Tongue Splitting, Nipple Excision, And Ear Removal: Why Prosecute The Operator But Not The Customer?

By Charles Foster

Image: ‘Split tongue: procedure, safety, result’: Tattoo World: Standard YouTube licence.

The appellant in R v BM was a tattooist and body piercer who also engaged in ‘body modification’. He was charged with three offences of wounding with intent to do grievous bodily harm. These entailed: (a) Removal of an ear; (b) Removal of a nipple; and (c) division of a tongue so that it looked reptilian. In each case the customer had consented. There was, said the appellant, no offence because of this consent.

Where an adult decides to do something that is not prohibited by the law, the law will generally not interfere.

In Schloendorff v Society of New York Hospital (1914) 105 NE 92 Cardozo J said:

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”[1]

This principle has been fairly consistently recognised in the English law.[2] Thus, for instance, In In re T (Adult: Refusal of Treatment, Butler-Sloss LJ cited with approval this section of the judgment of Robins JA in Malette v Shulman[3]:

‘The right to determine what shall be done with one’s own body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self-determination and individual autonomy are based. Free individual choice in matters affecting this right should, in my opinion, be accorded very high priority.’

The priority, indeed, is near absolute. Thus in Re MB (Medical Treatment) Butler-Sloss LJ said:

“A mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death.”[4]

This was a summary of part of Lord Templemans’s speech in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital where he said:

” … the doctor is not entitled to make the final decision with regard to treatment which may have disadvantages or dangers. Where the patient’s health and future are at stake, the patient must make the final decision. The patient is free to decide whether or not to submit to treatment recommended by the doctor and therefore the doctor impliedly contracts to provide information which is adequate to enable the patient to reach a balanced judgment, subject always to the doctor’s own obligation to say and do nothing which the doctor is satisfied will be harmful to the patient … If the doctor making a balanced judgment advises the patient to submit to the operation, the patient is entitled to reject that advice for reasons which are rational, or irrational, or for no reason. The duty of the doctor in these circumstances, subject to his overriding duty to have regard to the best interests of the patient, is to provide the patient with information which will enable the patient to make a balanced judgment if the patient chooses to make a balanced judgment.”[5]

The appellant in BM, however, had to acknowledge that this was not a complete summary of the law. He had to deal with R v Brown[6]. In Brown a group of homosexual sado-masochists consensually inflicted injury on one another. They were charged with and convicted of (variously) assault occasioning actual bodily harm[7] and unlawful wounding[8]. They contended that since consent was a defence to these charges, they had been wrongly convicted. Not so, held a majority of the House of Lords[9]: there are some things to which one cannot validly consent. The House reviewed a large number of authorities including, inter alia, authorities dealing with boxing, other contact sports, and duelling.

Lord Templeman (with whom Lords Jauncey and Lowry agreed) concluded that :

‘the authorities dealing with the intentional infliction of bodily harm do not establish that consent is a defence to a charge under the 1861 Act. They establish that the courts have accepted that consent is a defence to the infliction of bodily harm in the course of some lawful activities. The question is whether the defence should be extended to the infliction of bodily harm in the course of sadomasochistic encounters.’

 This, he said could ‘only be decided by consideration of policy and public interest.’ The majority of the House decided that these considerations meant that consent should not be a defence.

Brown, said the appellant in BM, did not apply to his case. The procedures ‘should be viewed as akin to body adornment, which is widely accepted in British culture and other cultures. What was done …should be seen as a natural extension of tattooing and piercing, the last of which involves wounding by breaking the skin, but to which consent has long been accepted to negative in any criminal activity….[T]he procedures he conducted, albeit that they caused really serious bodily harm, should be immunised from the criminal law of assault, just as surgical procedures performed by medical practitioners and those who take part in properly organised boxing matches attract protection. The bite of the criminal law should be restricted to regulatory offences, if such are committed.’[10]

The Court of Appeal was not impressed:

‘….[T]here is, to our minds, no proper analogy between body modification, which involves the removal of parts of the body or mutilation as seen in tongue splitting, and tattooing, piercing or other body adornment. What the defendant undertook for reward in this case was a series of medical procedures performed for no medical reason. When Lord Lane referred to “reasonable surgical interference” in the Attorney General’s Reference case …it carried with the implication that elective surgery would only be reasonable if carried out by someone qualified to perform it. The professional and regulatory superstructure which governs how doctors and other medical professionals practice is there to protect the public. The protections provided to patients, some of which are referred to in the medical evidence before the judge, were not available to the appellant’s customers or more widely to the customers of those who set themselves up as body modifiers. It is immaterial that this appellant took some trouble to ensure a sterile environment when he operated, or that his work was in some respects tidy and clean. Consent as a defence could not turn on the quality of the work then performed.

 The protection of the public in this context extends beyond the risks of infection, bungled or poor surgery or an inability to deal with immediate complications. Those seeking body modification of the sort we are concerned with in this appeal invited the appellant to perform irreversible surgery without anaesthetic with profound long-term consequences. The fact that a desire to have an ear or nipple removed or tongue split is incomprehensible to most, may not be sufficient in itself to raise the question whether those who seek to do so might be in need of a mental health assessment. Yet the first response in almost every other context to those who seek to harm themselves would be to suggest medical assistance. That is not to say that all who seek body modification are suffering from any identifiable mental illness but it is difficult to avoid the conclusion that some will be, and that within the cohort will be many who are vulnerable. There are good reasons why reputable medical practitioners will not remove parts of the body simply when asked by a patient. One only has to reflect on the care, degree of inquiry and support given to a patient before gender reassignment surgery can be performed to appreciate the extensive nature of the protections provided in the medical context.

 The personal autonomy of his customers does not provide the appellant with a justification for removing body modification from the ambit of the law of assault. It is true that Mr Lott could have cut his own left ear off and in doing so would have committed no criminal offence. So too the other customers. But the personal autonomy of one individual does not extend to involving another in what would otherwise be a crime. We note that the European Court of Human Rights rejected the arguments advanced under article 8 of the Convention by the appellants in the Brown case, (1997) 24 EHRR 39, and remind ourselves that the level of harm engaged in that case was below really serious injury.

 In short, we can see no good reason why body modification should be placed in a special category of exemption from the general rule that the consent of an individual to injury provides no defence to the person who inflicts that injury if the violence causes actual bodily harm or more serious injury.’[11]

The judgment is BM is interesting for several reasons.

It is a salutary reminder that there are limits to the law’s protection of personal autonomy. Factors other than autonomy are in play in the criminal law. I have argued elsewhere that the primary factor (and the foundational factor in the criminal law – in which all other factors, including autonomy, are rooted) is human dignity.[12] It would be possible to argue that the prohibitions in Brown and BM were really designed to protect autonomy by (e.g.) criminalizing activities into which people may be coerced, or which caused injuries which truncated the ability to lead an autonomous life. But that would be a strained argument. The public policy grounds in both Brown and BM are really appeals to human dignity – and hence to a view that properly thriving humans do not engage in the prohibited activities.

This brings us to a second interesting aspect of BM. The appellant’s customers would have committed no criminal offence had they inflicted the injuries on themselves. Yet human dignity would have been identically affronted. If I am right to locate the ratio of Brown and BM in human dignity, is it not inconsistent for the law to criminalise X for injuring Y, while not criminalizing Y for injuring herself?

In the following discussion I refer to the distinction between injuries inflicted by oneself and injuries inflicted by others as ‘the distinction’.

On the facts of many individual cases the distinction may be justified. There may (for instance) be public health concerns if X injures Y which would not pertain if Y injured herself. There may be concerns about mental capacity or the validity of consent which could not be sufficiently addressed without an outright ban on the practice. It would surely be wrong to go back to the bad old days where suicide was a criminal offence, and an unsuccessful suicide could result in a criminal prosecution. That would be wrong for many reasons (including the high probability of a mental health background to a suicide attempt), but to believe that this is wrong is not at all inconsistent with a belief that assisting suicide should continue to be criminal. Some of these issues were canvassed in BM and Brown, but were not said there to be the basis of the distinction.

The distinction has been inadequately addressed by the courts. It is disappointing that the issue was glossed over in BM.

A suggestion: One might say that X causing injury to Y is doubly culpable because in doing so X outrages not only Y’s dignity but also his own (X’s) dignity. Mountfield and Singh have shrewdly argued that dignity is ‘Janus-faced’.[13] That is not a reason identified in either Brown or BM as a justification for the distinction, but it is a compelling reason, and the only one that could apply to all categories of Brown and BM type cases, regardless of the particular facts.

References

[1] At 93

[2] It was comprehensively reviewed by Munby J in Burke*

[3] (1990) 67 DLR (4th) 321,336

[4] [1997] 2 FLR 426, at 432

[5] [1985] AC 871, at 904

[6] [1994] 1 AC 212; see too Laskey, Jaggard and Brown v United Kingdom*

[7] Offences Against the Person Act 1861 s. 47

[8] Offences Against the Person Act 1861 s. 20

[9] Lords Mustill and Slynn dissenting.

[10] [34] and [35]

[11] [42] –[45]

[12] Human dignity in bioethics and law (2012): Hart

[13] Cited Hale, Baroness. 2009. Dignity. Journal of Social Welfare and Family Law, 31, 101.

 

 

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