In December 2015 Brendan McCarthy – also known as Dr Evil – was arrested.
After a preliminary ruling in the Court of Appeal, on the 12 February 2019, Mr. McCarthy admitted three counts of wounding with intent to cause grievous bodily harm – even though his victims (or “customers” if you wish) had consented to the procedures.
You can read the Court of Appeal decision here:
The charges put to Mr. McCarthy were under Sections 18 of the Offences against the Person Act of 1861 which reads:-
…………..wounding with intent to do grievous bodily harm.
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.
The charges related to:
- a Mr Lott who had his left ear removed on the 23 July 2015;
- an unknown female had her tongue split with a scalpel on the 23 July 2012;
- another victim who had their nipples cut out.
All of them signed a consent agreeing to Mr. McCarthy performing the procedure.
But crucially, the Act does not mention consent.
The leading case in this area is R v Brown 1994 in the House of Lords (now called the Supreme Court).
In that case a group of sado-masochistic individuals appealed from their conviction under the act following prosecution for committing acts of violence against each other, including genital torture. The passive partner (or victim) in each case consented to the acts being committed and suffered no permanent injury.
Here’s how Lord Templeman responded to the argument that every person has a right to deal with their body as they choose:
“I do not consider that this slogan provides a sufficient guide to the policy decision which must now be made. It is an offence for a person to abuse his own body and mind by taking drugs. Where the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally.”
He also noted:
The victims were youths, some of whom were introduced to sado-masochism before they attained the age of 21. The evidence disclosed that drink and drugs were important to obtain consent and increased enthusiasm.
Lord Jauncey added:
It was accepted by all the Appellants that a line had to be drawn somewhere between those injuries to which a person could consent to infliction upon himself and those which were so serious that consent was immaterial.
Lord Lowry:- …
Everyone agrees that consent remains a complete defence to a charge of common assault and nearly everyone agrees that consent of the victim is not a defence to a charge of inflicting really serious personal injury (or “grievous bodily harm”).
In the present case, the Court followed R v Brown and observed:
What the Defendant undertook for reward in this case was a series of medical procedures performed for no medical reason.
The fact that the desire to have an ear or nipple removed or tongue split is incomprehensible to most, may not be sufficient in itself to raise the question whether those who seek to do so might be in need of a mental health assessment. Yet the first response in almost every other context to those who seek to harm themselves would be to suggest medical assistance. That is not to say that all who seek body modification are suffering from any identifiable mental illness, but it is difficult to avoid the conclusion that some will be, and that within the cohort will be many who are vulnerable.
In short, we can see no good reason why body modification should be placed in a special category of exemption from the general rule that the consent of an individual to injury provides no defence to the person who inflicts that injury if the violence causes actual bodily harm or more serious injury.
To my mind where to draw the line is a very difficult question.
However, most people of goodwill would think that seriously invasive medical procedures should be regulated to screen out the mentally ill and so that they are only carried out by trained medical practitioners.
What do you think?