A Minor Blemish? - Kids and Tattoos in New York

December 8, 2011

“Can anyone tell me Mr. Bile’s big mistake? Anyone?” Monsters, Inc.

A recent article caught our eye. It concerned a young woman, a tattoo gun, and a couple of kids who now have artificial (if permanent) blemishes. To be more specific: an 18 year old finds herself in hot water because she allegedly tattooed two school girls. Both underwent the procedure voluntarily; the problem is that the older of the two was only 13, while the younger was 12. (The tattoos in question were a heart and a star. Who got which, we don’t know.)

It’s a story that raises some interesting issues and, though we’re mindful that no one’s been convicted of anything at this point, we thought we’d explore those issues. We’re taking the prosecution’s claims here as a hypothetical scenario, rather than the gospel truth.

So, with that understanding, where would a hypothetical young lady have gone wrong, if she’d done the things the defendant in the story is accused of doing? Clearly she would have committed one major error (at least twice), and may have messed up in other ways as well, as we’ll go into below.

To begin with (at least technically), she would have no business tattooing anyone without a license. Under our Public Health Law “[n]o person shall be a body piercing specialist or tattooist … without first obtaining a permit from the [Health] department.” And there’s no such thing as an ‘amateur’ body piercing specialist or tattooist. If you want to perfect a friend’s physical appearance - and your idea of perfection involves a hole, or a picture of Bugs Bunny - you must get a license first, or get someone who’s got a license.

The Health Department, according to its website, is developing a regulatory framework to enforce the law. Sooner or later they’ll finish it. Would-be scarifiers are also warned that localities are permitted to restrict piercing and tattooing, or to ban them altogether.

Licensed or not, permitted in her locality or not, our defendant would have no business tattooing minors. That’s called ‘unlawfully dealing with a child in the second degree‘, and it’s strictly forbidden by Section 260.21 of the Penal Law. Under Subsection 2 (thereof), a person deals unlawfully with a child when he or she “marks the body of a child less than eighteen years old with indelible ink or pigments by means of tattooing.” The Post Star correctly states that this is a class B misdemeanor, for which the defendant could receive a maximum of 90 days in jail (per count).

Note that the statute says nothing about whether the victims were willing or not. If the victim were unwilling, you’d be guilty of a more serious crime (an assault), and this statute wouldn’t be necessary. So clearly its purpose is to deter you from committing an act that the victim has agreed to. In fact, Article 260 of the Penal Law, which includes Section 260.21, and defines ‘offenses relating to children, disabled persons and vulnerable elderly persons’, is designed to protect children from their own bad judgment.

Note also that it doesn’t matter whether you knew the person requesting the tattoo was a child. This scenario is dealt with by Section 15.20 of the Penal Law, ‘the effect of ignorance or mistake upon liability‘:

[with respect to any offense] in which the age of a child is an element … it is not, unless expressly so provided, a defense … the defendant did not know the age of the child or believed such age to be the same as or greater than that specified in the statute.

So, the effect of ‘ignorance or mistake’ as to the age of the victim? None.

We conclude with a link to Burns v. Adler, a very thoughtful - and entertaining - trial court decision. Burns was actually a civil suit, but highly relevant to the issues we’ve been discussing, because it involved a defendant who’d decorated a minor with a yin/yang sign. And it also addresses what’s perhaps the number-one reason not to do what that defendant did: the absolute and undying fury of a parent.

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