Benjamin Bestgen: Consensual harm
This week Benjamin Bestgen looks at the legalities surrounding certain extracurricular activities. See last week’s here.
Every law student has probably heard of R v Brown  UKHL 19 during their studies. The case concerned a group of men who had occasionally gathered for consensual, but rather severe sado-masochistic sex in private accommodations, removed from public view. Activities included whippings, spankings, applying hot wax and sandpaper to their private areas, among much else. They also recorded some of their activities on film for personal gratification. On trial, each man confirmed that all activities were entirely consensual and nobody suffered lasting harm.
The court had to decide whether consent to physical injury can be a defence to accusations of assault which results in actual bodily harm on a person. By a 3-2 majority, the court decided that consent could not be a defence against criminal charges of occasioning severe physical harm on another person. Philosophically and legally, this ruling is controversial, as it allows courts to judge what adults of sound mind and legal capacity can and cannot do regarding their own bodies.
Volenti non fit iniuira
Roman jurist Ulpian asserted that “Nulla iniuria est, quae in volentem fiat.” No wrong is done to a person where he or she wants the thing to be done. Both English and Scots law acknowledge this principle in tort/delict where Jack cannot sue Jill for injuries suffered if Jack was fully aware of the risks involved and gave free and voluntary consent. Classic examples are sports like rugby or boxing, where participants know that they risk getting hit, pushed, tackled and suffer injury but freely and voluntarily waive any claim they might have against other participants.
Aesthetic limits of consent
Tattoos or piercings, once deemed morally sketchy and reserved for prisoners, prostitutes, “exotic” foreigners, sailors, artists or soldiers are nowadays widely accepted in Western societies and lawful, subject to restrictions for minors.
However, aesthetic body modifications like eyeball tattoos, split tongues, branding, scarification, trans- or subdermal implants or the removal of body parts like an earlobe or nipple remain illegal or of doubtful legality, as affirmed in R v BM  EWCH Crim 560, regardless of consent. The court took the view that such severe procedures are not extensions of commonly accepted categories of aesthetic adornments but extreme and surgical in nature, requiring trained and licensed medical staff to be carried out safely and generally not without a valid medical reason. The mental health of people desiring body modifications should also be professionally assessed to account for the risk of e.g. Body Dysmorphic Disorder. In addition, the court stated at para. 43: “The fact that a desire to have an ear or nipple removed or tongue split is incomprehensible to most […]”, including, it appears, the judges.
The idea that the state can tell you what you can and cannot do with your own body for the good of public morals, safety and welfare derives from a metaphorical “family model” of government, where the rulers exercise quasi-parental rights over their subjects. Sexual activities, aesthetic self-expression, artistic pursuits, drug consumption, ways of raising children, censorship of literature, movies or videogames are often subject of political and legal interference.
These regulation attempts are commonly justified as “upholding or safeguarding prevailing public opinion or sentiments” for the good of social order and peace.
Critics counter that “prevailing public opinion” is often used by governments to discriminate against minority interests or justify atrocities such as slavery or religious persecution. Individual autonomy is a high public good in itself and should be protected from political overreach. If a competent adult in possession of their intellectual and emotional faculties wishes to do something with their body or mind or have it done to them by another person and causes no harm to the rights and liberties of others, the law should not interfere.
Whenever courts meddle in what are ultimately aesthetic questions, an intellectual muddle is unavoidable. Lawyers Maeve Keenan and Sandra Paul note the confusion of courts when trying to differentiate clearly between legally acceptable and unacceptable bodily harm. In R v Wilson  2 Cr App Rep 241 a husband who consensually branded his wife’s buttocks with a hot knife as part of sexual activity was acquitted, as the branding was deemed a private matrimonial matter between husband and wife. It is doubtful that the husband adhered to proper medical standards of hygiene or technique when carrying out the branding or that the wife got a mental health assessment first.
It is also unclear why the matrimonial status should matter at all on a decision about criminal harm, particularly as the defence of “s/he wanted it” is common in cases about domestic violence, sexual abuse and “rough sex” defences. All this leaves the law around consensual harm and bodily autonomy intellectually and legally unsatisfying.
Body modifications are also part of increasing research into human-computer interfaces and robotics studies into creating cyborgs or aiding the human body through implanted machinery. Academic Kevin Warwick experimented with the implantation of RFID chips into his body and linking a neural interface to his own nervous system.
Artist Neil Harbisson has an antenna implanted into his skull, which extends colour perception and can receive signals through the internet. Harbisson and fellow artist Moon Ribas also have Bluetooth teeth implanted, allowing them to communicate in morse code through vibrations in their mouths.
The desire of persons to experiment with their own bodies, decorate and modify them is ancient. So is the wish to do risky and maybe idiotic things like playing rugby, wingsuit flying, consuming drugs or having unprotected sex with strangers of unknown health status.
Instead of focussing on what “most people” might find “incomprehensible”, courts and politicians may apply statistical reasoning to assess harm to the public: while having your tongue split or foreskin nailed to a board is arguably extreme, there are very few people engaging in such activities. Compare that to the millions who every day drink alcohol excessively, smoke, eat over-sugared foods, get concussions from contact-sport or have their health and livelihoods endangered by political incompetence. The harm caused by the latter is certainly not consensual and affects a vast majority of us.
The author thanks Mr Warren Simmons for inspiration and discussion of this article.
Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.