Physical integrity as an object of control of a person’s free will

Volkova Alina Yur'evna ORCID: 0000-0003-1944-3453 PhD in Law Senior lecturer; Department of Criminal and Penal Enforcement Law; Nizhny Novgorod Academy of the Ministry of Internal Affairs of the Russian Federation 603950, Russia, Nizhny Novgorod region, Nizhny Novgorod, Ankudinovskoe highway, 3 auvolkovs@mail.ru Other publications by this author

Introduction. The protection of the individual, including his physical integrity, is the primary task of international law and domestic legislation, which emphasizes the importance of personal autonomy, self-control and self-determination of a person with his own body. Physical inviolability as an integral element of personal inviolability is recognized as an object of criminal law protection - when committing a crime, harm is caused to legitimate interests that are inalienable and inseparable from the right to life as such: the physical, mental and moral well-being of the individual. All the rights that make up the physical integrity of a person are grouped into the category of somatic: it is their totality that, according to N.N. Podolnaya, presupposes the realization of body functions and determines the quality of life of each individual ^{[1, p. 92]}.

In certain situations, a person independently puts the above-mentioned benefits in a situation of threat of harm: medical interventions, including artificial termination of pregnancy, sports injuries, surrogacy, injectable cosmetology, etc. Thus, somatic rights in aggregate should be considered as an object of disposal of a person's free will: in case of harm with permission or at the request of a person, it is possible to choose from the behavioral options available to him, i.e. in this case, to sacrifice his rights and freedoms ^{[2, pp. 193-194]}. The dynamic development of certain spheres of life necessitates an improved approach to regulating the physical integrity of the individual, that is, the possibility of disposing of it as an object of a person's free will.

The results of the study. The physical integrity of the individual is understood quite broadly: the life of the individual, his physical and mental health, including the right to sexual self-determination and reproductive rights. According to the provision of Part 1 of Article 22 of the Constitution of the Russian Federation, "everyone has the right to personal inviolability," where physical inviolability is only an integral part of it. This characterizes the following: personal inviolability is a substantive right provided for by both domestic and international legislation, and physical inviolability is an integral element of it. Within the framework of the study, possible cases of disposing of physical integrity to harm a person's own personal integrity are of interest.

The physical integrity of a person has the status of an object of criminal law protection. In all spheres, physical integrity, as a component of personal integrity, is an intangible good. According to I.A. Fast, this intangible benefit is of a system-forming nature, including mechanisms for unhindered implementation and proper protection ^{[3, p. 184]}.

Regarding the protection of this intangible benefit, the public nature of criminal legal relations underlies the recognition of actions as socially dangerous and encroaching on the rights previously mentioned and forming the physical integrity of the individual as a whole. In some actions, there is a legal assessment of the will of the individual, which underlies the non-punishability of the act and the reduction of the degree of public danger. Thus, the expression of an individual's will distinguishes between Articles 131 and 134 of the Criminal Code of the Russian Federation, exempts an HIV-infected person from criminal liability in Articles 122 of the Criminal Code of the Russian Federation, determines the punishability of actions related to illegal termination of pregnancy in Articles 111 and 123 of the Criminal Code of the Russian Federation, etc. In the examples given, a person voluntarily and consciously agrees to undergo the consequences of his choice, thereby disposing of his physical integrity.

I would like to outline the response measures of the State and individual subjects of the Russian Federation to the possibility of self-determination of the mother during childbirth. Thus, in the Komi Republic, already the tenth region of Russia, along with the Novgorod and Tver regions, administrative responsibility for inducing artificial termination of pregnancy has been introduced over the past year and a half, thereby preventing the restriction of the free will of a pregnant girl within such a difficult choice.

But in contrast to such measures in the subjects of the Russian Federation, it is necessary to highlight the situation in the United States of America, where in some states women's right to abortion was restricted, that infant mortality in Texas increased by almost 13% in the year after the adoption of Bill 8 of the Texas Senate, from 1985 in 2021 to 2,240 in 2022 ^[4].

Two state measures of the State response to the possibility of artificial termination of pregnancy reflect the consequences of restrictions on freedom in terms of a woman's decision-making related to the disposal of her physical integrity.

In accordance with the norms of foreign and international legislation, physical integrity is interpreted much more broadly: autonomy and self-determination in relation to one's body, the inadmissibility of any physical interference or pressure on a decision regarding natural physiological processes, as this is considered a violation of human rights and freedoms. And a special difficulty arises with non-standard forms of acts that violate the physical integrity of a person: illegal artificial insemination or embryo implantation, limited access to contraceptives, taking human genetic material, conducting experiments on a person, etc. Non-standard approaches to sexual identification also give rise to disputes regarding the disposal of physical integrity, especially in childhood. The norms concerning medical interventions in sexual anatomy in connection with intersex variations have not been codified in international law, and most countries have not adopted any legislation to ensure these rights. But a number of authors are trying to illustrate potential ways to eliminate legal gaps in the protection of all children's rights to physical integrity and (future) physical and sexual autonomy ^[5].

In the above-mentioned cases of encroachments on the physical integrity of a person, the decisive role is played by the freedom of will of a person in the disposal of certain somatic rights. But even the existence of a person's free will, obtaining the consent of a person in accordance with the procedure established by law and the production of these procedures requires their comprehensive assessment, taking into account the norms of morality and current legislation, as well as religious beliefs. These criteria form certain boundaries for the production of encroachments on the physical integrity of a person based on legal regulation and ethical permissibility.

In domestic realities, the issues of the realization of the right to sexual self-determination, including sexual education, are topical and are understood through the prism of violations of equal rights and equal opportunities of people on the basis of sexual and gender differences. This ignores the provisions of the Declaration of the World Association for Sexual Health, which asserts that sexual rights are based on universal human rights, which are already recognized in international and regional human rights documents, in constitutions and laws, legal norms and principles (Declaration of Sexual Rights by the World Association for Sexual Health (WAS): proclaimed on the 13that the World Congress of Sexologists in Valencia, Spain, in 1997 // Access mode: URL: https://worldsexualhealth.net/wp-content/uploads/2019/10/DSR-Russian.pdf (date of application: 07/15/2024).

The topic of sexual violence borders on the problem of domestic violence, which encroaches on the physical integrity of the individual. Countering these types of violence should be carried out institutionally: only the unity of their prevention and subsequent serious measures of responsibility will reduce the number of attacks on the inviolability of the individual as an object of criminal law protection.

The development of international legislation, for example, the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), which aims to protect women from all forms of violence, establishes the principle of free will of a person in the disposal of their physical integrity (Council of Europe Convention on Preventing and Combating Violence against Women and domestic violence. Istanbul, 11.V.2011 // Council of Europe Treaty Series No. 210. 36 p.).

In the case of exclusion of a person's free will in the form of voluntary freely expressed consent to an action against him, the specified normative document requires mandatory criminal prosecution. Thus, the principle of consent or its absence is the basis for punishability of attacks on the physical integrity of a person.

Articles 2 and 3 of the Law on Combating Prostitution in Japan defines prostitution and its punishable nature if a person engages in sexual intercourse with an unidentified partner for payment or promise to receive payment (The Law of Japan "On Combating Prostitution" dated May 24, 1956, as amended. Law No. 52 of 2022. // E-Gov ポーーールル URL: https://elaws.e-gov.go.jp/document?lawid=331AC0000000118 (date of application: 07/15/2024).

Thus, a person disposes of his physical integrity at his discretion when providing services of an intimate nature. The current domestic criminal law in Article 240 assumes responsibility for coercion into prostitution, including violent methods of involvement, thereby the guilty person violates the physical integrity of the individual in terms of the disposal of his own sexual freedom.

The explanatory report to the Istanbul Convention clarifies that prosecution "will require a contextual assessment of evidence in order to determine in each case whether the victim has the opportunity to freely consent to sexual intercourse without violence or threat of violence. This assessment should take into account the wide range of behavioral responses to sexual violence demonstrated by the victim and should not be based on assumptions about typical behavior in such situations. Consent is voluntary and permanent to participate in certain sexual relationships, but can be revoked at any time (for example: The High Court of England and Wales in the case of R v. DPP and "A". ^[2013] EWHC 945 (Admin); California Supreme Court, 29 Cal. 4th 756, 60 P.3d 183, 128 Cal. RPTR. 2d 783, 2003 Cal.)

In addition to the physical integrity of a person affecting her sexual rights, cases of voluntary suffering of harm characterized by an ambiguous psychological nature of origin require proper legal assessment: there are cases of apothemnophilia, also known as transability or transformability – this is a syndrome of violation of the integrity of perception of one's own body (body integrity identity disorder (BIID)), when diagnosing it, a person is concerned about the desire to amputate a healthy limb. According to the International Classification of Diseases adopted by WHO, this dysphoria belongs to the number of mental disorders, behavioral disorders or nervous development (ICD-11- International Classification of Diseases 11th Revision // World Health Organization, 2019. – Access mode: ICD API [website]. URL: https://icd.who.int/browse11/l-m/en#/http://id.who.int/icd/entity/256572629 (date of application: 07/16/2024). Patients suffering from BIID are aware of the discrepancy between their actual and assumed body schema, and they feel that being disabled is a necessary and important aspect of their personality ^{[6, p. 1407]}. This disorder is interpreted as a voluntary desire of a person to become disabled, which leads to harmful consequences manifested in the obsession of this idea, significantly affects productivity, leisure or any other social functioning, as a person exposes his health and life to serious danger.

Since the WHO has classified this disorder as a disease, satisfying a person's desire to violate the integrity of their body is not legitimate and socially acceptable. This is due to illegal cases of amputation to a person suffering from a similar disorder. In such a case, the voluntary expression of a person's will to violate physical integrity does not matter when deciding on the responsibility of the person who carried out the illegal medical intervention. In accordance with domestic legislation, there is no such diagnosis, the specified disorder does not have a legal status, therefore, a medical worker or other person who satisfies a person's desire to amputate a healthy limb will be criminally liable on general grounds, and his actions will be qualified depending on the intent of the harmer and the socially dangerous consequences that have occurred. A similar legal assessment is given to the conduct of FGM on the territory of the Russian Federation related to the change of a person's gender identity. Although the boundaries of the dispositive legal regulation of such actions should be determined using a multidisciplinary approach. According to experts, the main problems of this area concern a number of bioethical dilemmas, diagnostic difficulties, and methodological problems ^{[7, p. 26]}.

Conclusions. Freedom of action, awareness of choice and the ability to make it – this perfectly characterizes the disposal of a person's rights and legitimate interests within the framework of modern public relations, where the expression of a person's will can often be implemented in illegal ways. A person's awareness of the complex of his rights and freedoms that constitute physical integrity and their specifics will contribute to more effective implementation and protection by the state.

Physical integrity should be understood as a person's right to personal autonomy of his own body, which implies the protection of his physical, mental and moral well-being. The State's protection of the physical integrity of citizens in accordance with the requirements of international and domestic legislation makes it possible to assess violations of the physical integrity of another person as unethical and, in extreme cases, criminal acts.

In case of possible restriction of personal freedom in terms of disposing of one's physical integrity, the legislator must foresee the possible consequences of such a decision, including criminal ways of carrying out certain medical interventions in the future of certain prohibitions.

Doctrine, legislation and law enforcement practice should consistently and reasonably approach the legal assessment of situations involving violation of a person's physical integrity by his voluntary and conscious expression of will, which determines the degree of punishability of actions against a person who expressed such a will, regardless of the scope of such expression.