Consent held back by pride and prejudice

A new paper from the neoliberal think tank the Adam Smith Institute says UK Government should update British laws on consent in body modification to become more liberal and permissive.

  • British laws on grievous and actual bodily harm are outdated with consent not a valid defence.

  • Judicial rulings that body modification and sexual practices (such as BDSM) are unlawful raise philosophical and legal questions about consensual activities in which neither party is aggrieved. 

  • The law is applied inconsistently with personal prejudice and public opinion impacting on interpretation of the law to the detriment of minority groups.

  • 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.

  • Government should enable greater personal freedom, protect minority expressions, and enable emerging technologies, by reforming the Offences Against the Person Act so consent becomes a valid defence to charges of ABH and GBH. 

Britain’s consent laws are utterly outdated and harmful to minority groups and individuals, argues a new paper by free market think tank the Adam Smith Institute. 

Although undoubtedly well intentioned, and designed to protect individuals or society from harm, the law surrounding consent  Offences Against the Person Act and actual or grievous bodily harm is too vague and poorly applied allowing personal prejudice of judges and public opinion to impact on the interpretation of the law. 

The law in question, the Offences Against the Person Act stems from 1861 and the think tank says attitudes have changed since its inception. It has resulted in the conviction of some of the country’s most violent offenders, but it has also resulted in situations in which people have seen their rights curtailed by the state, unfair incarceration, and the stigma and loss of opportunity that comes from a criminal conviction.

The report says that it's high time the law was reformed so that consent becomes a valid defence to charges of ABH and GBH on a broad range of activities not currently allowed for under the law. 

While certain levels of consent have become included, such as surgery and tattoos, the lack of a permissive approach discriminates against minority groups who haven't been able to lobby for opt outs for their rituals or personal tastes. 

Under the plans put forward by the Adam Smith Institute, the onus in future would be on the defendant to prove that the alleged victim had consented to the acts. This way the government could enable greater personal freedom, protect minority expressions, and enable emerging technologies.

Sexual, cultural, and ethnic minorities are most likely to suffer from the current laws that do not allow individuals to consent. At present minority groups sit in a grey area waiting for a judge to determine if their ritual or activities meets their judgement as being in the public interest.  

In 2018 a tattooist called Brendan McCarthy (self-styled ‘Dr Evil’) was convicted of GBH after performing a number of procedures on willing and paying customers including: removal of an ear, removal of a nipple, and splitting another’s tongue so it forked. While extreme, in each case the customers gave consent and over 13,000 people signed a petition in favour of his case.

The think tank argues that this case and others show that courts have allowed personal feelings of disgust (and media around specific cases) to shadow the interpretation of the law. Minority groups receive this most often with a disgust reaction triggered when people bear witness to something which clearly deviates from the norm.

This has implications for the future too. Transhumanism promises to transcend the human experience with the promise of helping eliminate disease, tackle the effects of ageing, live longer, healthier, and happier lives the think tank argues it’s important to reform the law now so Britons that want to adopt and implant technology are free to do so.

With the law already out of date, and the world changing apace, it’s time to look again at consent.

Ben Ramanauskas, author of the report, said:

“It is a well established principle that a person should not face prosecution for partaking in consensual acts. However, the law currently criminalises people for activities taking place in private and involving consenting adults. The law needs to change. A more liberal approach would uphold individual liberty, reduce harm, and help to ensure that as humanity engages with futuristic technology Britons can benefit.”

Matthew Lesh, Head of Research at the Adam Smith Institute, says: 

“People should be free to consent to activities done to their body, even activities that make most people squirm. It is outrageous that you 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. We should apply the law consistently, not in a way that hurts minorities and subcultures. Updating the bodily harm laws, to include a consent defence, is also necessary for emerging transhumanism technologies, that will allow us to evolve beyond our current physical and mental limitations.”

Notes to editors:  

For further comments or to arrange an interview, contact Matt Kilcoyne, Head of Communications, matt@adamsmith.org | 07904 099599.

The Adam Smith Institute is a free market, neoliberal think tank based in London. It advocates classically liberal public policies to create a richer, freer world.