Body modification: consent and regulation

Transcription

1 Body modification: consent and regulation Rebecca Olle RUSSELL KENNEDY LAWYERS Abstract In R v BM, the UK Court of Appeal was required to address interesting issues relating to criminal offences in the context of body modification procedures. Introduction The recent UK case of R v BM 1 (BM) has brought into focus the burgeoning body modification industry. Body modifications can include anything from simple ear piercing to amputation. The industry is not wellunderstood by members of the public. Body modifications of the kind in BM are nonetheless offered by tattoo artists and body piercers, with the consent of their clients, in unregulated and sometimes unsafe practices. The laws of consent do not protect body modification practitioners from criminal sanction. Further, the failure to properly regulate body modification procedures means that those who seek it out are putting themselves at risk. R v BM The case of BM is an appeal from an earlier decision of the Crown Court at Wolverhampton before his Honour Nawaz J. The defendant was charged with three individual counts of wounding with intent to do grievous bodily harm under s 18 of the Offences Against the Person Act 1861 (UK) (UK Act). 2 A question arose before the Court of Appeal as to whether consent could provide a defence to a breach of s 18. The defendant, BM, is a tattooist and body piercer, and registered with the relevant local authority to perform such procedures. 3 The three incidents related to other body modification procedures beyond tattoos and piercing. The procedures performed were: the removal of a customer s ear the removal of a customer s nipple the division of a customer s tongue to create a snake-like effect It was accepted by the prosecution that each of the three customers provided valid consent to the procedures. 4 The Court of Appeal held that the defendant undertook a series of medical procedures performed for no medical reason, and as such consent could not be a defence to the breach of s 18 of the UK Act. 5 In the Crown Court, Nawaz J relied upon the welldocumented case of R v Brown 6 (Brown) in determining that a client s consent is no defence to the defendant s actions. 7 That case came about through injuries caused during the course of consensual sadomasochistic acts between a group of men. Brown was also relied upon heavily in the appeal. Their Honours, Lord Burnett of Maldon and Nicol and William Davis JJ also referred to Brown when rejecting the defendant s submissions that body modification should be included in the list of activities excepted from the criminal law of assault. 8 These activities excepted from the law of assault include piercing, contact sports and surgery, such that consent may be a defence to an otherwise criminal act under s 18 of the UK Act. The Court of Appeal considered that there are two features that underpin the decision in Brown to provide a defence where there is alleged assault. These are: 9 whether the activity produces a discernible social benefit (for example, sports); or that it would be unreasonable for the common law to criminalise the activity if engaged in with consent by the injured party (for example, surgery) Brown was decided following the decisions of three cases. R v Donovan 10 (Donovan) was, like Brown, a matter about sexual gratification. In that case, the defendant was convicted of indecent and common assault for caning a 17-year-old girl. 11 His defence was her consent. 12 The Criminal Court of Appeal held that if Donovan s acts were likely or intended to cause bodily harm, then he was committing an unlawful act and the victim s consent could provide no defence. 13 In BM the Court of Appeal noted that actual bodily harm means any injury calculated to interfere with the health and comfort of the [victim], 14 but must be more than transient or trifling. 15 The Court of Appeal also referred to R v Coney 16 (Coney) and Attorney General s Reference (No 6 of 1980) 17 (Attorney General s Reference) both decisions concerning consent to fighting. Attorney General s Reference is authority against consent to physical fighting. In that case, two young men 94

2 were arguing in a public place and decided to resolve the dispute with a fistfight; 18 one man sustained bruising and a bleeding nose as a result. 19 It was held that, where actual bodily harm occurs, consent will not vitiate the criminal behaviour, regardless of whether the conduct is in private or public. 20 As the fight was not properly conducted, like boxing, the incident could not fall within the established exceptions of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. 21 Coney was a matter concerned with the secondary liability of spectators at a prize fight. It was found that, as the prize fight itself was illegal and injurious to the public, 22 the participants were unable to consent to the assault, and further, that the spectators could be prosecuted as secondary participants in any offence committed by the fighters themselves by encouraging the fight. 23 However, the case turned on an examination of whether the spectators were merely present or actively present and encouraging the fight; and the conviction was overturned. 24 The Court of Appeal in BM noted that the special categories which are referred to in these cases are at best ad hoc, and reflect the values of society recognised from time to time by the judges. 25 Lord Slynn of Hadley noted this in his dissenting judgment in Brown, stating that: If a line has to be drawn, as I think it must, to be workable, it cannot be allowed to fluctuate within particular charges and in the interests of legal certainty it has to be accepted that consent can be given to acts which are said to constitute actual bodily harm and wounding. 26 Generally, these cases were decided based on arguments about the public interest against a culture of violence. 27 Evidence was given in BM that the defendant had undertaken various short courses in relation to body modification, but had no relevant medical qualification or registration to render him able to perform these procedures legally. 28 In particular, it was noted that he had no relevant medical qualifications that would enable him to carry out such surgical procedures as he had performed and deal with adverse consequences, nor was he in a position to assess the mental health of his customers. 29 The Crown called on expert evidence from an ear, nose and throat consultant and a consultant plastic surgeon to demonstrate that no qualified surgeon would perform these procedures in the manner undertaken, as they are too high-risk and without therapeutic benefits. It was submitted that a surgeon would never perform these procedures for purely aesthetic reasons. 30 In particular, tongue splitting would not be performed by a surgeon under any circumstances, due to the risks associated with infection, excessive bleeding, swelling and postoperative impacts on speech and eating. 31 Consultant plastic surgeon, Mr Nigel Mercer, also submitted that if an ear were to be removed for medical reasons it would be done in an operating theatre under sterile conditions, and post-surgical care would be provided for some months after the procedure. 32 A medical practitioner would also contain and record consent in the approved forms. 33 In addition, the experts submitted evidence that before cosmetic surgery, a practitioner will meet with the patient on at least two occasions as required by the General Medical Council in the UK. 34 During these meetings, the practitioner will explain the complications and risks of the surgery and monitor the patient for signs of psychiatric or psychological problems (referring them to a specialist if required). 35 Of particular concern would be the possibility that the patient was suffering from Body Dysmorphic Disorder if presenting with such extreme body modification desires. 36 The Court of Appeal held that new exceptions to the rule in Brown should not be created on a case-by-case basis, except where there is a close analogy to an existing exception. 37 BM s submission that body modification is akin to tattooing or piercing was not accepted. 38 Further, the Court of Appeal held that the criminal jurisdiction is not the forum in which to hold an inquiry into this matter, stating that it was much more suited to government and the political process. 39 Their Honours found that consent could provide no defence to the actions of the defendant, and that the personal autonomy of the defendant s clients is not sufficient reason to prevent the defendant being in breach of s The Court of Appeal considered that the injuries (removal of an ear and nipple, and laceration of the tongue) caused by the defendant s actions are too severe to permit consent to be a defence, and believed that even if the legislature relaxed laws of consent, in this instance their judgment would remain the same. 41 This is because of the risk that some, although not all, of those who seek modification will have an identifiable mental illness, which may go undiagnosed. 42 The protection of the public was held to be paramount, and the care that should be provided must be to the level provided by registered practitioners. 43 The court likened this situation to that of gender reassignment surgery, noting the level of care, degree of inquiry and support given to a patient before those procedures undertaken. 44 The defendant accepted that if the decision at first instance was upheld, then no defence would be presented to a jury

3 The public interest Social norms have an important role to play in the question of consent to assault. It was held in Brown that contact sports and surgery are exceptions to the rule that you cannot consent to serious assault, as they are common practices. In Attorney General s Reference, the court noted that it did not necessarily follow the dicta of Coney and Donovan because those decisions were appropriate only at the time of the decision, and perhaps not in the modern day. 46 Body modification, in the context of BM includes procedures such as scarification, tongue splitting, branding and beading. Other forms of body modification have become accepted practice. Cultural tattooing, ear and body piercing, laser hair removal and dermal fillers are all examples of body-modifying procedures that are culturally accepted. The nature of some forms of body modification are such that they cannot truly be said to be tattooing to fall within the exemptions of the common law, nor can they fall within the licensing regime required by statute. Most forms of extreme body modification can be defined as skin penetrating (including beading and tongue splitting), and will fall within the ambit of non-binding guidelines. 47 Body modification and consent In the UK, it was accepted that branding within a marital relationship is permitted because it was found to be the case of a husband aiding his wife for personal adornment. 48 As the primary purpose of the branding was personal adornment, not gratification, consent was held to be a valid defence. 49 This is hard to reconcile with some other forms of body modification, albeit perhaps not those in BM. It seems that the difference for the court in R v Wilson 50 lay in their reluctance to intrude into the marital home. The judges in BM distinguished this case and Brown, finding that the harm done to the defendant s clients were too severe to be able to be consented to. 51 As British case law, Brown has a persuasive influence on Australian courts. The state of the law in Australia has been developed largely in the Victorian courts, where cases have been brought concerning consent to strangulation, consent to suffocation and consent to being infected with the HIV virus. 52 Body modification has not been considered by the Australian courts. However, a New South Wales man was arrested on 1 May 2018 for female genital mutilation. He allegedly used a hot brand to burn a woman s labia majora at his business premises in Erina. No plea was entered and the matter was adjourned to 20 July Following this, the NSW Minister for Health, Brad Hazzard, has indicated that tighter controls will be implemented. Kellam JA in R v Stein 54 (Stein) determined that the most accurate statement of Australian consent laws is found in Vincent J s judgment in R v McIntosh. 55 That case concerned erotic asphyxia and bondage. In that judgment, he said: First, it is not, of itself, and I repeat that expression, of itself, in the case of consenting adult persons, contrary to the law of this jurisdiction to engage in activities that could be described as bondage or sexual sadomasochism. Second, the possibility that an activity involves the application of physical force to another and is accompanied by a real risk of even quite serious injury does not, of itself, render that activity unlawful. If that were the case many sporting contests would become unlawful. Third, apart from some special circumstances which the law has guarded carefully, and which are not present here, no recognition will be accorded to the consent of an individual to the infliction of significant physical injury upon himself or herself. In my opinion, if the sadomasochistic activity or bondage activity to which a victim consents involves the infliction of any such injury or the reckless acceptance of the risk that it will occur, then the consent of the victim will not be recognized. 56 Stein approached the character of the injury caused not by reference to actual or grievous bodily harm, but using the term serious physical injury. 57 This term has not been defined in this context, as it was a removal from the language and threshold in Brown. 58 Approximately 12 years later in Neal v R, 59 it was held that a person can lawfully consent to the risk of HIV or any other sexually transmitted disease if there is informed consent, as long as the consent is communicated to the offender. 60 This was determined based on an analysis of Brown and Lord Templeman s judgment which stated that there is a difference between harm incidental to an activity, and harm which is inflicted for the purpose of cruelty. 61 As such, the state of the law appears to be rather ad hoc in Victoria and in Australia. It is unclear how the courts would determine a case such as BM s if consent was raised as an issue. However, as the body modification industry is largely unregulated, it is likely that a similar outcome would occur, as clients consent would not cure the largely unregulated, and often underground, industry. Framework for registration The legislative framework in the UK requires tattoo artists and body piercers to register under the Local Government (Miscellaneous Provisions) Act 1982 (UK). 62 Under this Act, the local council may determine who may be licensed, where their premises may be located and how much a licence may cost. 63 The council may also make by-laws about the cleanliness of the premises, as well as introducing infection and hygiene control for 96

4 the premises, practitioner and instruments used. There is a gap in the regulation that prevents body modification procedures being performed on these premises, as there is no relevant licensing regime. BM s case was brought because he was deemed to be performing the work of a surgeon without registration. 64 The regime in Australia is very similar. Local government maintains licensing of tattoo artists and body piercers, for example through the Public Health and Wellbeing Act 2008 (Vic). In Victoria, tattoo artists, beauticians and practitioners who carry on a business involving skin penetration (such as most body modification procedures) must register their business and are guided by the Health Guidelines for Personal Care and Body Art Industries 65 (Health Guidelines). 66 The Victorian Department of Health and Human Services has published the Health Guidelines indicating compliance with these guidelines will help businesses fulfil their legal responsibility to provide a safe service, such that they do not contravene Australian Consumer Law standards. However, there is no legal requirement that service providers do so. Further regulation is in place for health care providers and day medical centres, where forms of cosmetic surgery and body modification are carried out, such as the insertion of dermal fillers or non-surgical cosmetic modifications. Body modification is not covered by any of these registrations, as they typically relate to surgeries that require anaesthesia and the registration of medical practitioners. As such, the position remains much the same as in the UK. The future of body modification procedures and practitioners Body modification is a way of expressing individuality. While personal autonomy is valued in our society, the law has not yet caught up and prohibits people from consenting to these procedures. Parliamentary regulation of this industry would enable safer practice, bringing it in line with tattooing and body piercing. The case of BM demonstrates that practitioners do not want to harm their clients. The practitioner undertook courses and used sterilised instruments such that a tattoo artist might, however, there are no further measures he could take to prevent falling afoul of the legislation. It is only a matter of time until body modification regulation catches up with this growing industry. Rebecca Olle Law Graduate Russell Kennedy Lawyers ROlle@rk.com.au Footnotes 1. R v BM [2018] EWCA Crim Above, at [1]. 3. Above n 1, at [6]. 4. Above n 1, at [1]. 5. Above n 1, at [42]. 6. R v Brown [1994] 1 AC Above n 1, at [2]. 8. Above n 1, at [35]. 9. Above n 1, at [40]. 10. R v Donovan [1934] 2 KB Above, at Above n 10, at Above n 10, at 507. The jury was directed that consent was vital, and it was found that the prosecution failed to show an absence of consent; the conviction was therefore quashed. 14. Above n 1, at [22]. 15. R v Miller [1954] 2 QB 282 at R v Coney (1882) 8 QBD Attorney General s Reference (No 6 of 1980) [1981] EWCA Crim Above. 19. Above n Above n Above n Above n 16, at 539 per Stephen J. 23. Above n 16, at Above n 16, at Above n 1, at [24]. 26. Above n 6, at As indicated in above n 1, at [23], referring to Lord Lane CJ in above n 17, at 718 and Above n 1, at [8]. 29. Above n 1, at [8]. 30. Above n 1, at [13] and [17] [19]. 31. Above n 1, at [19]. 32. Above n 1, at [15]. 33. Above n 1, at [14]. 34. Above n 1, at [13]. 35. Above n 1, at [13]. 36. Above n 1, at [20]. 37. Above n 1, at [41]. 38. Above n 1, at [42]. 39. Above n 1, at [41]. 40. Above n 1, at [44]. 41. Above n 1, at [45]. 42. Above n 1, at [43]. 43. Above n 16, at 539 per Stephen J. 44. Above n 1, at [43]. 45. Above n 1, at [3]. 46. Above n

5 47. See for example, Victorian Department of Health and Human Services Health Guidelines for Personal Care and Body Art Industries (2004) www2.health.vic.gov.au/public-health/infectiousdiseases/personal-care-body-art-industries. 48. R v Wilson (1996) 2 Cr App Rep Above, at [49]. 50. Above n Because the harm engaged in in those cases were below the level of really serious injury : above n 1, at [44]. 52. R v McIntosh [1999] VSC 358; BC ; R v Stein (2007) 18 VR 376; 179 A Crim R 360; [2007] VSCA 300; BC ; and Neal v R (2011) 32 VR 454; 213 A Crim R 190; [2011] VSCA 172; BC S Rigney Body modifier appears in court over alleged genital mutilation in Newcastle The Sydney Morning Herald 15 May appears-in-court-over-alleged-genital-mutilation-in-newcastle p4zfch.html. 54. R v Stein, above R v McIntosh, above n R v McIntosh, above n 52, at [11] [14]. 57. R v Stein, above However, the Crimes Act 1958 (Vic), s 15 defines serious injury as an injury that endangers life or is substantial and protracted. This definition was amended after these cases were decided and therefore it is unclear how it could be applied to these instances. 59. Neal v R, above n Neal v R, above n 52, at [72]. 61. Above n 6, at Local Government (Miscellaneous Provisions) Act, ss Local Government (Miscellaneous Provisions) Act, s Above n 1, at [42]. 65. Registration under Div 3 of the Public Health and Wellbeing Act, ss 68 and 69; above n Skin penetration procedures include scarification, tongue splitting, branding and beading as well as tattooing and piercing. See above n 47, Pt B Ch 2. 98