When Body Modification Goes Wrong, Who Is To Blame?
Warning: Contains graphic images.
Horns, scarification, tongue splitting, ear reshaping and eye tattooing... body modification is a growing trend in Australia raising interesting, and some cases, horrific legal problems.
In August 2018, a NSW body modifier was charged with manslaughter after a plastic snowflake he allegedly implanted under a woman’s skin allegedly gave her a fatal infection. Earlier in the year, the same man was charged over female genital mutilation for a separate procedure performed in 2016.
In November, a young Australian man died in the United States after his involvement in a modification procedure as part of a sadomasochistic relationship.
These recent cases have resulted in renewed calls for stricter regulation of body modification businesses in Australia to ensure the health and safety of customers.
'Subdermals', such as stars and snowflakes implanted under the skin, are becoming increasingly popular body modifications.
What Laws Currently Apply to Body Modification?
Tattooing and piercings are accepted forms of body art in Australia and are regulated by public health regulations and local council bylaws in all States and Territories.
However, existing definitions of body art do not include more ‘extreme’ services such as scarification, branding or tongue splitting. This, despite the fact that body modification has been a growing trend since the 1990s.
This places body modification businesses under partial but not targeted regulation, which is particularly worrisome given the health and safety risks of more invasive procedures.
Up until now, practitioners have been able to reassure themselves on the basis that clients freely and willingly consent to procedures. However, a long string of legal decisions (and a recent UK case) calls this rationale into question.
Tongue splitting and scarification are popular procedures.
Consent to Bodily Injury
For certain kinds of injuries, such as those sustained from a boxing match or during surgery, courts have long held that consent can act as a defence to a criminal charge of assault or manslaughter.
However, an infamous House of Lords case from the early 90s -- R v Brown -- has set a longstanding precedent (applicable in Australia) that in cases of serious, grievous bodily harm, consent will not suffice as a defence. The case itself involved consensual sadomasochistic activities such as genital torture, branding and bloodletting.
In justifying the decision, Lord Templeton of the House of Lords argued that:
"Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised."
In a recent UK case, R v BM, a body modification practitioner was charged with three counts of actual bodily harm for removing a customer’s ear, another customer’s nipple and splitting another’s tongue all without anaesthetic. All the customers consented to the procedures.
READ MORE: Man Arrested After 'Snowflake' Death
Relying on the rationale of R v Brown, the Court concluded that consent to extreme body modifications did not act as a defence to criminal charges. In summing up, Justice Nawaz stated:
"Medical procedures performed for no medical reason and with none of the protections provided to patients by medical practitioners…the personal autonomy of the appellant's customers did not justify removing body modification from the ambit of the law of assault."
Such recent legal developments indicate that body modification practitioners in Australia are at risk of criminal charges even if their customers clearly consent to the acts performed.
More extreme body modifications include eyeball tattoos and nipple removal.
The Future of Body Modification
In response to recent charges laid, the NSW Minister for Health Brad Hazzard called for a ban on the body modification industry. In justifying the crackdown, the Minister said:
"People who have these things done to themselves really have some pretty major issues going on in their head."
A more progressive approach is taken by UK academic Samantha Pegg, who strongly argues that body modification should be recognised as a legitimate form of body art. Writing in The Conversation last year that:
"If the practice of extreme body art is found unlawful it is likely it will be driven underground… We need to find a way of bringing the law up to date and effectively regulating these procedures."
Horn implants, and ear and nose removal are among the more extreme body modification procedures.
Given upcoming criminal hearings scheduled for this year, discussions over the appropriate regulation of body modification and the limits of consent are sure to continue.
While the practice remains fringe, the popularity of body mod procedures continues to grow and it’s clear legislation desperately needs to catch up -- or else customers will continue to be at risk of injury and artists at risk of prosecution.
What form regulation of the industry takes is going to reflect Australia’s wider values regarding consent to harm and behaviours outside the norm -- do we allow people the freedom to irreversibly shape their body in extreme ways? Or should we intervene to save them from themselves?
At the very least, recent cases of clear harm have made it clear that Australian lawmakers can no longer fail to act on this burgeoning industry.