Bodily Modifications and the Criminal Law
| Author | Daniel Bansal |
| DOI | 10.1177/0022018318816152 |
| Published date | 01 December 2018 |
| Date | 01 December 2018 |
| Subject Matter | Articles |
Article
Bodily Modifications
and the Criminal Law
Daniel Bansal
University of Leicester, UK
Abstract
This article critically evaluates the law on bodily modifications and consent in English criminal
law. The law on consent to (serious) bodily harm has been looked at on numerous occasions by
both academics and the judiciary. The current position is that conduct must fall within one of
four broad categories for consent to bodily harm to be effective—surgery, regulated sports,
chastisement of children and tattooing and ear-piercing. This article argues that extreme bodily
modifications, which involves the infliction of grievous bodily harm, are not permitted when
utilising the current category-based rationale favoured by the judiciary. This article posits that
extreme bodily modifications are of such social disutility that their criminalisation must be
correct. It is submitted that interference with personal autonomy is justified considering the
significant inherent risks with such extreme procedures.
Keywords
Criminal law, bodily modifications, bodily harm, consent, theory
Introduction
If D punches V as an act of bravado on V’s part, the consent to the physical contact means that depending
on the level of harm—no assault or battery takes place. If, however, D intends to exploit the opportunity
to punch V and intends, or is reckless, to causing serious bodily harm by punching him as hard as he can,
there is a point at which V’s consent becomes irrelevant to the lawfulness of D’s conduct. Following the
seminal House of Lords decision in R v Brown,
1
it is only possible to consent to (serious) bodily harm if
such conduct falls within one of the recognised exceptions and is of sufficient social utility.
2
Beyond
these exceptions, the presence of consent is irrelevant in determining whether the infliction of bodily
harm is lawful. Since this decision, there has been extensive debate by legal scholars as to both the
Corresponding author:
Daniel Bansal, University of Leicester, Leicester, LE1 7RH.
E-mail: daniel.bansal@le.ac.uk
1. [1993] UKHL 19; [1994] 1 AC 212.
2. The example above would not fit within the exceptions listed in R v Brown (n 1). The ‘social utility’ model is looked at in more
detail below.
The Journal of Criminal Law
2018, Vol. 82(6) 496–506
ªThe Author(s) 2018
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DOI: 10.1177/0022018318816152
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