The American man who held the Guinness World Record for the most permanent transformations to look like an animal was recently found dead in his Nevada home. The man, known by his Native American name Stalking Cat (SC), had since the age of 23, when he had his first tiger stripe tattooed onto his body, undergone a series of body modification procedures aimed at altering his physical appearance to resemble that of a female tiger. In addition to tattooed tiger stripes across his body and numerous piercings, body modification procedures that SC underwent included having his upper lip surgically split, his ears pointed and earlobes elongated, subdermal silicone implants (to change the shape of his face and to facilitate the wearing of whiskers), and flattening of the nose via septum relocation.
A BBC profile on SC from ten years ago states that SC “travels to Phoenix, Arizona to have his surgery carried out by body modification artist Steve Hayward. Cat cannot go under the surgeon’s knife because it is illegal in the United States for a medical professional to alter someone’s appearance beyond what society deems normal.”
What would happen if a person (who, we stipulate, has capacity to make medical treatment decisions under the Mental Capacity Act 2005) wanted to have a similar range of procedures carried out in this jurisdiction?
First, it is clear that it would not be lawful for a person who was not an appropriately qualified medical professional to carry out surgical procedures on another individual, irrespective of the consent of the latter. But even appropriately qualified medical professionals would not be able lawfully to carry out any procedures on consenting adults. A medical professional who amputated someone’s finger for the purposes of a ‘patient’s’ insurance fraud would, for example, not be likely to escape criminal liability (State v Bass (1961) 120 SE 2d 580). The general rule is that the consent of an individual with capacity does not furnish a defence to criminal liability with regard to conduct that causes actual bodily harm (ABH) or greater injury. Thus, even individuals with capacity cannot lawfully engage in activities such as consensual killing, prize fights, or, as Katrien Devolder observed in her recent blog post, sado-masochistic violence, This is because causing injury “for no good reason” has been deemed to be contrary to the public interest. The consent of the ‘victim’, therefore, only constitutes a defence to criminal liability in the course of ‘lawful activities’. These are activities the pursuit of which are deemed to be consistent with the public interest, and include things such as contact sports, adornment, and the provision of medical treatment (defined as ‘reasonable surgical interference’ or ‘proper medical treatment’.
So where does this leave people who want to undergo tiger body modification? Acquiring the necessary stripes, through extensive tattooing, including facial tattooing, would appear to be fine. Tattooing is a well established exception to the rule that consent does not provide a defence to the infliction of ABH or greater injury. What about cosmetic surgery procedures, such as hairline modification, subdermal implants, septum relocation, earlobe elongation and ear pointing, silicone injections into lips, cheeks, chin, etc.? Cosmetic surgery has been accepted as lawful. The grounds on which it is lawful, however, are somewhat unclear. The Law Commission has stated that “it may well be that this is a field in which English law unconsciously recognises that the criminal law has no acceptable place in controlling operations performed by qualified practitioners upon adults of sound mind with their consent”.
Again, this does not mean that there are no limits on the kinds of surgical procedures that medical professionals could lawfully carry out. Thus, although cosmetic surgery to the female genitalia is lawful, any such procedure that amounted to female genital mutilation under section 1 of the Female Genital Mutilation Act 2003 would be unlawful. Similarly, it would probably not be lawful to have (parts of) one’s healthy limbs amputated, for example, if one’s goal was to look like a dachshund rather than a tiger, although the legal status of healthy limb amputation could be described as somewhat uncertain. On the one hand, surgeons who might agree to amputate healthy limbs are “effectively barred from conducting such operations in the UK, because no hospital will permit the surgery to take place on their premises”. One the other hand, the UK has not seen any prosecutions for the amputation of healthy limbs. This is in spite of surgeon Robert Smith publicising his own participation in two healthy limb amputations at the Falkirk and District Royal Infirmary in 2000. It is also in spite of declarations made by a member of the Scottish Parliament in the aftermath of the Scottish amputations to the effect that such procedures were “obscene”, that it was “incredible that any reputable surgeon would amputate a perfectly healthy limb”, and that “the whole thing [was] repugnant and legislation need[ed] to be brought in now to outlaw this”.
Although procedures such as tattooing and piercing are lawful by virtue of their very own exception to the rule that valid consent does not furnish a defence to criminal liability with regard to conduct that causes ABH or greater injury, cosmetic surgery is lawful by virtue of its inclusion in the so-called ‘medical exception’, which takes the provision of medical treatment to consenting individuals with capacity outside the realm of the criminal law. However, the inclusion of procedures like cosmetic surgery/body modification, which do not have a straightforward therapeutic purpose, in the ‘medical exception’, makes the scope of this exception uncertain. Where does the law draw the line for what kinds of body modification procedures qualify for inclusion in the ‘medical exception’? Are subdermal implants like those SC had acceptable? If subdermal implants to make one’s face more tiger-like are fine, would elephant surgery (a trunk) be acceptable too? Perhaps a case like that of Stalking Cat is just what this jurisdiction needs.
Further reading:
1. Airedale NHS Trust v Bland [1993] AC 789
2. R v Brown [1994] AC 212
3. Law Commission (1995) Consent in the Criminal Law. Law Commission Consultation Paper No 139, HMSO
4. Tracey Elliott, Body dysmorphic disorder, radical surgery and the limits of consent, (2009) 17(2) Med Law Rev 149-182
5. Anne-Marie Bridy ‘Confounding Extremities: Surgery at the Medico-ethical Limits of Self-modification’, (2004) 32(1) J Law, Medicine & Ethics 148
What about people who are psychologically convinced that a limb does not belong to them? Is it unlawful for a doctor to separate their limb from them even after psychologists have signed off on it and the procedure would provide significant psychological ease? We are fine with acknowledging that in the case of a transgendered person that if their outside body does not match their inner-sexual-psychological configuration then, as a society, modification of their body is permissible, but that need for one’s outsides to match one’s so-called insides does not just stop with the transgendered. Frankly, it would be unconscionable of me to state that one type of psychological need outweighs another psychological need — how are we to even measure them? So, if consent is given, I cannot see my way to condemning one type of body modification while condoning another.
Hi Airin,
The condition you describe (BIID one presumes) is exactly what Mr Foster was referring to when he talked about the healthy limb amputations Robert Smith performed (in 1997). It was leaked to the public in 2000 that he performed these operations and on the back of a public outcry, and indeed inflammatory comments made by scottish parliamentarians and others, hospitals decided to ban the operation. I agree with you though. Ethically I feel it is a permissible procedure for those suffering from the condition. There is only a handful of literature on the condition (muller, bayne and levy, ryan, patrone etc.) and it isn’t very well publicised or discussed but it mostly favours amputation.
Sorry, I meant Ms Forsberg not Mr Foster!
I want to offer a couple comments.
First, Lisa F says that the clinician involved in body modification cannot point to consent as a defense against (possible) criminal prosecution if the modification ends in “:actual bodily harm (ABH) or greater injury.” I’m not sure what ‘greater’ than ‘actual’ bodily harm could mean. Harm greater than actual harm?
Second, Lisa F notes that “A medical professional who amputated someone’s finger for the purposes of a ‘patient’s’ insurance fraud would, for example, not be likely to escape criminal liability.” Well, some clinicians do amputate fingers not for fraud, but for purposes of phallic reconstruction. (See: http://www.ncbi.nlm.nih.gov/pubmed/12449578 ) Now, is the excision of a healthy finger arguably for a ‘medical reason,’ insofar as a man can live without a penis?
Once we open the door to the idea that psychological interests figure into legitimate medical interventions, the door opens fairly wide to body modifications that people want for their own reasons. If there’s a stronger argument to be raised against body modifications a la Stalking Cat, it seems to me that it is to be found in the idea of compromised consent rather than in protecting “what society deems normal.” If that’s the standard, after all, the treatments used to express gender in one way or another (which can involve the excision of perfectly functional and healthy tissue and organs) would never have gotten off the ground. Mostly, though, neither the law nor professional associations raise a peep against any more.
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