This virtual roundtable Liberation or liability? How consensual bodily harm is tolerated & autonomized was organized and moderated by Alexandra Grolimund and welcomed a dialogue between three distinguished panellists: Dr. Andrea Beckmann (critical criminologist and author of the book ‘The social construction of sexuality and Perversion’), Dr. Matt Lodder (tattoo historian/body modification expert and senior lecturer at University of Essex), and Dr. Jack Anderson (Professor and Director of Sports Law Studies at the University of Melbourne and author of ‘Legality of Boxing’).
The organization of the panel was prompted by Alexandra’s research concerned with the sociocultural and legal legacy of R v Brown, a 1994 English Supreme Court Case. Brown’s outcome was the seminal legal decision that remains precedent in the criminal law approach to consensual harm in England and Wales but extends also internationally as part of the English common law’s influence via the Commonwealth for example. The case found, and cemented, the legal approach that found consent between individuals not necessarily a defense to bodily harm. The case, which considered sadomasochistic sex acts involving a group of gay men, went to the European Court of Human Rights in 1997. The men’s actions, including harm done consensually to one another, were construed as outright violent – the SM community on the other hand, rallied around the men’s right to privacy and sexual liberty.
On appeal, the European Court of Human Rights found that public health took priority over the appellant’s right to privacy. Beyond delineating the legal case against SM sex, the judgement considered and seemingly clarified an array of actions constituting legal consensual harm, including surgery, circumcision, tattooing, ear-piercing, and violent sports including boxing. This list of ‘consent categories’ in no way exhausts the list of possibilities…the resulting legal lacuna on this area of criminal law leaving several areas of consensual harm, like SM sex and body modification, unclear in terms of their legality, and in turn perhaps their moral acceptability in society. Taken to its logical end, it’s no surprise that recent cases on extreme pornography and doctor-assisted suicide have referenced this area of law and debate as well. Given that a 2019 case involving a body modifier rested on this case as precedent almost 3o years on, to jail the modifier for consensual procedures done on his customers, there is timely need to reconsider this topic. The original judgement’s majority opinion supported the public policy and interest as a more appropriate space within which to have this debate, insisting that Parliament be supported in this by quote “the advice of doctors, psychiatrists, criminologists, sociologists and other experts”.
The panel led an interdisciplinary discussion on the legal and moral status of consensual bodily harm: society accepts and even welcomes harm in the context of tattooing/piercings, sports and medical intervention, but the legal status of certain activities such as BDSM and body modification is contested (within a domestic English common law context, but also internationally) . How does social utility apply to each of these cases and what are our limits? Is such harm a public threat or autonomous expression? With this confusing legal predicament in mind, the panellists and audience members considered the following questions:
- What is/should be the limit as far as consensual bodily harm is concerned and how does this limit relate to bodily autonomy and social utility? To what degree of harm can one legally/morally consent?
- What is the appropriate balance between private life and the protection of the public and their ‘health’ for example?
- Is there opportunity for consultation between disciplines, or an arena beyond a legal one, for discussion on this matter?