Body modification: consent and regulation - Russell Kennedy Lawyers
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Body modification: consent and regulation
Rebecca Olle RUSSELL KENNEDY LAWYERS
Abstract In the Crown Court, Nawaz J relied upon the well-
In R v BM, the UK Court of Appeal was required to documented case of R v Brown6 (Brown) in determining
address interesting issues relating to criminal offences in that a client’s consent is no defence to the defendant’s
the context of body modification procedures. actions.7 That case came about through injuries caused
during the course of consensual sadomasochistic acts
Introduction between a group of men. Brown was also relied upon
The recent UK case of R v BM1 (BM) has brought heavily in the appeal. Their Honours, Lord Burnett of
into focus the burgeoning body modification industry. Maldon and Nicol and William Davis JJ also referred to
Body modifications can include anything from simple Brown when rejecting the defendant’s submissions that
ear piercing to amputation. The industry is not well- body modification should be included in the list of
understood by members of the public. Body modifica- activities excepted from the criminal law of assault.8
tions of the kind in BM are nonetheless offered by tattoo These activities excepted from the law of assault include
artists and body piercers, with the consent of their piercing, contact sports and surgery, such that consent
clients, in unregulated and sometimes unsafe practices. may be a defence to an otherwise criminal act under s 18
The laws of consent do not protect body modification of the UK Act.
practitioners from criminal sanction. Further, the failure The Court of Appeal considered that there are two
to properly regulate body modification procedures means features that underpin the decision in Brown to provide
that those who seek it out are putting themselves at risk. a defence where there is alleged assault. These are:9
R v BM • whether the activity produces a discernible social
The case of BM is an appeal from an earlier decision benefit (for example, sports); or
of the Crown Court at Wolverhampton before his Honour • that it would be unreasonable for the common law
Nawaz J. The defendant was charged with three indi- to criminalise the activity if engaged in with
vidual counts of wounding with intent to do grievous consent by the injured party (for example, surgery)
bodily harm under s 18 of the Offences Against the
Person Act 1861 (UK) (UK Act).2 A question arose Brown was decided following the decisions of three
before the Court of Appeal as to whether consent could cases.
provide a defence to a breach of s 18. R v Donovan10 (Donovan) was, like Brown, a matter
The defendant, BM, is a tattooist and body piercer, about sexual gratification. In that case, the defendant
and registered with the relevant local authority to was convicted of indecent and common assault for
perform such procedures.3 The three incidents related to caning a 17-year-old girl.11 His defence was her con-
other body modification procedures beyond tattoos and sent.12 The Criminal Court of Appeal held that if
piercing. The procedures performed were: Donovan’s acts were likely or intended to cause bodily
harm, then he was committing an unlawful act and the
• the removal of a customer’s ear victim’s consent could provide no defence.13
• the removal of a customer’s nipple In BM the Court of Appeal noted that actual bodily
• the division of a customer’s tongue to create a harm means any injury “calculated to interfere with the
snake-like effect health and comfort of the [victim]”,14 but must be more
It was accepted by the prosecution that each of the than transient or trifling.15 The Court of Appeal also
three customers provided valid consent to the proce- referred to R v Coney16 (Coney) and Attorney General’s
dures.4 The Court of Appeal held that the defendant Reference (No 6 of 1980)17 (Attorney General’s Refer-
undertook a series of medical procedures performed for ence) — both decisions concerning consent to fighting.
no medical reason, and as such consent could not be a Attorney General’s Reference is authority against con-
defence to the breach of s 18 of the UK Act.5 sent to physical fighting. In that case, two young men
94 australian health law bulletin July 2018were arguing in a public place and decided to resolve the erative impacts on speech and eating.31 Consultant
dispute with a fistfight;18 one man sustained bruising and plastic surgeon, Mr Nigel Mercer, also submitted that if
a bleeding nose as a result.19 It was held that, where an ear were to be removed for medical reasons it would
actual bodily harm occurs, consent will not vitiate the be done in an operating theatre under sterile conditions,
criminal behaviour, regardless of whether the conduct is and post-surgical care would be provided for some
in private or public.20 As the fight was not properly months after the procedure.32 A medical practitioner
conducted, like boxing, the incident could not fall within would also contain and record consent in the approved
the established exceptions of “properly conducted games forms.33
and sports, lawful chastisement or correction, reasonable
In addition, the experts submitted evidence that
surgical interference, dangerous exhibitions, etc.”21 Coney
before cosmetic surgery, a practitioner will meet with
was a matter concerned with the secondary liability of
spectators at a prize fight. It was found that, as the prize the patient on at least two occasions as required by the
fight itself was illegal and “injurious to the public”,22 the General Medical Council in the UK.34 During these
participants were unable to consent to the assault, and meetings, the practitioner will explain the complications
further, that the spectators could be prosecuted as and risks of the surgery and monitor the patient for signs
secondary participants in any offence committed by the of psychiatric or psychological problems (referring them
fighters themselves by encouraging the fight.23 How- to a specialist if required).35 Of particular concern would
ever, the case turned on an examination of whether the be the possibility that the patient was suffering from
spectators were merely present or actively present and Body Dysmorphic Disorder if presenting with such
encouraging the fight; and the conviction was over- extreme body modification desires.36
turned.24 The Court of Appeal in BM noted that the The Court of Appeal held that new exceptions to the
special categories which are referred to in these cases are rule in Brown should not be created on a case-by-case
“at best ad hoc, and reflect the values of society basis, except where there is a close analogy to an
recognised from time to time by the judges.”25 existing exception.37 BM’s submission that body modi-
Lord Slynn of Hadley noted this in his dissenting
fication is akin to tattooing or piercing was not accepted.38
judgment in Brown, stating that:
Further, the Court of Appeal held that the criminal
If a line has to be drawn, as I think it must, to be workable, jurisdiction is not the forum in which to hold an inquiry
it cannot be allowed to fluctuate within particular charges
and in the interests of legal certainty it has to be accepted
into this matter, stating that it was much more suited to
that consent can be given to acts which are said to government and the political process.39
constitute actual bodily harm and wounding.26 Their Honours found that consent could provide no
Generally, these cases were decided based on argu- defence to the actions of the defendant, and that the
ments about the public interest against a culture of personal autonomy of the defendant’s clients is not
violence.27 sufficient reason to prevent the defendant being in
Evidence was given in BM that the defendant had breach of s 18.40 The Court of Appeal considered that
undertaken various short courses in relation to body the “injuries” (removal of an ear and nipple, and
modification, but had no relevant medical qualification laceration of the tongue) caused by the defendant’s
or registration to render him able to perform these actions are too severe to permit consent to be a defence,
procedures legally.28 In particular, it was noted that he and believed that even if the legislature relaxed laws of
had no relevant medical qualifications that would enable consent, in this instance their judgment would remain
him to carry out such surgical procedures as he had the same.41 This is because of the risk that some,
performed and deal with adverse consequences, nor was although not all, of those who seek modification will
he in a position to assess the mental health of his
have an identifiable mental illness, which may go
customers.29
undiagnosed.42 The protection of the public was held to
The Crown called on expert evidence from an ear,
be paramount, and the care that should be provided must
nose and throat consultant and a consultant plastic
surgeon to demonstrate that no qualified surgeon would be to the level provided by registered practitioners.43
perform these procedures in the manner undertaken, as The court likened this situation to that of gender
they are too high-risk and without therapeutic benefits. It reassignment surgery, noting the level of “care, degree
was submitted that a surgeon would never perform these of inquiry and support given to a patient” before those
procedures for purely aesthetic reasons.30 In particular, procedures undertaken.44
tongue splitting would not be performed by a surgeon The defendant accepted that if the decision at first
under any circumstances, due to the risks associated instance was upheld, then no defence would be pre-
with infection, excessive bleeding, swelling and postop- sented to a jury.45
australian health law bulletin July 2018 95The public interest Kellam JA in R v Stein54 (Stein) determined that the
Social norms have an important role to play in the most accurate statement of Australian consent laws is
question of consent to assault. It was held in Brown that found in Vincent J’s judgment in R v McIntosh.55 That
contact sports and surgery are exceptions to the rule that case concerned erotic asphyxia and bondage. In that
you cannot consent to serious assault, as they are judgment, he said:
common practices. In Attorney General’s Reference, the First, it is not, of itself, and I repeat that expression, of
court noted that it did not necessarily follow the dicta of itself, in the case of consenting adult persons, contrary to
Coney and Donovan because those decisions were the law of this jurisdiction to engage in activities that could
be described as bondage or sexual sadomasochism.
appropriate only at the time of the decision, and perhaps Second, the possibility that an activity involves the appli-
not in the modern day.46 cation of physical force to another and is accompanied by
Body modification, in the context of BM includes a real risk of even quite serious injury does not, of itself,
procedures such as scarification, tongue splitting, brand- render that activity unlawful. If that were the case many
ing and beading. Other forms of body modification have sporting contests would become unlawful.
Third, apart from some special circumstances which the
become accepted practice. Cultural tattooing, ear and law has guarded carefully, and which are not present here,
body piercing, laser hair removal and dermal fillers are no recognition will be accorded to the consent of an
all examples of body-modifying procedures that are individual to the infliction of significant physical injury
culturally accepted. The nature of some forms of body upon himself or herself.
modification are such that they cannot truly be said to be In my opinion, if the sadomasochistic activity or bondage
activity to which a victim consents involves the infliction of
“tattooing” to fall within the exemptions of the common any such injury or the reckless acceptance of the risk that it
law, nor can they fall within the licensing regime will occur, then the consent of the victim will not be
required by statute. Most forms of extreme body modi- recognized.56
fication can be defined as “skin penetrating” (including Stein approached the character of the injury caused
beading and tongue splitting), and will fall within the not by reference to actual or grievous bodily harm, but
ambit of non-binding guidelines.47 using the term “serious physical injury”.57 This term has
not been defined in this context, as it was a removal from
Body modification and consent the language and threshold in Brown.58
In the UK, it was accepted that branding within a Approximately 12 years later in Neal v R,59 it was
marital relationship is permitted because it was found to held that a person can lawfully consent to the risk of
be the case of a husband aiding his wife for “personal HIV or any other sexually transmitted disease if there is
adornment”.48 As the primary purpose of the branding informed consent, as long as the consent is communi-
was personal adornment, not gratification, consent was cated to the offender.60 This was determined based on an
held to be a valid defence.49 This is hard to reconcile analysis of Brown and Lord Templeman’s judgment
with some other forms of body modification, albeit which stated that there is a difference between harm
perhaps not those in BM. It seems that the difference for incidental to an activity, and harm which is inflicted for
the court in R v Wilson50 lay in their reluctance to intrude the purpose of cruelty.61
into the marital home. The judges in BM distinguished As such, the state of the law appears to be rather ad
this case and Brown, finding that the harm done to the hoc in Victoria and in Australia. It is unclear how the
defendant’s clients were too severe to be able to be courts would determine a case such as BM’s if consent
consented to.51 was raised as an issue. However, as the body modifica-
As British case law, Brown has a persuasive influence tion industry is largely unregulated, it is likely that a
on Australian courts. The state of the law in Australia similar outcome would occur, as clients’ consent would
has been developed largely in the Victorian courts, not cure the largely unregulated, and often underground,
where cases have been brought concerning consent to industry.
strangulation, consent to suffocation and consent to
being infected with the HIV virus.52 Body modification Framework for registration
has not been considered by the Australian courts. How- The legislative framework in the UK requires tattoo
ever, a New South Wales man was arrested on artists and body piercers to register under the Local
1 May 2018 for female genital mutilation. He allegedly Government (Miscellaneous Provisions) Act 1982 (UK).62
used a hot brand to burn a woman’s labia majora at his Under this Act, the local council may determine who
business premises in Erina. No plea was entered and the may be licensed, where their premises may be located
matter was adjourned to 20 July 2018.53 Following this, and how much a licence may cost.63 The council may
the NSW Minister for Health, Brad Hazzard, has indi- also make by-laws about the cleanliness of the premises,
cated that tighter controls will be implemented. as well as introducing infection and hygiene control for
96 australian health law bulletin July 2018the premises, practitioner and instruments used. There is
a gap in the regulation that prevents body modification Footnotes
procedures being performed on these premises, as there 1. R v BM [2018] EWCA Crim 560.
is no relevant licensing regime. BM’s case was brought 2. Above, at [1].
because he was deemed to be performing the work of a 3. Above n 1, at [6].
surgeon without registration.64 4. Above n 1, at [1].
The regime in Australia is very similar. Local gov-
5. Above n 1, at [42].
ernment maintains licensing of tattoo artists and body
6. R v Brown [1994] 1 AC 212.
piercers, for example through the Public Health and
7. Above n 1, at [2].
Wellbeing Act 2008 (Vic). In Victoria, tattoo artists,
8. Above n 1, at [35].
beauticians and practitioners who carry on a business
9. Above n 1, at [40].
involving skin penetration (such as most body modifi-
10. R v Donovan [1934] 2 KB 498.
cation procedures) must register their business and are
guided by the Health Guidelines for Personal Care and 11. Above, at 499.
Body Art Industries65 (Health Guidelines).66 The Victo- 12. Above n 10, at 502.
rian Department of Health and Human Services has 13. Above n 10, at 507. The jury was directed that consent was
published the Health Guidelines — indicating compli- vital, and it was found that the prosecution failed to show an
ance with these guidelines will help businesses fulfil absence of consent; the conviction was therefore quashed.
their legal responsibility to provide a safe service, such 14. Above n 1, at [22].
that they do not contravene Australian Consumer Law 15. R v Miller [1954] 2 QB 282 at 292.
standards. However, there is no legal requirement that 16. R v Coney (1882) 8 QBD 534.
service providers do so. 17. Attorney General’s Reference (No 6 of 1980) [1981] EWCA
Further regulation is in place for health care providers Crim 1.
and day medical centres, where forms of cosmetic 18. Above.
surgery and body modification are carried out, such as 19. Above n 17.
the insertion of dermal fillers or non-surgical cosmetic 20. Above n 17.
modifications. Body modification is not covered by any 21. Above n 17.
of these registrations, as they typically relate to surgeries 22. Above n 16, at 539 per Stephen J.
that require anaesthesia and the registration of medical 23. Above n 16, at 536.
practitioners. As such, the position remains much the 24. Above n 16, at 543.
same as in the UK. 25. Above n 1, at [24].
The future of body modification 26. Above n 6, at 280.
procedures and practitioners 27. As indicated in above n 1, at [23], referring to Lord Lane CJ in
Body modification is a way of expressing individu- above n 17, at 718 and 719.
ality. While personal autonomy is valued in our society, 28. Above n 1, at [8].
the law has not yet caught up and prohibits people from 29. Above n 1, at [8].
consenting to these procedures. Parliamentary regulation 30. Above n 1, at [13] and [17]–[19].
of this industry would enable safer practice, bringing it 31. Above n 1, at [19].
in line with tattooing and body piercing. The case of BM 32. Above n 1, at [15].
demonstrates that practitioners do not want to harm their 33. Above n 1, at [14].
clients. The practitioner undertook courses and used 34. Above n 1, at [13].
sterilised instruments such that a tattoo artist might, 35. Above n 1, at [13].
however, there are no further measures he could take to 36. Above n 1, at [20].
prevent falling afoul of the legislation. It is only a matter 37. Above n 1, at [41].
of time until body modification regulation catches up 38. Above n 1, at [42].
with this growing industry. 39. Above n 1, at [41].
40. Above n 1, at [44].
Rebecca Olle 41. Above n 1, at [45].
Law Graduate 42. Above n 1, at [43].
Russell Kennedy Lawyers 43. Above n 16, at 539 per Stephen J.
ROlle@rk.com.au 44. Above n 1, at [43].
www.rk.com.au 45. Above n 1, at [3].
46. Above n 17.
australian health law bulletin July 2018 9747. See for example, Victorian Department of Health and Human 55. R v McIntosh, above n 52.
Services Health Guidelines for Personal Care and Body Art 56. R v McIntosh, above n 52, at [11]–[14].
Industries (2004) www2.health.vic.gov.au/public-health/infectious- 57. R v Stein, above 52.
diseases/personal-care-body-art-industries. 58. However, the Crimes Act 1958 (Vic), s 15 defines serious
48. R v Wilson (1996) 2 Cr App Rep 241. injury as an injury that endangers life or is substantial and
49. Above, at [49]. protracted. This definition was amended after these cases were
50. Above n 48. decided and therefore it is unclear how it could be applied to
51. Because the harm engaged in in those cases were below the these instances.
level of “really serious injury”: above n 1, at [44]. 59. Neal v R, above n 52.
52. R v McIntosh [1999] VSC 358; BC9906145; R v Stein (2007) 60. Neal v R, above n 52, at [72].
18 VR 376; 179 A Crim R 360; [2007] VSCA 300; BC200710872; 61. Above n 6, at 236.
and Neal v R (2011) 32 VR 454; 213 A Crim R 190; [2011] 62. Local Government (Miscellaneous Provisions) Act, ss 13–16.
VSCA 172; BC201104107. 63. Local Government (Miscellaneous Provisions) Act, s 15.
53. S Rigney “Body modifier appears in court over alleged genital 64. Above n 1, at [42].
mutilation in Newcastle” The Sydney Morning Herald 65. Registration under Div 3 of the Public Health and Wellbeing
15 May 2018 www.smh.com.au/national/nsw/body-modifier- Act, ss 68 and 69; above n 47.
appears-in-court-over-alleged-genital-mutilation-in-newcastle- 66. Skin penetration procedures include scarification, tongue split-
20180515-p4zfch.html. ting, branding and beading as well as tattooing and piercing.
54. R v Stein, above 52. See above n 47, Pt B Ch 2.
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