The Catholic Union of Great Britain
Guild of Catholic Doctors
Response to the Law Commission
Consultation Paper No 139,
'Consent in the Criminal Law'.
The Joint Ethico-Medical Committee is composed of members drawn from the two parent bodies, the Catholic Union of Great Britain and the Guild of Catholic Doctors.
The Catholic Union is an organisation of the Catholic Laity which is not affiliated to the hierarchy and which represents the Catholic viewpoint, where relevant, in Parliamentary and legislative matters. The Guild of Catholic Doctors represents Catholic Medical Practitioners of the United Kingdom.
Part I General Overview. (Draft Bill, 1 & 4)
1.3 We agree with your proposal 'that the law should place some limit on the degree of injury to which a victim might consent', and with the majority of the House of Lords in Brown that 'consent is no defence in respect of an act which is intended or likely to do actual bodily harm, or injury.'
Part II Policies for reform.
We consider that certain actions are contrary to the natural Law, and that to indulge in them is necessarily harmful to the individual's self respect and moral well being (if nothing else). For us, too, such actions are contrary to the law of God, our Creator. In addition we believe that Society has the right to restrict or forbid activities which may be harmful (c.f. Magistrates' Association at 2.6), not only physically and to the individual, but also by way of moral harm and 'economic costs' (2.8) to society itself.
We support the House of Lords Select Committee on Medical Ethics (2.11) and deplore the decision of the House of Lords (2.12) in the case of Tony Bland which, in effect, permitted 'passive' euthanasia. We do not consider that all possible treatment must be given at all times, but for us the overriding distinction lies in the question of whether the treatment or care in question is in itself burdensome and may, for that reason (but not for the reason of wishing to end life) be withdrawn or withheld.
Part IIIThe European Convention on Human Rights.
We agree with Lord Templeman, quoted at footnote 9 'Pleasure derived from the infliction of pain is an evil thing.' We suggest that any distinction between the 'violent' and 'sexual' aspects of certain activities is purely arbitrary, and introduced only for reasons of legal codification. It is quite wrong to justify violence on the basis that it is for sexual reasons (and therefore "an essentially private manifestation of the human personality" (3.5)) since the instinctual nature of such behaviour makes it, if anything, even less rational and controlled than 'simple' violence. Conversely the vicarious enjoyment of risk would seem to be enhanced by the addition of a sexual element, e.g. the wearing of minimal clothing by circus performers and others.
Just as we believe the offering and reception of 'love' through punishment and pain is an immature masquerade (see X below), so, at the other extreme, we repudiate the suggestion (10.50) of an academic respondent that rape 'is not necessarily to do with sex, but to do with violence', since rape cannot be defined as other than a sex act. This does not constitute an 'either/or' situation: the two aspects are inseparable.
Part IV Consent to injury or the risk of injury and the Criminal Law Bill.(Draft Bill 2, 3, 5, 6, 7, 8, and 11(1)(a) & (2)(a))
4.25 We agree that the determination of the victim's best interests is of great importance, but find it hard to see why 'it is only this wider consideration that justifies punishing consensually-inflicted injury at all' (4.27 - our italics). In an earlier submission (re LC 231, p.2) we have suggested that the three most important 'best interests' for any human being are the the preservation of life, the prevention of disability and the alleviation of pain and distress, and that account should be taken of spiritual, psychological, moral and physical factors. However, we must also emphasise the importance of external factors such as the existence of God, the laws of nature and the sanctity of life in establishing both the best interests of society and those of the individual.
In any event, Society must have an interest in maintaining the good health and well being of its members, even if it is accepted that it has an 'interest in permitting the sort of conduct' [in question] (4.24) (which we would understand as referring to contact sports, etc., but not sado masochistic practices).
Those of us who are in medical practice entirely agree with you (4.38) that definition of seriously disabling injury by length of incapacity is unacceptable since it is largely subjective and not capable of objective measurement.
Part V Capacity to Consent. (Draft Bill 12, 13, 14, 17 & 18)
In general terms we are concerned that inability to communicate may be fluctuant, dependent on the effort made to overcome it, and could become a back door to defining incapacity.(Submission to Lord Chancellor Sect 2) In the present context, however, provided a safety first approach is adopted, there should be no problem. The phrase 'broad terms and simple language' seems to us too imprecise, most particularly in matters relating to sexual relationships, where emotional, psychological and moral issues are all of great importance in making decisions.
We would wish to see the present legal position regarding the age of consent to sexual intercourse or indecent assault maintained. (5.8)
Part VIII Medical and Surgical Treatment. (Draft Bill 31 & 32)
As we expressed in our replies to both Consultation Papers Nos 119 and 129 we consider abortion always to be wrong, are opposed to non-therapeutic sterilisation and do not believe that any non-therapeutic research should ever be permitted on an incapable adult. (CMQ 11/91 p17 & 11/93 p32)
We are concerned lest the reference to 'properly approved medical research' (at 8.51 (2)/ proposal 32.(2)) should be taken to transfer ethical responsibility from a doctor to the local research ethics committee. The responsibility of such committees is to protect the public from irresponsible experimentation (ie. to say a proposal is not unethical), but it is not their duty to endorse any proposed research as of foreseen value or to accept any legal responsibility for what is done.
Part IX Circumcision, tattooing, cosmetic piercing, branding and scarification. (Draft Bill 33, 34, 35, 36 & 37)
It would seem to us that the existing definition of, rules for and legislation concerning tattooing are satisfactory and could readily be extended to cover piercing below the neck, branding and scarification. We consider it appropriate to legislate for these practices as well as the practice of tattooing, and to extend the statutory controls to cover them.
We endorse your proposals on male and female circumcision.
Part X The infliction of injury by consent for the purpose of causing pain. (Draft Bill 38)
We believe that fully mature sexuality is to be found in a sexual act that is consensual, heterosexual, vaginal, loving (as opposed to promiscuous) and committed, and therefore a marriage relationship. The act itself, open to procreation, should also serve to affirm and deepen the mutual relationship.
We note the close connection, in the course of history and even currently, of the Catholic Church with 'mortification of the flesh'. However, we endorse the disappearance from main stream Catholic spirituality and pastoral teaching of the more extreme forms of corporal infliction such as flagellation. We do not think the existence of such practices in the past can be taken as a sound basis for establishing their legal status today.
From the point of view of Catholic psychology the variety of sado-masochistic practices outlined in the report (-list?-(SS 3)) are seen as immature and in a formal sense immoral. The need to inflict and experience pain for the purpose of sexual gratification is a mark of immaturity and suitable for psychotherapeutic investigation.
We endorse your proposals with regard to age (at 10.55).
Part XI Lawful Correction.(Draft Bill 39)
We accept the possibility of a limited degree of corporal punishment by parents, but are opposed to the use of formal corporal punishment in schools and institutions.
Part XII Sports, Games, Martial Arts and Dangerous Exhibitions. (Draft Bill 40, 41, & 44)
Some of us are opposed to compulsory physical contact sports in schools.
Part XV Offences concerned with Public Morality and Public Decency.
We are concerned that putting in place 'licensing arrangements' (similar to those in Part IX) for brothels to 'ensure & promote safe & hygienic practices' (15.12) would, however well intended, serve merely to foster the existence and use of such establishments
President of the Catholic Union of Great Britain
Master of the Guild of Catholic Doctors
Chairman of the Joint Ethico-Medical Committee