Dr John Rumbold, Lecturer, NLS https://www.ntu.ac.uk/staff-profiles/law/john-rumbold
The ancient common law offence of maiming, and particularly self-maiming, is considered obsolete in England, but it is still on the statute books here and elsewhere. This blog will explore why it is still relevant in some jurisdictions where there are large scale mobilisations of reservists, with reference to the Russia-Ukraine war.
Maiming, also known as mayhem, was the common law offence of injuring someone to such a degree as to impair their ability to defend themselves. This initially just created an exemption from trial by combat, on the assumption that it would be unfair to expect someone with a disability to fight. Later, maiming became an offence in its own right. Injuries to the limbs will clearly affect fighting ability but maiming also including missing front teeth and castration. The rationale here was that biting was an acceptable mode of combat and testicles were considered vital to manly aggression. Injuries that only affected the appearance were not included.
Later on, the common law offence was expanded by various statutes including the Coventry Act to specifically include disfiguring injuries such as “cutting out or disabling the tongue, severing the ear, and slitting the nose or lip". Milhizer, a US military lawyer and instructor, noted that in the early common law maiming had to be done “maliciously”, with the liability for maiming oneself a more recent addition. Wright’s Case (1604) involved a man who cut off his friend’s hand with his consent to render him a more effective beggar. Both were convicted of maiming.
Milhizer also states that the common law offence of maiming revolved around a conception of this being an offence against the state. The primary purpose of the law was protection of the Crown’s interests and not the protection of the individual. Maiming encompassed injuries to the limbs or eyes or any part that affected the ability of the victim to defend the realm – the Crown wanted a supply of fit and able soldiers. The jurist Stephen in 1878 held that in common law:
A maim is bodily harm whereby a man is deprived of the use of any member of his body, or of any sense which he can use in fighting, or by the loss of which he is generally and permanently weakened; but bodily injury is not a maim merely because it is a disfigurement.
Maiming oneself is still an offence in certain circumstances in certain parts of the World. Per the 2022 Alabama Criminal Code Sections 13A-14-1: Maiming oneself to escape a legal duty or obtain alms is criminalised. Oklahoma has a similar measure (bar the clause on alms and charitable relief) in Section 752 of Title 21, Chapter 26 (Maiming): Maiming oneself. These statutory offences apply specifically to self-inflicted injuries to avoid duties or to become eligible for assistance. They do not prohibit self-harm in other circumstances.
The specific statutory offences introduced in the Offences Against The Person Act 1861 have superseded maiming, although the common law offence of maiming was not explicitly repealed (and as the case of Owen illustrates, the institution of new statutory offences does not result in the implicit repeal of common law offences necessarily). However, Lord Mustill states in Brown that the offence of maiming is obsolete, a conclusion reiterated by the Law Commission. It was also stated in the more recent case of BM that the individual could have cut off his own ear and he would have committed no criminal offence. So maiming is no longer a relevant offence in the English courts, even though it has not been explicitly repealed.
Maiming continues to be a specific offence under military law in the USA under Article 128a of the Uniform Code of Military Justice and under the military law of several other jurisdictions, but usually only when performed on another. However, any self-inflicted wound is punishable under the Uniform Code of Military Justice, with the charge depending on whether the intention is to avoid service or not. Contrary to common usage, “shooting yourself in the foot” is something done to your advantage if you wish to exit the trenches, and it is logical that it would be an offence in military law to perform an act that would enable you to avoid fighting.
However, these statutes can be very problematic when the self-injury is the product of genuine mental illness. Punishing people who are genuinely mentally ill rather than simply trying to evade military service is clearly against natural justice, but the difficulty is in deciding when the reaction to military service is rational or not (c.f. the position of Yossarian in Catch-22).
Turning to the situation in Ukraine for Russian troops, it might be expected given the high death rates at the front that some of those liable for mobilisation would go to extreme lengths to avoid this. Self-injury to avoid military service continues to be an offence in the Russian Federation, under Article 339 of the Criminal Code:
Evasion of Military Service Duties by Pretending to Be Ill, or by Any Other Method
1. Evasion by a serviceman of his military service duties, by pretending to be ill or by inflicting injury on himself (maiming himself), or by forging documents, or by some other fraud, shall be punishable by restriction in military service for a term of up to one year, or by arrest for a term of up to six months, or by custody in a disciplinary military unit for a term of up to one year.
At the current time, it is an article that might be used frequently – although that is only if such injuries actually prevent mobilisation (one report from “Fontanka.ru” suggested there were two classes for mobilisation purposes – living and dead). Russian dissident journalist, Alexander Nevzorov, is quoted as commenting that voluntary amputation would become the most popular medical service in Russia. As we have seen, this would render those servicemen and servicewomen liable for prosecution.
So, although the offence may well be different in scope from the common law offence of maiming, the key element of the mischief remains the same – the state wants to maintain a population of healthy and able males of fighting age. Mother Russia expects every man and woman to do their duty, whether they like it or not.
Further Reading:
Joseph Heller, Catch-22 (Simon & Schuster, 1961)
Dr Samantha Pegg: Body modification – when consent is not a defence
James Fitzjames Stephen Digest of the Criminal Law (FH Thomas 1878)
Ari Freilich, “Fallen Soldier: Military (In) justice and the Criminalization of Attempted Suicide After US v. Caldwell.” (2014) 19 Berkeley Journal of Criminal Law 74
E.R. Milhizer ‘Maiming as a Criminal Offense Under Military Law’ (1991) 5 Army Law 1
Guy Zoghby, "Is There A Military Common Law of Crimes." (1965) 27 Mil. L. Rev. 75
R v Owen [1976] 1 WLR 840
R v Brown [1994] 1 A.C. 212, 262
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