in private homosexual BDSM activities. The charges 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.'

The 'perpetrators' were convicted and their appeal was dismissed by a 3-2 majority of the House of Lords, with Lord Templeman declaring: 'Such violence is injurious to the participants and unpredictably dangerous... Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing.'

The appellants in R v Brown sought redress from the European Court of Human Rights in Brown v UK, 24 Eur H R Rep 39 (1997), but the court dismissed their case. The approach adopted in R v Brown was consistent with earlier judgments; for example, in R v Donovan [1934] All ER Rep 207, it was stated that a 17-year-old girl could not give valid consent to a sado-masochistic caning.

Actual bodily harm

In R v Brown, the court drew a line between assaults involving no injury and assaults occasioning ABH. Lord Templeman noted: 'When no [ABH] is caused, the consent of the person affected precludes him from complaining.' One can therefore validly consent to an application of force which does not cause ABH.

In R v Donovan, per Swift: ''¦ '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'¦ be more than merely transient and trifling.' This would include bruises and sores (see R v Reigate Justices ex parte Counsell (1984) 148 JP 193 and R v Chan-Fook [1994] 2 All ER 552).

Arguably, it only makes sense to show an act of pain infliction on television if is more than 'transient and trifling'. Otherwise, no television audience would be interested in watching the television show as the reason for watching the show is to see 'some injury'.

Some of the acts in Balls of Steel would most certainly leave bruises; for example, the acts of the perpetrator hitting the buttocks of the victim with a cane. Other acts will certainly leave sores; for example, the perpetrator stapling a piece of paper to the tongue.

R v Donovan dealt with the beating of a girl who was 17-years-old. The beating was done with a cane which left red marks on her body. This was described as a 'fairly severe beating'. Swift noted that 'when such an act is proved, consent is immaterial'. This harm in Donovan seems strikingly similar to the harm inflicted in Balls of Steel, where the perpetrator hit the victim with a cane which also left red marks.

Considering the above case authorities, it is difficult to imagine that one could perform any of the acts previously done in Balls of Steel without (at least) the risk of causing ABH. Therefore, if a television director intends to include similar acts in his television show, he should obtain detailed advice.

A consensual crime

Naturally, in 1993, the UK's television was different from television nowadays and it was probably not anticipated by Lord Templeman that the infliction of pain would become an important part of the UK's television culture. However, there is no reason for assuming that pain infliction on TV would not amount to a crime '“ a consensual crime, but still a crime.

In January 2010, Vivienne Pattison, director of the Mediawatch-UK, an organisation set up to 'campaign for decency and accountability in the media', and one of the authors of this article (Kai Graf von Pahlen) brought a complaint before New Scotland Yard bringing the above issues before it for the first time. It remains to be seen what will further happen in this matter.

Lawful activities

Having established that the activities in television shows such as Balls of Steel may well be unlawful, we must consider how a television director could make its television contents lawful.

Lord Templeman noted in R v Brown: 'Other activities carried on with consent'¦ have been accepted as lawful notwithstanding that they involve [ABH] or may cause serious bodily harm. Ritual circumcision, tattooing, ear piercing and violent sports including boxing are lawful activities'¦'

If the infliction of pain is essential to the success of the show, the television directors may consider ways of making the infliction of pain a 'lawful activity'.

In R v Donovan, Swift J said: 'Another exception to the general rule'¦ is to be found in cases of rough and undisciplined sport or play'¦ where there is no anger and no intention to cause bodily harm.' In R v Jones (1986) 83 Cr App R 375, the defendants tossed other youths into the air and let them fall to the ground. One of the victims suffered a ruptured spleen and another suffered a broken arm. The Court of Appeal held that the defence of consent should have been left to the jury. This ruling was approved in R v Brown. Individuals may lawfully engage in rough horseplay where no injury is intended.

A television director may be advised to consider a 'horseplay' act, as opposed to making the infliction of pain the primary purpose of the television show. However, this might be impractical. Undisciplined horseplay can cause real pain. The audience may be satisfied if it is presented with, for example, a video of persons being thrown into the air and breaking their arms. However, there is no guarantee of this happening and a television director may risk losing the audience's interest if he exposes them to prolonged (if dangerous) activities without actual pain.

In R v Donovan, Swift J noted: 'There are'¦ well-established exceptions to the general rule'¦ One of them is'¦ the case of persons who in perfect friendship engage by mutual consent in contests, such as 'cudgels, foils, or wrestling', which are capable of causing bodily harm.'

Television directors may perhaps take a lesson from the German television entertainer Stephan Raab who challenged boxing champion Halmich to a boxing match. Naturally, the entertainer lost in a predictably painful way and the audience's desire for pain was, therefore, satisfied.

If the infliction of pain is an essential part of the television show, a director may be advised to consider satisfying the audience's desire for pain in the form of a contact sport '“ as opposed to deliberately inflicting it. However, this may be impractical because the audience may not be satisfied with such an ordinary, if painful, activity. Contact sports are commonly practised and the audience may demand something that they are unfamiliar with, such as hitting the victim with a cane.