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FREE to CONSENT PAPER BRIEFING the Case for Legalising Body Modification, BDSM, and Transhumanism

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FREE to CONSENT PAPER BRIEFING the Case for Legalising Body Modification, BDSM, and Transhumanism FREE TO CONSENT BRIEFING PAPER The case for legalising body modification, BDSM, and transhumanism By Ben Ramanauskas EXECUTIVE SUMMARY • Under English law, consent is not a defence to a charge of actual bodily harm (ABH) or grievous bodily harm (GBH), except for certain socially sanctioned activities. • Judicial findings that body modification (i.e. the Dr Evil case) and types of BDSM (i.e. R v. Brown) are unlawful raise philosophical and legal questions about consensual activities in which neither party is aggrieved. • The law is applied inconsistently. People can consent to some potentially harm- ful activities, such as: ear piercings, contact sports and religious flagellation, but cannot consent to body modification or pleasurable sexual activities. • The type of activities in which consent is a valid defence has been arbitrarily determined by the judiciary, reflecting their biases and prejudices, rather than an objective determination of consent and harm. • Although undoubtedly well intentioned, and designed to protect individuals or society from harm, past verdicts that prevent people from consenting to cer- tain activities represent a serious infringement on personal liberty. Individuals should be free to consent to sado-masochistic encounters and body modifica- tion. • The people who are most likely to suffer from laws that do not allow individuals to consent are sexual minorities and members of subcultures - whose activities fall outside of cultural norms and therefore attract an instinctive disgust reac- tion. • The development of transhumanism - technology to evolve beyond our current physical and mental limitations - could also be limited by existing laws that pre- vent body modification. • If the Government wishes to enable greater personal freedom, protect minority expressions, and enable emerging technologies, the Offences Against the Per- son Act should be reformed so that consent becomes a valid defence to charges of ABH and GBH. The onus would be on the defendant to prove that the al- leged victim had consented to the acts. • Practitioners of body modification should be allowed to apply for a licence from their local authority in the same way as tattooists and body piercers. • These steps would ensure that vulnerable people are still protected and that adam smith institute – the free-market consent cannot be used inappropriately as a defence, while also upholding the thinktank 23 Great Smith Street, rights of individuals. London, SW1P 3BL +44 (0)20 7222 4995 www.adamsmith.org ABOUT THE AUTHORS 2 Ben Ramanauskas is an independent researcher. Ben has worked for a variety of organisations including think tanks and in academia. He has studied law, econom- ics, and philosophy. Ben would like to thank Matthew Lesh and Matt Kilcoyne for their very helpful feedback and encouragement. He would also like to thank Daniel Pryor for his work on the paper. INTRODUCTION 3 Autonomy over one’s own body and the right to act as you please, so long as your actions do not cause harm to another person, are two fundamental principles of liberalism. As JS Mill put it in the famous Harm Principle: “The only purpose for which power can be rightfully exercised over any member of a civi- lized community, against his will, is to prevent harm to others. His own good, either physi- cal or moral, is not a sufficient warrant.”1 Although people have not always been able to enjoy the universal application of this principle, they are now, in Western democracies at least, applied to people regardless of their race, religion, gender, or sexuality.2 What happens, though, when a conflict between these two principles becomes ap- parent? This paper considers how the liberal principles of individual liberty and not causing harm to others interact with law relating to the infliction of violence. The paper will explore the limits of these principles. It will consider the law relat- ing to actual bodily harm, grievous bodily harm, and the role of consent. It will examine how the law in this area has developed and the impact that this has had on the concept of individual freedom and on minority groups. Finally, this paper examines the case for reforming the current legislation and sets out policy propos- als to improve the system. WHAT IS THE CURRENT LEGAL SITUATION? The law relating to actual bodily harm and grievous bodily harm is set out in the Offences Against the Person Act 1861. The statute consolidated a large number of offences, from crimes impeding a person escaping from a shipwreck to preventing a clergyman from executing his duties. As colourful as some of the offences listed in the Act are, the sections relevant to actual bodily harm (ABH) and grievous bodily harm (GBH) are 18, 20, and 47. Section 18 of the Offences Against the Person Act 1861 provides that:3 Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent, to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life. Section 20 of the Act states: 1 Mill,.J.S, On Liberty, (London: Penguin, 2010). 2 United Nations, ‘What are Human Rights?’, 2019. 3 HM Government, Offences Against the Person Act 1861. Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm 4 upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude. Section 47 reads: Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable to be kept in penal servitude. The case law offers two helpful definitions of ABH. Justice Lynsky stated in 1954 that: ‘Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim’.4 Lord Justice Hobhouse, in a 1994 case, stated that: “The word “actual” indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant”.5 The law has developed a set of circumstances in which the consent of the victim can provide a defence where the injuries involved ABH or GBH. These include:6 • Sporting activities; • Dangerous exhibitions and displays of bravado; • Rough and undisciplined horseplay; • Surgery; • Tattooing and body piercing; • Religious flagellation; and • Male ritual circumcision. It should also be noted that the Crown Prosecution Service (CPS) has, in recent years, clarified that when a person will be prosecuted for the transmission of HIV. A person is not guilty of ‘reckless HIV transmission’ in certain situations, such as if they had previously made their partner aware of their infection, or if a condom was used.7 An in depth analysis of the law relating to HIV transmission goes beyond the scope of this paper. However, it does serve as an example of how the law on assault has developed in recent years to allow for consent in certain situations. Moreover, it highlights the fact that sometimes a law can be applied inconsistently and in a man- ner which makes vulnerable people and members of minority groups dispropor- tionately likely to be prosecuted. For example, as Weait points out: ‘The first transmission cases in the UK were brought against, respectively, a convicted drug user, three black African male migrants, a Portugese immigrant heroin addict, a white man who infected a woman in her eighties, a gay man and two heterosexual women, 4 R v. Miller [1954] 2 All ER 529. 5 R v. Chan-Fook [1994] 2 All ER. 6 R v. Brown [1994] 1 AC 212. 7 Crown Prosecution Service, Intentional or Reckless Sexual Transmission of Infection, https://www.cps. gov.uk/legal-guidance/intentional-or-reckless-sexual-transmission-infection. one of whom had a history of sexual relationships with Afro-Caribbean men’.8 5 HIV transmission is criminalised and often results in headlines, whereas the trans- mission of other diseases is not criminalised or receives far less attention. This dy- namic suggests that the moral panic surrounding the HIV/AIDS crisis of the 1980s and 1990s and may reflect ongoing institutional prejudice against people with HIV.9 This issue of criminalisation based on the background, behaviour, or identity of defendants will become relevant later in this paper. As an aside, it is important to point out that patients with HIV who receive effec- tive treatment can expect to enjoy comparable lifespans to those who do not carry HIV.10 Furthermore, recent studies have shown that those receiving effective treat- ments cannot pass on the virus.11 WHAT HAS BEEN THE IMPACT OF THE LAW? The Offences Against the Person Act has served an incredibly important role over the past 158 years. It has resulted in the conviction of some of the country’s most violent offenders. This has allowed the victims of crime to receive justice and pro- tected the public from harm. However, it has also resulted in situations in which people have seen their rights curtailed by the state and have often been unfairly incarcerated and experienced the associated stigma and loss of opportunity that comes from a criminal convic- tion. In practice, it appears that the court have allowed personal feelings of disgust - a strong moral instinct - to shadow the interpretation of the law, in such a way that undermines personal choice and has a disproportionate impact on minorities. The following two case studies illustrate how the law relating to ABH and GBH can adversely impacts the rights of individuals.
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