Tongue splitting, ear removal and branding - the limits of consent as a defence to extreme body modification (Part II)
Split ‘lizard’ tongues, tattooed eyeballs, genital beading and ear shaping are just a handful of unconventional body modification procedures people undergo in the UK every day.
The term ‘body modification’ covers everything from the mainstream practices of piercing and tattooing, to the more esoteric procedures of scarification and eyeball implants. These procedures are commonly offered by registered practitioners in shops and parlours, which are licensed and regulated by local authorities. However, while cosmetic piercings and tattoos have been accepted as the norm, the legality of some more radical procedures has, so far, been far from clear.
In March 2018, the Court of Appeal found that certain body modification procedures did in fact amount to serious harm and wounding, and that the customer’s consent could not amount to a defence for causing these ‘injuries’. In light of this, practitioners currently carrying out these procedures may need to revaluate their practises.
Facts: The appellant, BM, was a registered tattooist and body piercer who also provided body modification. He had no formal medical qualifications.
The three counts of causing actual bodily harm were based on the following procedures that BM had performed, all without anaesthetic:
It was accepted that all the customers had consented to BM carrying out these procedures, so the judge was asked to consider whether their consent could amount to a defence to causing such serious, irreversible injuries.
The judge relied on the infamous case of R v Brown(A)  1 A.C. 212, HL, which we discussed in our previous blog on BDSM here.
In Brown, the House of Lords convicted a group of men for their involvement in consensual sadomasochistic sexual acts over a ten year period. Even though these men consented entirely to activities including genital maltreatment (including the application of hot wax and sandpaper), ritual beatings and branding, it was found that consent does not negate criminal liability when bodily harm or more serious injury was intended or caused.
Although Brown is now over 20 years old, the finding that it would not be in the public interest to allow members of the public to wound each other without ‘good reason’ remains good law. There are various exemptions to the rule, such that certain practises of causing harm are considered to be in the public interest. The obvious example is in boxing and martial arts, but there is also an exemption for tattoos and piercings, provided they are for decorative purposes and not provided for sexual gratification. The rationale for the distinction remains unclear.
BM submitted that the procedures he carried out were a natural extension of body piercing and tattooing. ‘Body adornment’ does not attract criminal liability and so body modifications should be allowed in the public interest, as he argued, it preserves the personal autonomy of his customers.
Unfortunately for BM, the court did not accept that these procedures were analogous to piercings or tattoos. It was found that they in fact constituted:
‘medical procedures performed for no medical reason and with none of the protections provided to patients by medical practitioners…the personal autonomy of the appellant's customers did not justify removing body modification from the ambit of the law of assault.’
This leaves body modification practitioners and their clients in legal limbo. While the judge in BM found that these particular acts amounted to actual bodily harm, there is a wide spectrum of procedures which may or may not be deemed illegal. The uncertainty is wholly unhelpful and a tad “vanilla”.
For example, it is unclear whether inserting implants under the skin for decorative purposes would be deemed to fall into the tattoo exemption suggested in Brown, or whether it crosses the line into serious harm to which consent cannot be a defence.
The court in R v Wilson  Crim LR 573 found that a husband consensually branding his wife’s buttock with a hot knife fell within the category of a ‘lawful infliction of actual bodily harm’ because it was in the confines of a marital relationship. The husband in this situation was not a registered body modification specialist, and it is unlikely that the knife used was sterilised to meet the health and safety requirements of a licensed shop or parlour. This perhaps exemplifies the court’s confusion in trying to differentiate between tolerable and intolerable consensually inflicted bodily harm. The bizarre exemption of allowing this sort of act to happen between a married couple, with no regard for the health and safety of the person being branded nor the capability of the individual carrying it out, seems inexplicably inconsistent.
The demand for these procedures will inevitably continue, regardless of their legality. It is at least arguable that the law needs to be reviewed in a way which allows for individual choice, effectively regulates these procedures and ensures that these practitioners are properly trained. The public interest in ensuring that practitioners can carry out these procedures on informed, willing customers in a safe and controlled environment without the looming prospect of prosecution is obvious. If certain practices of body modification are found unlawful, we are in danger of seeing the industry driven underground.
Should you have any questions about the issues covered in this blog, please contact a member of our Criminal Law team.
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