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  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  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.