lesV Bloodletting and the Law

Originally published on SMOKE AND MIRRORS 2006
NOTE--The author of this article is a lawyer writing from the perspective of UK law. Anyone who is involved in "blood play" or "blood feeding / donoring" ought to be aware of the laws that apply to their area.

Bloodletting is used by many people for many different reasons. Vampyres use bloodletting to feed. Others use bloodletting as part of sex play. Still others use bloodletting as a form of release. How does the law view bloodletting for what may be described (inaccurately) as recreational purposes?

This article is based on the law of England and Wales as it is understood at the beginning of 2006. The laws of different jurisdictions may differ, but most of the English speaking world has substantially the same law, so the content of this article should not be too far off base wherever you live. This article is based on general principles and is not intended to be a substitute for proper legal advice.

There are generally two ways for bloodletting to occur: the donor can cut or puncture him- or her- self; or the recipient can cut or puncture the donor. Where the donor cuts or punctures him- or her- self there is not usually a problem. Generally speaking, one cannot commit a crime against one’s self (suicide is a crime against society, not a crime against the person). The problem arises where the recipient cuts or punctures the donor. How much, if any, cutting or puncturing is permissible under the law?

The issue of consent to the infliction of harm has been considered a number of times in the last decade or so in England. In each case the infliction of harm occurred in the pursuit of sexual gratification, but the principles are the same; and judges being (typically) the grey men in grey suits that they are will likely only be able to understand the issue of bloodletting in that context.

The general rule is that a person cannot consent to the infliction of harm to him- or her- self which amounts to serious harm. That, of course, begs the question, what is serious harm?

At common law, an assault is an act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence and a battery is an act by which a person intentionally or recklessly inflicts personal violence upon another. However, the term “assault” is now, in both ordinary legal usage and in statutes, regularly used to cover both assault and battery . The word ‘unlawful’ means simply that the accused had no lawful excuse, such as self-defence, for the infliction of the personal violence (the physical act).

In what is, perhaps, the most celebrated case , a group of homosexual men were convicted of assault occasioning actual bodily (ABH), assault occasioning grievous bodily harm (GBH) and/or wounding for their part in what was described as genital mutilation and genital torture as part of sado-masochistic sex. The acts were all committed with consent, but the level of “violence” used was remarkable. The genital torture and mutilation included inserting fishhooks into ones scrotum and hanging men by their testicles. The House of Lords, the highest court in England and Wales, was clear that they viewed sado-masochism as acts of violence and not as acts of sex. The 5 judges (Law Lords, as they are known) were not at all agreed on the matter, but the majority upheld the convictions and gave some advice on what may be viewed as acceptable and what is unacceptable. The House of Lords said held that a person could be convicted for committing sadomasochistic acts which inflict injuries, which were neither transient nor trifling, notwithstanding that the recipient of such injuries consented to the acts and not withstanding that no permanent injury was sustained. The level of violence that may be permissible was not agreed by the Law Lords. Not surprisingly, they each had their own views, but it would seem that what is known as “common assault” will be tolerated and perhaps even “assault occasioning actual bodily harm” so long as the harm is not serious. Anything more sever is not to be tolerated.

In what is probably the most popular case , a man was convicted for “branding” his initials into his wife’s buttocks, not only with her permission but at her request. The wife did not complain, her doctor did when he saw the branding (one of the dangers of mandatory reporting laws). The husband was charged and convicted of ABH. On appeal, the Court of Appeal for England and Wales said that consensual activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation or prosecution and pointed that there was no evidence of any significant harm having been done to the wife, in this particular case. The healing proceeded in the normal way, so much so that the doctor who gave evidence made no reference to any scar on the right buttock.

The most recent case of note involved a couple who enjoyed a very active and varied sex life . Again, it was the wife’s doctor who informed the police under the mandatory reporting laws in force at the time. The complaint related to two separate incidents, one where the wife wanted to use oxygen deprivation as a sexual stimulant and one where lighter fuel was used. In each case the wife consented but also suffered temporary damage. In the case of “gasping” she blacked out and her eyes were blurry for a week or more afterward, in the case of the lighter fluid, one of her breasts received severe burns that took some time to heal. In the end, the husband was convicted (and his sentence suspended for 2 years) on the basis that the degree of actual and potential harm and the degree of unpredictability as to injury was such as to make it a proper cause for the criminal law to intervene. The medical evidence was that there was a very considerable degree of danger to life and, on the second occasion, there was a degree of actual injury to the body which was not transient.

It seems unlikely that any challenge to such a prosecution on the basis that it is an invasion of privacy or is contrary to the right to freedom from interference from a government would be successful in a country that has such human rights legislation. The matter has been considered by the European Court of Human Rights and the decision, not surprisingly, was that once the conduct of the accused person has gone beyond the permitted limit, however that is defined, in inflicting injury upon or exposing to potential risk another, so that he or she prima facie, at least, has committed an offence of a sufficient degree of seriousness, the institution of a criminal investigation and, if appropriate, criminal proceedings cannot amount to a breach of the accused’s human rights.

What is the answer then? The answer seems to be that self-mutilation is acceptable (unless it gets to the point where the person would be considered in need of medical intervention) and that consensual mutilation (cutting and puncturing) is acceptable so long as the wounds are not beyond those wounds that are necessary for the purpose and may be regarded as not out of the ordinary (trifling and/or transitory).