Private Sexual Morality

However, Lord Mustill highlighted this is a question of private sexual morality, he argued that if repugnance and moral objection is removed, the remaining reasons would not be sufficient to justify the conviction. One should note that the sado-masochistic activities had been carried out for ten years without complaint from general public. Although the victims were died from AIDS, there was no empirical evidence introduced that S/M activities do in fact result in these harms . Furthermore, gay men are the most severely affected by HIV but homosexual activity is legal. To allow moral constrains the people for what they do in private is to encroach on legitimate individual liberty . The public interest decided based on judges’ personal

However, Feinberg articulated that ‘legal moralism’ and paternalism are insufficient grounds for criminalising conduct . He convincingly argued that under a liberal scheme for criminalisation, ‘the Harm and Offence Principles’ diminish the good reasons (critical moral justifications) for criminal prohibitions . The exposition of harm principle is provided by J.S Mill, stating the state can only exercise its power over any state members when its purpose is to prevent harm to others . The harm principle has negative and positive thrusts, negative thrust limits state’s power to punish, it gives political priority to individual freedom from coercion rather than collective goods such as morality or welfare, self-harm is insufficient to become a crime . While positive thrust justifies state’s coercion, it supports harm prevention . From religious perspective, the true freedom exists only in the service of good and just, other than that is an abuse of freedom and lead to slavery of sin. J.S Mill opined the state should not encroach individual autonomy based on public morality as criminal law is not used to promote moral values but protecting against harm . Liberal does enforce moral but only if that part of morality constituted by harm principles. In Brown, the consent was limited for legal

Applied to punishment, utilitarianism holds that punishment is justified to the extent that it promises to produce better consequences than a failure to punish. Utilitarian penal philosophy is concerned with crime reduction, a necessary adjunct to the advancement of social welfare . In AG’s reference (No.6 of 1980), the court held that it was unlawful to cause bodily harm for no good reason. The consensual harm must involve some form of social utility, that is, "it must be shown that the public interest positively requires that such conduct be permitted ’’ . In Brown, the punishment of the defendants might be justified on the basis of utility as the importance of protection of public health and moral outweighs the harm to individual. The happiness of the majority will be increased by living in a moral society. However, the calculation of happiness would be problematic as sentiment is not a mathematics question despite Bentham introduced felicific