Tongue splitting, ear removal and branding - the limits of consent as a defence to extreme body modification (Part II)

29 March 2019

A registered tattooist and body piercer who also provided body modification pleaded guilty in February 2019 to three counts of causing grievous bodily harm with intent. This resulted in a 40-month prison sentence for “Dr Evil”.

This followed the decision of the Court of Appeal (March 2018) in his case [R v BM (2018) EWCA Crim 560] which 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’.

The facts, as set out in our first blog on this case, are these. The appellant, BM - who we now know as Brendan McCarthy - was a registered tattooist and body piercer who also provided body modification. He had no formal medical qualifications. The three counts were based on the following procedures that BM had performed, all without anaesthetic:

  • removal of a customer's ear;
  • removal of a customer's nipple; and
  • splitting a customer's tongue to resemble a reptile's tongue.

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 court replied no: ‘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.

The judge relied on the infamous case of R v Brown(A) [1994] 1 A.C. 212, HL, which are discussed in our previous blogs on BDSM here and here.

What next for body modification and those that practice it?

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 licenced and regulated by local authorities. 

However, while cosmetic piercings and tattoos have been accepted as the norm, the more radical procedures could fall foul of the law. In light of this, practitioners currently carrying out these procedures need to revaluate their practises.

Further information

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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