IN a recent English case, BM, the Court of Appeal decided that there was no applicable consent defence under current law to charges of serious non-fatal offences where the defendant (a tattooist and body piercer) had been paid to remove an ear from one client, a nipple from another, and to divide a third customer’s tongue into a ‘lizard tongue’.
All three procedures were stated to have been performed without anaesthetic, possibly because of the legal restrictions on anaesthesia. All three clearly carry risks of infection and other physical harm.
The offences which would be charged in Jersey are slightly different, but the issues would be similar, and the Piercing and Tattooing (Jersey) Law 2002 covers body piercings but not other modifications. This decision raises important questions about the limits of consent under criminal law.
How is such body modification different from more conventional cosmetic surgery, for which informed consent prevents criminal liability?
If average people would not want such modification on their own bodies, does that mean that providing services for those who make informed decisions to have eyeball tattoos, lizard tongues or horns on their foreheads should risk conviction for serious crimes?
How can the law draw justifiable distinctions between body modification and all of the following, currently lawful, activities: male circumcision; tattooing; the risks of being knocked out or seriously injured in boxing or other dangerous sports; ear and body piercings; cosmetic surgery?
The current law regards both cutting off someone’s ear without their consent, and with their full informed consent at their request, in the same way, which is difficult to defend. Many judges have tried but failed to justify the current position under English law, which would apply in Jersey unless the latter deliberately departs from it.
The court in the BM case stated that existing legal precedents disclose ‘no easily articulated principle by which any novel situation may be judged’; some but not all have social benefit; some but not all would be unreasonable to criminalise; some have relatively small risks, others may lead to death.
It is perfectly lawful for a surgeon to perform surgery with a high risk of disability or death, as long as there is informed consent from a person with capacity or authorisation from a court. It is also lawful to perform body modifications on oneself, but is that something which the law should incentivise? There is no existing regulatory body to protect the public, but perhaps the response to that should be to create one.
Does it matter where precisely in a body implants are inserted, if the client has mental capacity and truly consents? If so, on what basis is that distinction being drawn, and does it involve prejudice and assumptions about the behaviour of others?
Some court rulings are particularly suspect from a human rights and equality perspective – for example, the English Court of Appeal, as recently as 1996, said that consensual activity between husband and wife in the matrimonial home was not normally a matter for criminal investigation and prosecution.
The defendant in that case had branded his wife on the buttocks at her request and the Court of Appeal stated that this could be ‘regarded as a desirable piece of personal adornment… We cannot detect any logical difference between [this] and …tattooing.’ Yet groups of men in similar cases had their criminal convictions for consensually inflicted injuries upheld. Marriage would be rather an extreme prerequisite to consent to body modification.
My view is that the law relating to consent is unnecessarily complicated and incoherent both in England and Jersey. I have written before about the dangers of partial law reform – legislators, lawyers and judges need to see the big picture of how legal principles interrelate, or unintended consequences are highly likely to occur. I have also argued that a rational reconstruction of the rules of consent is necessary to achieve consistency and respect for autonomy rights of all people in criminal law. The courts often state that it is for legislators, not judges, to set the rules on complex issues such as these.
Since the draft Sexual Offences Law is about to create a modern, clear and much-improved definition of consent in relation to sexual activity (free agreement), the same should be done for non-sexual offences. Consent is a relevant issue in various branches of law – within criminal law alone, its presence or absence is relevant to non-fatal offences with human victims, sexual offences, and property offences among others, and each of those currently uses different definitions.
I would also suggest that as a general point of principle, if a person who has mental capacity seeks out, and gives informed and enthusiastic consent to procedures performed on their own body, such procedures should not be viewed as criminal.
*Professor Claire de Than is director of studies of the Institute of Law, Jersey