From body modification to BDSM, we have no right to police the choices of consenting adults
Earlier this year, Brendan McCarthy, known as Dr Evil, was sentenced to 40 months in jail for performing consensual body modifications.
This included the removal of a nipple and ear, and the splitting of a tongue.
The judges ruled that the customers’ written consent to McCarthy did not amount to a defence.
“Not my cup of tea, but what’s the harm?” is now the typical British response to a wide variety of activities that were seen as socially unacceptable in the past – from large visible tattoos to alternative sexual practices.
But while our laws broadly uphold this principle, there are some arbitrary exemptions.
In my paper “Free to Consent: The case for legalising body modification, BDSM, and transhumanism”, out this week from the Adam Smith Institute, I look at the law of consent related to physical harm. The paper makes the case that consent should be a valid defence to charges of actual or grievous bodily harm.
The question of consent for mutual activities applies to more than body modification. BDSM (an umbrella term covering bondage, dominance, sadism and masochism) has become increasingly popular in recent years, thanks in part to the publication of books such as Fifty Shades of Grey.
Many couples are now engaging in BDSM to spice up their love life. What they may not be aware of, as they reach for that whip or bite their partner, is that they’re probably breaking the law – and could be convicted, even if their partner consents.
The illegality of BDSM dates back to a judicial decision in the early nineties, when a group of men were convicted of actual and grievous bodily harm for engaging in sadomasochistic activities. Despite the consent of all involved, the highest court in the land found it unlawful (with some apparently homophobic undertones).
We might find BDSM and body modification odd. It might even cause us revulsion or offend our morality. In many ways, that is perfectly fine – we are all entitled to our opinions.
However, our opinions and morality should not dictate how other people choose to live their lives, and they should certainly not result in those people being convicted of a crime.
As much as we may dislike certain activities, it is immoral to use the state to prevent them and punish consenting adults.
Changing the law is also important for the future of humanity. It is possible that, in years to come, people will be able to combine their bodies with new technologies which improve cognition, health, and other physical abilities.
Known as “transhumanism”, not only will this help humans to live healthier and happier lives now and in the near future, but it could also be essential for the very survival of our species in the long run.
Carrying out body modification in a safe and regulated environment is preferable to it taking place in a grotty garage in some backstreet by someone who has every incentive to run away if things start to go wrong.
It’s the same with BDSM. People who sustain injuries or infections are more likely to seek the medical treatment they need if they know that their partner is not going to spend the next few years languishing in prison if the cause of the injuries is discovered.
The law as it currently stands needs reform. The activities between consenting adults should not be criminalised, regardless of how distasteful one may find them.
Reforming the law will ensure that individual autonomy is upheld, harm is reduced, and that humanity can seize the opportunities of future technology.
Main image credit: Getty