Consent, criminal law and body modification

I enjoyed reading this article by Samantha Pegg about the legality of body modification. It addresses the criminal law relating to consent, which is always of interest, not least because it forces us to confront, fairly head-on, the relationship between law and policy, and the ways in which law accommodates sometimes competing philosophical priorities.  The article caused me to reflect both on the specific issue of the legality of body modification, and the broader issue of the ‘acceptability’, in a liberal legal system, of the different motivations sitting behind an act of modification.

I’m not aware of a huge legal literature in this jurisdiction on body modification and consent, but reading Pegg’s article put me in mind of this by Lois Bibbings and Peter Alldridge from around the time of Brown [1993] UKHL 19, the case around which the law continues to turn. Simon Cooper and Mark James have also addressed the issue in passing, in their treatment of pain as entertainment – an article which also contains the only scholarly consideration of Jackass I have come across.

On the issue of the legality of body modification (which itself is a catch-all term referring to a wide range of practices), I am sympathetic to Pegg’s suggestion that the issue is not settled. The mechanics of some forms of body modification may be such that they cannot truly be brought within the ‘tattooing’ exemption suggested in Brown, or indeed within the range of licensable activities countenanced in local government legislation.  On that basis, there is a reasonable case for saying that some body modifications may not be tolerated by law.  Wilson [1997] QB 47 (the ‘consensual-marital-buttock-branding-with-a-hot-knife’ case) suggests others may be tolerated, notwithstanding that they amount to intentionally caused bodily harm of a level which would ordinarily be unlawful.  I hesitate to set too much store by Wilson which seems to rest in part on a rather shaky marital exemption which looks ridiculous now, and was creaking irreparably even at the time.  But it does at least seem to countenance the possibility that some, even non-licensed, modifications (the case refers to an ‘adornment’) can be lawful.

I suspect that courts are unlikely to busy themselves with what goes on in a licensed tattooing establishment, provided it is consensual and that it bears some kind of rational relationship with the establishment’s core business.  Better, the argument would go, that activities, albeit that they may be not strictly licensable, take place in licensed premises, and benefit collaterally from the conditions – hygiene etc – which justify the licence.

How about the broader issue of the legal relevance of the different motivations which might underlie an act of body modification?  A liberal legal system should start form a position of neutrality between motivations for consensual acts of modification (different considerations are clearly in play when a modification is non-consensual), provided that those motivations are themselves consistent with liberalism.  So, on a first look, it should be neither here nor there whether a modification is motivated by aesthetic, cultural, religious, sexual, commercial, or other considerations, or any of those in combination.  Moreover, assuming consent, it is not clear that regulated or licensed modifications are inherently preferable to those undertaken outside regulated or licensed contexts. As it happens, I suggest that regulated etc modifications are indeed preferable, but for a different reason – namely that all things being equal, unanticipated adverse consequences might be less likely to flow from regulated than from unregulated modifications (eg, a clean, professional establishment is less likely to be associated with post-modification infection than a backstreet provider).

So, in considering the proper role of criminal law, I should start by not caring if you want to have a piercing to enhance your sexual enjoyment, if you want to be scarified to indicate your membership of a cultural group, or even if you want to have a corporate logo tattooed on your body because you are being paid to be a walking advert.  I may think your motivations foolish; I may seek to dissuade you from undergoing the modification; I may welcome stringent licensing conditions being applied to those who carry out modifications on/for others; but in the absence of other considerations I would not argue that the criminal law should interfere with your consensual choices.

What other considerations might there be?

Perhaps I could argue that there are certain motivations which are fundamentally objectionable – the ‘walking advert’ example may arouse some revulsion – not because it necessarily depends on some kind of ‘sanctity’ of the body, but because it looks like one is allowing one’s body to be treated as a means to a (arguably rather low-grade) end, rather than for ‘self’-expression.  (There is nice (and of course, philosophically richer than I could manage) discussion of some ideas of whether some things are beyond price in Michael Sandel’s excellent ‘What Money Can’t Buy’).

In the absence of fundamental objections, perhaps we need to let consent do most of the work.  Let’s take scarification as an example: it may be that as things stand, cultural scarification is not permissible at law, consent notwithstanding – I’m not aware of any scarification cases other than Adesanya (1974) which (a) was a trial decision; and (b) seems not to have turned on consent (see Leon Shaskolsky Sheleff, The Future of Tradition, p. 365, for a discussion of the case) and it may be that the Adesanya approach has been impliedly superseded by Wilson (is it necessarily better or worse to have a bodily adornment for cultural than marital reasons?).  In any event, I am happier saying (i) that an Adult A undergoing consensual cultural scarification should be permitted do so (and that the person B administering the scars should not be criminally liable) because A is a consenting adult, than I am saying (ii) that they should be permitted to do so because, although we normally wouldn’t permit scarification, we’ll make an exception for something like ‘genuine cultural motivations’.  The latter approach risks privileging some motivations, for no good reason.  If I want to be scarified for purely aesthetic reasons (or indeed for a combination of aesthetic and other reasons, or, perhaps, even for no particular reason), then, without more, that is not self-evidently better or worse than being scarified as an expression of connection with a cultural group. There are of course proper arguments to be had about the quality of different motivations for action, and I wouldn’t agree that, to take the Bentham / Mill example, pushpin is necessarily as good as poetry, but I am not sure that the criminal law is the ideal site for resolving such disputes.

I am also cautious about motivations which appeal to supposed cultural or religious (or indeed social) ‘imperatives’. Not only are such ‘imperatives’ sometimes disputed in fact, but they also seem to entail a claim to the curtailment of choice in which the criminal law should not collude. If, on the facts, you, as an adult, consent to a body modification – notwithstanding any mixed feelings on your part – then that consent should be as valid if you are doing it as part of a tribal initiation as if you are doing it to look like everybody else in your band. Conversely, if you don’t consent, then the liability of the person doing it to you should not depend on whether they are your bass player or your spiritual guide.

The lack of coherence of the Brown exemptions (horseplay, seriously?) suggests that the law has not so far found a sound way of differentiating tolerable from intolerable consensually inflicted bodily harm.  Better perhaps to let consent itself carry the weight and to focus energies on the task of separating those instances where consent is present from those where it is not.  For sure, this may not always be straightforward, especially where choice and ‘imperatives’ collide, but it may be less troublesome than looking to criminal law to articulate coherent policy distinctions between acceptable and unacceptable motivations for body modification.

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3 comments

  1. Samantha Pegg · · Reply

    Thanks Ben, I was hoping a sensible response would appear. Ideally we would just move to regulating body mods as a general category with the H&S considerations that will bring. The difficulty is that will, as you say, bring the issue of what is socially acceptable to the forefront and the law is poorly equipped to tackle this. The idea of the legislature or the courts providing a list of acceptable body mods fills me with dread, but the idea of an 18-year-old consenting to this kind of procedure http://news.bme.com/tag/cheek-piercing/ makes me equally uncomfortable.

    I’d start we the proposition that we do need clarity so there can be proper regulation – but regulation of what? As a liberal I’d like to say consent could be given to any body mods (where that consent is sound, regardless of its rationale) but we know there has to be limits – and FGM is perhaps the best example or a prohibition on something that may be a desired and consented to, but is unacceptable. So to properly regulate do we have to come up with a list of procedures, which would then limit autonomy? Or do we leave it to the good sense of those performing body mods?

    1. Thanks for the comment Samantha, much appreciated.

      I don’t think a list of permissible modifications is the way to go. I could imagine that creating fairly non-purposeful arguments at the margins – What’s in? What’s out? Does this particular modification – perhaps hitherto unconsidered – meet the definition of what’s in? Law is not necessarily good at describing the minutiae of complex social practices without looking out of its depth. It’s a short walk from here to ‘“music” includes sounds wholly or predominantly characterised by the emission of a succession of repetitive beats’ (Criminal Justice and Public Order Act 1994, s. 63(1)(b)). I don’t think we can construct coherent distinctions based exclusively on the physical aspects of modifications. Given that I also don’t think that motives give us much help, I gravitate back to consent as the factor which has to do most of the work.

      I acknowledge – and share – the discomfort we may feel when young adults have ostensibly extreme modifications done. That said, young men such as the one referred to in the link in your comment could participate in a range of other dangerous activities without insurmountable obstruction from the law – mountaineering, smoking, boxing, joining the military and dying in conflict. Our discomfort shouldn’t necessarily lead to the involvement of the criminal law.

      I wonder if there are liberal arguments – with a paternalist flavour – in favour of requiring modifications to be graduated: i.e. you go to your modifier and want a 30mm cheek piercing; you haven’t got any piercings at that stage; maybe your modifier shouldn’t be able to do that straight away, your consent notwithstanding; perhaps you should have to start with a narrower piercing, and the wider one becomes permissible after you’ve had that for a while. That said, even if this was conceptually coherent, I don’t see how it could work in practice.

      There might also be sensible liberal arguments in favour of restrictions or prohibitions on significant, irreversible, capacity-reducing modifications (along the lines of the liberal argument against selling yourself into slavery). These issues may be unlikely to arise in practice, but say for the sake of argument that I want to have my legs removed for what I take to be aesthetic reasons. Notwithstanding my consent, we might look sceptically at my friend who offers to amputate them for me, regardless of her surgical skill.

      I agree that Female Genital Mutilation presents particular challenges for an approach to modifications which turns principally on consent. The problem is less pronounced In the context of the significant proportion of FGM practised on children, where prohibition could simply be justified on the basis of a lack of effective consent, coupled with the absence of a compelling reason to render the conduct lawful in the absence of consent. However, where FGM is to be carried out on a (consenting) adult, or even on a (consenting) young person who is the equivalent of Gillick competent, then unless the facts are such that the person in question does not understand what the process involves, prohibition would need to be grounded in something other than consent. A liberal legal system needs to start from a position of neutrality only between those motivations for modification which are themselves consistent with liberalism. The argument would go that FGM is fundamentally at odds with liberalism, being closely associated with the control of women (though we would need to account for the prominent role of women in sustaining the practice) and insufficiently associated with any properly liberal aim. Its prohibition would therefore be justifiable, regardless of the consent of the participants. I think this approach might also help to differentiate FGM, which is the proper object of criminalisation, from practices in relation to which the criminal law should ordinarily not be involved, such as (i) genital piercings, or indeed (ii) cosmetic surgery on the genitals. The more appropriate comparators for those practices are (i) body piercings more generally; (ii) cosmetic surgery more broadly. (I am grateful to @ms_peaceweaver for drawing my attention to a dispute involving the Department of Health about the treatment of genital piercings as FGM http://www.bbc.co.uk/newsbeat/article/31938409/counting-genital-piercings-as-fgm-undermines-abuse-says-union .)

  2. Thanks for the blog, and for drawing my attention to the article in the Conversation, which I had originally missed (sorry, Samantha!). I have taken the liberty of adding a comment to that article, and I will add a similar comment here. There are so many angles to this area of law, in terms of consent to [non]medical treatment and property law conceptions of what you can do to your own body: it might be your own, but do you own it? I touched on a few aspects of this in an article of the Journal of the Law Society of Scotland (“Title to Tissue”, at http://www.journalonline.co.uk/Preview/1014668.aspx ) I barely mentioned the criminal law angle there (sorry), but the property angle is worth considering. I will offer one other criminal law thought – almost every Scots law contemporary of mine fondly remembers a case called HMA v Smart, or the “square go” case. It turns out consenting to a fight to sort out your differences does not remove the possibility of an assault conviction!

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