A new paper by Ben Ramanauskas, an independent researcher, makes the case for reforming the law to allow people to consent to activities such as body modification, BDSM, and transhumanism:
Under English law, consent is not a defence to a charge of actual bodily harm (ABH) or grievous bodily harm (GBH), except for certain socially sanctioned activities.
Judicial findings that body modification (i.e. the Dr Evil case) and types of BDSM (i.e. R v. Brown) are unlawful raise philosophical and legal questions about consensual activities in which neither party is aggrieved.
The law is applied inconsistently. People can consent to some potentially harmful activities, such as: ear piercings, contact sports and religious flagellation, but cannot consent to body modification or pleasurable sexual activities.
The type of activities in which consent is a valid defence has been arbitrarily determined by the judiciary, reflecting their biases and prejudices, rather than an objective determination of consent and harm.
Although undoubtedly well intentioned, and designed to protect individuals or society from harm, past verdicts that prevent people from consenting to certain activities represent a serious infringement on personal liberty. Individuals should be free to consent to sadomasochistic encounters and body modification.
The people who are most likely to suffer from laws that do not allow individuals to consent are sexual minorities and members of subcultures - whose activities fall outside of cultural norms and therefore attract an instinctive disgust reaction.
The development of transhumanism - technology to evolve beyond our current physical and mental limitations - could also be limited by existing laws that prevent body modification.
If the Government wishes to enable greater personal freedom, protect minority expressions, and enable emerging technologies, the Offences Against the Person Act should be reformed so that consent becomes a valid defence to charges of ABH and GBH. The onus would be on the defendant to prove that the alleged victim had consented to the acts.
Practitioners of body modification should be allowed to apply for a licence from their local authority in the same way as tattooists and body piercers.
These steps would ensure that vulnerable people are still protected and that consent cannot be used inappropriately as a defence, while also upholding the rights of individuals.