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Body modification – when consent is not a defence

Tongue splitting: one of the procedures the defendant was convicted for. Shutterstock

The conviction in England of a body modification practitioner for causing grievous bodily harm with intent will have come as a surprise to many practitioners of body modification.

The charges relate to three procedures carried out between 2012 and 2015. The procedures the defendant had performed were a tongue splitting, the removal of an ear, and the removal of a (man’s) nipple. All the procedures had been undertaken at the defendant’s tattooing and piercing studio and had been performed with the consent of the clients.

There are limits on the harm individuals can consent to. Most people are aware that the law does not sanction euthanasia, yet may be unaware that giving consent to the infliction of lesser harms may also not absolve those causing the injury from criminal charges.

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This is a longstanding legal principle. Where actual bodily harm or above is inflicted upon a person with no good reason, in public or private, the consent of the victim is irrelevant. Whether there is a “good reason” is a matter for the courts to decide.

For example, it has long been accepted that things such as regulated sports and games, reasonable surgery and male circumcision are activities for which lawful consent can be given. If consent is given and the client is of the prescribed age, piercing and tattooing have also been accepted as lawful. But there is no definitive list of those activities to which consent will provide a defence to bodily harm and it is for the courts to decide in any novel circumstance whether there is a good reason.

The ruling

This was an issue in the most recent case. At a preliminary hearing in Wolverhampton, the Crown Court judge had ruled that the consent of the clients to these body modifications did not make the consequent injuries lawful. In other words, the consent of the “victims” did not mean that an offence had not taken place.

The case reached the Court of Appeal as a result of this ruling – heard as the case of R v BM. It is unusual for the Court of Appeal to hear an appeal before trial, but here the court had been asked to decide whether the Crown Court judge was correct to rule that there was no defence of consent.

The Court of Appeal held that the judge was correct and, in these circumstances where serious injuries were caused, the consent of the clients did not mean that offences were not committed. The court considered whether the procedures that had been performed were analogous to tattooing and piercing and decided that the injuries caused by the removal of body parts and tongue splitting were far more serious than those incurred in the course of those lawful activities.

They also felt that there was no “good reason” to allow consent to absolve the appellant of liability. They stressed that the procedures posed a serious risk to health and were surgical in nature – yet they were performed for no good medical reason by an individual who was not medically trained.

This left the defendant with no defence to the charges of grievous bodily harm and when the case was sent back to the Crown Court he entered a guilty plea.

When it comes to body modification, the law is hazy. Shutterstock

This all sounds perfectly sensible, yet it ignores the fact that the law allows us to consent to many activities that are inherently foolish or dangerous. For example, we may opt to have a full facial tattoo or to engage in boxing. We may consent to sex with a partner who we know to have HIV and run the risk of infection.

Too much risk?

This reasoning has a long history. It follows the authority of Brown, a case decided in the early 1990s, that any student of the law – and all legal practitioners – will be familiar with. In the Brown case, a number of men engaged in sadomasochistic sexual activities, inflicting consensual injuries upon one another. This case established that there was no good reason for allowing consent to negate liability for the injuries caused. The risks that flowed from the defendants’ actions – both to one another and to society as a whole – justified criminalising their activities.

Read more: Where should the law draw the line between consent and culpability in sadomasochism?

In R v BM, the Court of Appeal voiced similar opnions; they could not understand why anyone would wish to have extreme body modification procedures and believed the courts should protect individuals from engaging in this risky behaviour.

The difficulty with this decision is that we are still left with no clear statement of the law in relation to “body mods”. The conviction was obviously for the three procedures the defendant had performed. However, the Court of Appeal’s judgement was not restricted to tongue splitting and the removal of body parts. The court stated that “body modification” procedures (other than tattooing and piercing) that result in injury are unlawful. This may then include other procedures that have become fairly popular, such as ear pointing (removing part of the ear to give it a pointed appearance), scarification or branding.

Read more: The new tattoo: is body branding legal?

More importantly, the Court of Appeal has not clarified the legal position for procedures that result in less serious harm, such as trans or sub-dermal implants – the insertion of materials under or partially under the skin. These may also be unlawful to perform as they are not strictly analogous to piercing. Hopefully, a sensible prosecution policy will prevent such cases reaching the courts.

As I have suggested previously, we are now in desperate need of clarification of the legal position. The Court of Appeal was seemingly oblivious of the popularity of body modification procedures and is likely unaware that it has left body modification practitioners unsure of whether they are operating within the limits of the law. This now needs to change.

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