The proposed ban on circumcision in Iceland raises some uncomfortable questions about our own law

News that the Icelandic Parliament is to consider a Bill to ban male circumcision has sparked outrage across Europe, amongst Jewish, Muslim and even Roman Catholic leaders. The English translation of the relevant part of the Bill reads:

[Anyone found] removing sexual organs [from any child or woman], in whole or in part, shall be jailed for six years.”

A spokesman for Milah UK, a Jewish group which campaigns to protect the right for parents to circumcise their children said:

Jewish male neonatal circumcision – known as brit milah – is a non-negotiable element of Jewish identity, common to Jews from all backgrounds and respected in liberal democratic countries. For a country such as Iceland, that considers itself a liberal democracy to ban it, thus making sustainable Jewish life in the country impossible, is extremely concerning.”

Although the number of Jews in Iceland is tiny – about 250 – there are serious campaigns to ban male circumcision in other parts of Europe, especially Scandinavia. The issues involved are far from straightforward.

If there is one thing that unites left and right and what the law regards as “right-thinking people” it is that female genital mutilation (“FGM”) is a cruel and abhorrent practice that needs to be stamped out by any means possible. There is no question that millions of girls, mainly in Africa, have been subjected to the practice which, as is now well known, often involves the ritual cutting of the clitoris or labia and sometimes the sewing up of a girl’s genital organs. Whatever the reason for treating them in this way, whether it is to control their sexual desire or to mark their coming of age, or for any other reason it is generally regarded as an indefensible practice.

No discussion of Islam in Britain is complete without a denunciation of the religion for encouraging FGM (even though it is also practised by people of other religions, it is not practised by most Muslims and has been denounced by the Muslim Council of Britain). The belief that British Muslims are secretly mutilating girls on a huge scale has crept into the national consciousness. In fact, as I wrote last year, there is no reliable evidence that in Britain girls are being mutilated on a large scale at all.

By contrast, male circumcision – for gender balance we might as well call it male genital mutilation (“MGM”) – is widely practised but much less criticised. There are no laws against it and if it is mentioned at all in discussions on the issue it is usually to draw a sharp distinction with FGM. Male circumcision, it is asserted, brings health benefits, FGM does not. The discussion is at an end.

Yet as the medical ethicist Brian Earp has been pointing out with great lucidity for years, there are very many parallels between FGM and MGM. What is more, although the worst types of FGM are far nastier than male circumcision, there are some types that are much less invasive than the removal of the male foreskin. Don’t take my word for it, take the word of the President of the Family Division, Sir James Munby, from Re B & G [2015] EWFC 3:

Circumcision of the male (from the Latin circumcidere to cut round) is the removal of some, or all, of the prepuce (foreskin), the retractable fold of skin that surrounds and covers the glans of the penis, so as to expose the glans. Circumcision involves the removal of a significant amount of tissue, creates an obvious alteration to the appearance of the genitals and leaves a more or less prominent scar around the circumference of the penis. Apart from the removal of the foreskin, and sometimes of the frenulum, the ligament that connects the foreskin to the glans, the genitals are left intact.

It can readily be seen that although FGM of WHO Types I, II and III are all very much more invasive than male circumcision, at least some forms of Type IV, for example, pricking, piercing and incising, are on any view much less invasive than male circumcision.”

The type of “less invasive” type of “FGM” to which Munby P. was referring does not necessarily leave any visible damage or scar tissue, or create any long term physical interference with bodily or sexual function. It is described by the anti-FGM campaigner Ayaan Hirsi Ali (who herself underwent a considerably nastier form of genital cutting) thus:

The girl is held down, her legs pushed apart and a needle is used to prick her clitoris. The incision is similar to a finger prick test for diabetes, blood comes out and the girl is considered ‘cleansed’. Often there is a ritual with a little party to celebrate the procedure.”

It’s certainly not very pleasant, but even in the view of Hirsi Ali it is arguably not “mutilation,” although it is “done to symbolise mutilation.”

Although there is some doubt over whether such “symbolic mutilation” is in fact a crime in this country, the likelihood is that it is. Under S.1 of the Female Genital Mutilation Act 2003 the criminal offence is committed whenever someone

excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris.” (There are a number of exceptions that we do not need to go into here)

The doubt arises because there is some question over whether a small symbolic nick amounts to “mutilation,” as required by the Section. It has been doubted in Family Proceedings1, but an identically worded Australian statute was held to cover a cut which was undetectable by experts and left no scar tissue2. Even if it is not expressly covered by the 2003 Act, it would (at least in my view) probably amount to an assault occasioning actual bodily harm.

So we have an uneasy situation in which even the slightest symbolic cut to a girl is probably criminal, while a much more substantial cut to a boy is permitted.

When the equivalence between FGM and male circumcision is pointed out, the almost inevitable reply is:

“Ah, but FGM has no health benefits, male circumcision does.”

If the case for allowing the circumcision of young boys depended on its health benefits it really would be on the way out.

The supposed health benefits of male circumcision are very dubious. The main (and so far as I am aware the only) national paediatric organisation endorsing the practice for health reasons is the American Academy of Paediatrics which says:

“… the health benefits of newborn male circumcision outweigh the risks and … the procedure’s benefits justify access to this procedure for families who choose it. Specific benefits identified included prevention of urinary tract infections, penile cancer, and transmission of some sexually transmitted infections, including HIV.”

There is indeed some weak evidence that circumcised infants are less likely to develop urinary tract infections, but UTIs are not common in boys anyway and usually pretty easily treated when they occur. A theoretical reduction in the risk from a not particularly common, usually mild and easily treated condition is an almost laughably absurd justification for mutilating children. In any case, there is also some evidence that such infections are actually “strongly associated” with the circumcision itself. One Israeli study, for example, concluded that:

Ritual Jewish circumcision as practised in Israel may be a predisposing factor for UTI during the 12-day period following that procedure.”

As for the risk of penile cancer, it is a rare disease, and all but unheard of in children. With a rate of only 1 in 100,000 “person years” globally, it is less common than male breast cancer. Should adult men wish to have themselves circumcised in order to offer some degree of protection against a cancer that hardly any of them would get anyway that is of course up to them. Funnily enough hardly any adult does. It is certainly not a good reason for performing prophylactic surgery on healthy children.

The AAP’s view on the medical benefits of circumcision are not widely shared amongst doctors in other countries. The BMA describes the evidence of health benefits as equivocal, and advises doctors that

The evidence concerning health benefit from non-therapeutic circumcision is insufficient for this alone to be a justification for doing it.”

The Dutch medical association KNMG has been even clearer:

There is no convincing evidence that circumcision is useful or necessary in terms of prevention or hygiene. Partly in the light of the complications which can arise during or after circumcision, circumcision is not justifiable except on medical/therapeutic grounds.”

But surely, male circumcision provides some protection against contracting HIV, doesn’t it? Yes, possibly. But we need to be very cautious. The studies supporting the hypothesis were conducted in Africa where HIV is largely spread through heterosexual sex, and it is impossible to extrapolate these findings from Africa to Western Europe or Britain where it is more often spread by gay sex. There is very little evidence that circumcision provides any protection to HIV transmission via anal sex, for example. And even if it did, it does not necessarily follow that it has any value as a public health measure. Men who are circumcised may have a slightly lower risk of acquiring HIV, but they may compensate for that by being more likely to engage in risky sexual behaviour. The issues are beyond the scope of this blog, but interested readers could do worse than start with Brian Earp’s thoughts on the subject here.

But let’s assume, for the sake of argument, that circumcision does provide some modest protection against acquiring the HIV virus. That still does not begin to justify the forced circumcision of children too young to consent and too young to be sexually active. Why should boys be prevented from deciding the matter for themselves when old enough to do so?

In any case, even if there were some health benefits, and even if they outweighed the risks, any cost/benefit analysis also has to take into account the loss of function of a normal foreskin. It is not simply a “flap of skin” that can be cut away with no consequences. It is “primary erogenous tissue necessary for normal sexual function.” Indeed, historically one of the main non-religious justifications for circumcision was precisely because it was believed to reduce the temptation to masturbate by making the practice less appealing. The somewhat lloopy but extraordinarily influential Corn Flakes inventor J.H. Kellog advocated a number of cures for the “solitary vice” (apart from the obvious one of eating Corn Fllakes), including “binding the parts” and a “cage to enclose the organs,” but if these failed:

A remedy which is almost always successful in small boys is circumcision, …. The operation should be performed by a surgeon without administering an anæsthetic, as the brief pain attending the operation will have a salutary effect upon the mind, especially if it be connected with the idea of punishment, as it may well be in some cases. The soreness which continues for several weeks interrupts the practice, and if it had not previously become too firmly fixed, it may be forgotten and not resumed.”

(As an aside he also suggested an even more extraordinary “male infibulation” for dealing with erections:

It consists in the application of one or more silver sutures in such a away as to prevent erection. The prepuce, or foreskin, is drawn forward over the glans, and the needle to which the wire is attached is passed through from one side to the other. After drawing the wire through, the ends are twisted together, and cut off close. It is now impossible for an erection to occur, and the slight irritation thus produced acts as a most powerful means of overcoming the disposition to resort to the practice.”)

Some men might be quite happy with circumcision, others less so. But it should no more be for others to decide to remove a boy’s erogenous tissue than it is for them to decide to remove that of a girl.

Supporting the practice of male circumcision on the grounds that it confers health benefits is in any case a dangerous argument. What if it turned out that female circumcision also protected against HIV? Would opponents of FGM then turn round and argue – as the WHO argues in the case of male circumcision – for a campaign to promote FGM across Africa, ir indeed for a campaign to promote it in Britain?

There have not been many investigations, but the opposite hypothesis that FGM may increase the risks of HIV has been tested. It sounds plausible but in fact it is unproven, and awkwardly, a study of Kenyan women by US statistician Rosemary Kinuthia found a significant statistical association between women who had had FGM and a reduced risk of HIV infection. As she put it (I am no statistician but there may be a hint of the correlation = causation fallacy here): “the results indicated that the practice of FGM turned out to reduce the risk of HIV.” A separate 2009 study (also on Kenyan women) found that “women who had had FGC and an older first-union partner have lower odds of being HIV positive than women with an older first-union partner but without FGC,” although it found that the opposite was the case with women who had a “younger first union partner.”

Let’s test the “infant circumcision is justified on health grounds” argument by a little thought experiment. Let’s apply it to FGM. If it could be demonstrated – and it is not totally unimaginable – that, say, removing the clitoral hood of young girls resulted in a somewhat lower risk of them developing HIV as adults, would that justify the procedure? Would it then be right to say of your daughter:

Let’s be on the safe side and give her the snip. Of course there may be some minor changes in her sexual sensitivity when she grows up, but I don’t suppose she’ll mind. After all we know what’s in her best interest. She’ll thank us for it when she’s old enough to understand.”

You only need to state the argument to see how ridiculous it is.

The case for allowing circumcision cannot depend on medicine. It depends on the argument that a tolerant and liberal society must allow its citizens a wide freedom to practise a fundamental part of their religion. The question is whether the argument for tolerance trumps that of the rights of the child.

This is uncomfortable territory for both sides of the argument. Disagreeing with a practice is not in itself a good reason to make it criminal. Criminalising a section of society for practising their religion is an extraordinarily dangerous road down which to travel. On the other hand, I can see no obvious reason why male circumcision should be legal when apparently less harmful types of female genital cutting, also done for religious reasons that seem obscure to non-believers, are criminal.

 

1Barnet LBC v. M (November 10th 2016), HHJ Meyer

2R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221

The post The proposed ban on circumcision in Iceland raises some uncomfortable questions about our own law appeared first on BarristerBlogger.

Source: http://barristerblogger.com/2018/02/19/proposed-ban-circumcision-iceland-raises-uncomfortable-questions-law/

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