In 1987, the Greater Manchester police obtained a videotape that they believed showed a number of men being tortured and murdered – the much-sought after snuff movie of urban legend. A series of arrests were made after a long investigation, at which point it became embarrassingly clear that not only were the ‘victims’ alive and well, but that they were actually consenting partners in gay BDSM sessions. Upon discovering this, the police and the Crown Prosecution Service could have quietly closed the case, but instead – driven by humiliation at being made to look foolish – they doubled down and charged all involved, including the alleged victims, with assault occasioning actual bodily harm. After court cases and appeals that went all the way to the House of Lords, sixteen men were found guilty. The guilty verdicts in what the legal profession call R vs Brown, and everyone else knows as The Spanner Case, were based on the somewhat dubious concept that a person cannot consent to being assaulted. Your body is not your own to do with as you please. “Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised” said Lord Templeman at the time. BDSM practitioners were demonised and put on notice that their consensual sexual activity remained beyond the pale.
It wasn’t just BDSMers who were left in a legal limbo by the case though. Like many a British law and precedent-setting legal judgement, the facts were decidedly vague – no one quite seemed to know what was or wasn’t going to be considered an assault any more, beyond the suggestion of “more than trifling injury”. Tattoists and those in the body modification world wondered, quite rightly, where the law left them, as they both inflict pain and permanently alter the body. Were they also going to be at risk of prosecution?
Well, it’s taken a while, but now we know. Tattooist and Body Modification artist Brendan McCarthy has been found guilty of three charges of causing grievous bodily harm on people who gave written consent for the acts to take place.
McCarthy, who ran Dr Evil’s Body Modification Emporium in Wolverhampton, had a pretty hardcore customer base. The three incidents that have landed him in trouble involved a tongue splitting, and the removal of an ear and a nipple – all without anaesthetic. These three mods took place between 2012 and 2015, and all three procedures seem to have been done effectively and without any complications. The customers were, by all accounts, happy with his work. Nick Pinch, who had the nipple removed, told the BBC “he wanted to know why I wanted this procedure, he wanted to make sure I knew what I was doing, he took complete duty of care. I’m really happy with what I’ve had done.”
None of which matters. Someone else, not involved, saw a photo of the ear removal and decided to complain about the work.
In the original trial, Judge Amjad Nawaz decided that, much like in the Spanner case, that consent did not matter, even though an earlier case – in which a man branded his wife’s buttocks with a hot knife and was acquitted of assault, despite the scar being permanent – was considered as setting precedent. The case was upheld by the Court of Appeal today, and McCarthy has now changed his plea to Guilty, his legal avenues being exhausted (he has, somewhat outrageously given the legal implications of the case, been refused leave to appeal to the Supreme Court).
The appeal court judges stated that body modification was not compatible to tattooing and piercing, which must come as news to a lot of people, not least everyone who has ever written about body art. They also said, somewhat reflecting the comments in the Spanner case, that “it was not in the public interest that a person could wound another for no good reason.”
But who is to say what a good reason is? Is boxing a good reason? Is cosmetic surgery or gender reassignment a good reason? These latter two in particular often involve procedures just as irreversible and considerably more drastic than anything carried out by McCarthy, and are done for much the same reason – to make a person who is unhappy with their body feel better about themselves.
But there is something icky and sexual about body modification and it’s hard not to imagine that a personal prudishness has come into play in this case. The appeal judges even suggested that McCarthy’s customers “might be in need of a mental health assessment”, though conceded that the facts were not sufficient in themselves to prove that. That’s nice of them.
Whether body modification needs licensing and training is another argument – McCarthy is not a surgeon, and there probably should be some rules around who is qualified to carry out these sort of procedures. That there aren’t is hardly his fault, though, and by all accounts, he carried out his work with skill and in a hygienic way. No one needed further medical treatment as a result.
The real question should be why the powers that be should have any say in what we do to our own bodies. Personal autonomy should be the most basic of human rights, and consenting adults should be able to make their own decisions, no matter how weird everyone else thinks it is. If McCarthy can be convicted for his work, why not someone who carries out extreme piercing, or someone who does a full-face tattoo for a customer? Where is the line of ‘harm’ to be drawn?
McCarthy is due to be sentenced on March 21st, and could face imprisonment. This should outrage anyone who has ever chosen to change the way they look.
UPDATE: McCarthy has been jailed for a staggering three years and four months, a longer sentence than many a person committing a violent assault on a stranger receives. Judge Amjad Nawaz stated that there was a “clear public interest” in imprisoning him, though quite what that is I don’t know. He also made it clear that the sentence was designed to serve as a deterrent to anyone else who might be foolish enough to believe that people should be free to do with their bodies what they wish.
DAVID FLINT
