4 October 2019 | Comment | Article by Alan Collins

HJ Talks About Abuse: Is male circumcision lawful?

In the latest episode of the HJ Talks About Abuse podcast we discuss the legal and ethical questions raised by the practice of male circumcision, and we do so against the backdrop of FGM – female genital mutilation which as a practice is illegal in the UK.

First of all, we look at some definitions.

Circumcision

Male circumcision is the surgical removal of the foreskin (prepuce).

Male circumcision is one of the oldest known surgical procedures and is traditionally undertaken as a mark of cultural identity or religious importance, or for perceived health benefits such as improved hygiene or reduced risk of infection.

It is almost universally practised among Muslims and Jews, the religious justification for Jews coming from Genesis 17, which states that circumcision is a covenant with God and that all boys should be circumcised on their eighth day. Some of Australia’s Indigenous communities have performed circumcision from time immemorial. It can be an important initiatory rite. It also has significance as a community or family tradition for many individuals. A boy’s circumcision can be a highly valued part of their identity.[i]

Circumcision continues to be a significant part of the social and cultural identity of some communities. A man’s circumcision status can significantly influence his social standing and affect eligibility for marriage, employment and friendship. It can determine the standing of a man within his family. It can also affect their right to participate in social and business matters. Circumcision has a role in the initiation of boys into the rights and responsibilities of manhood in some communities. Circumcision can also be a part of a larger ritual. For example, community elders sometimes teach sacred lessons, stories, songs, and dances to boys undergoing a rite of passage circumcision ritual.

FGM

Female genital mutilation (often referred to as “FGM”), and sometimes as female circumcision,  is a collective term used for a range of practices involving the removal or alteration of parts of healthy female genitalia for non-therapeutic reasons. Different degrees of mutilation is practised by a variety of cultural groups in the UK. The two most common forms of mutilation are excision and clitoridectomy. Circumcision involves the removal of the hood of the clitoris, with the body of the clitoris left intact, although this term is often euphemistically used to cover a range of forms of mutilation. Excision involves total or partial removal of the prepuce, clitoris and/or labia minora. Infibulation is the total amputation of all of the external genitalia together with the stitching together of the remainder of the labia majora leaving only a matchstick-sized opening for the passage of urine and of menstrual blood. Other mutilations include pricking, piercing or stretching of the clitoris and/or labia, cauterisation by burning of the clitoris and surrounding tissues, scraping of the vaginal orifice or cutting of the vagina, and introduction of corrosive substances into the vagina to cause bleeding or herbs into the vagina with the aim of tightening or narrowing it. The age at which such procedures are carried out varies from a few days old to just before marriage.[ii]

All forms are mutilating and carry serious health risks yet the number of girls and women worldwide who have undergone genital mutilation is estimated at between 100 and 140 million, with 3 million young girls undergoing it each year.[iii]

The reasons given to justify female genital mutilation are numerous but generally relate to tradition, power inequalities and the ensuing compliance of girls and women to the dictates of their communities. In sociological studies, WHO reports that the following reasons have been given for female genital mutilation: custom and tradition; religious demand; purification; family honour; hygiene (cleanliness); aesthetic reasons; protection of virginity and prevention of promiscuity; increasing sexual pleasure for the husband; giving a sense of belonging to a group; enhancing fertility; and increasing matrimonial opportunities. FGM is frequently condoned by family members in order to conform to social norms. There are often multiple decision-makers involved in a decision to perform FGM on a girl. Many women believe that their circumcision, excision or infibulation is necessary to ensure marriageability and acceptance by their community. There is clearly a cross over here between the reasons given in some communities for male circumcision.

As well as being unethical, female genital mutilation is illegal in England, Wales and Northern Ireland under the Female Genital Mutilation Act 2003 and in Scotland under the Prohibition of Female Genital Mutilation Act 2005. Both Acts make it an offence for any person:

(a) to excise, infibulate or otherwise mutilate the whole or any part of a person’s labia majora, labia minora or clitoris; or

(b) to aid, abet, counsel or procure the performance by another person of any of those acts on that other person’s own body, or

(c) to aid, abet, counsel or procure a person to excise, infibulate or otherwise mutilate the whole or any part of her own labia majora, labia minora or clitoris.

Both Acts also make it a criminal offence in certain circumstances to carry out female genital mutilation abroad, and to aid, abet counsel or procure the carrying out of female genital mutilation abroad, including in countries where the practice is legal.

These prohibitions are not absolute, and both Acts permit surgical and obstetric procedures that may fall within these categories if they are carried out by an appropriately registered practitioner either during childbirth or for the physical or mental health of the patient. There has been limited clarification of the circumstances in which procedures falling within this definition might be necessary. Valid exceptions to the prohibition on FGM are listed in the Explanatory Notes of both Acts and include surgery for gender reassignment, cosmetic surgery resulting from perceived abnormality, and operations to remove malignant tumours. There has been little clarification of the circumstances in which FGM might be necessary for mental health purposes. It is clear, however, that in determining whether an operation is necessary for the mental health of a person, “it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual”.

The case for male circumcision

We need to distinguish between medical reasons that are therapeutic reasons for circumcision and non-therapeutic reasons.

When we discuss male circumcision we are usually referring to baby boys or pre-pubescent boys, where they are not of an age to give consent. It is their parents who make the decision.

There may be medical reasons why circumcision is necessary (for example phimosis), and so the legal questions raised if any revolve around the need for surgery and the giving of informed consent by the patient.

It has been generally accepted that the circumcision of baby boys and young boys has been and is legal. Proponents of male circumcision argue that it is lawful and rely on the House of Lords’ decision in R v Brown [1993] 2 All ER 75:

 “Even when violence is intentionally afflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating. Surgery involves intentional violence resulting in actual or sometimes serious bodily harm but surgery is a lawful activity. Other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities”.

in the 1990s the Law Commission said that although in its view ritual circumcision was lawful, law reform to “put the lawfulness of ritual male circumcision beyond any doubt” would be useful, but this has yet to happen.

There have been no decisions on the lawfulness or otherwise post the HRA 1999. Rights that might be relevant to non-therapeutic circumcision include:

Article 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5(1): “Everyone has the right to liberty and security of the person.”

Article 8: “Everyone has the right to respect for his private and family life” except for the “protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 9(1): “Everyone has the right to freedom of thought, conscience and religion.”

Article 9(2): “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

It could be argued that in light of the HRA the position is now conclusive in that a boy cannot undergo circumcision unless he is of an age to consent to it, but is that right?

Circumcision is by its very nature an assault to the body and prima facie a criminal offence, and one that infringes, potentially, the boy’s HRA rights. His parents would say and, presumably the medical practitioner, or the person performing the procedure, a necessary one that was in his interests?

They would again presumably argue that the position is akin to their consenting to their son undergoing a necessary medical procedure and, therefore, in his interest?

The question to be asked is circumcision ever in a boy’s interest when in fact it is medically unnecessary?

Whilst proponents point to potential medical benefits for example that according to the World Health Organization (WHO) there is "compelling evidence" that circumcision reduces the risk of contracting HIV during heterosexual sex by 60 per cent, they appear to be at best marginal.[iv] Critics complain that removal of the foreskin leads to a loss of sensation in the glans. Negligently performed circumcisions can lead to even more serious outcomes. Statistically, such outcomes are very low.

At first blush, logic would dictate that if FGM is wrong then male circumcision must be too. Moreover, in light of the HRA, that consent of the boy is required. Maybe, however, this is too simplistic and ignores the argument that it is a procedure, that is not completely risk-free, but does confer some benefits[v]

The corollary between FGM and male circumcision is a misplaced one it seems given that it is recognised that FGM causes physical harm and so is considered mutilation with serious and often permanent damage, whereas although whilst male circumcision is not risk-free, it does not constitute mutilation.

The real issue is whether it is in the boy’s interest from a community or societal benefit and whether that overrides the fact that he has not consented or made the decision himself?

He, after all, is the one after all left the consequences for better or worse. He will have undergone a significant medical procedure which is not totally free of risk (the risk is very low but, nevertheless, is real) and could have profound physical and psychological consequences.

Parents who have their sons circumcised would no doubt say as they do that they would that consent on their part would not be forthcoming is caused harm. On the contrary, to causing harm they say it brings benefits that it enhances his well-being for example by becoming part of a religious community.

If parents can objectively point to benefits outweighing any perceived harm, or real risk of harm, then it is difficult to conclude that boys’ HRA rights are being infringed, or that an injury has been inflicted that amounts to the offence of assault or a civil claim for damages. If, however, the procedure is negligently performed than that could well give rise to liability both criminally and in tort.

 

[i] http://www.bradshawfoundation.com/unambal/circumcision_initiation.php ;WHO: Traditional Male Circumcision among Young People (11.09); BJU International (1999), 83, 17–21

[ii] https://www.who.int/reproductivehealth/topics/fgm/health_consequences_fgm/en/

[iii] https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation

[iv] https://www.who.int/hiv/topics/malecircumcision/en/

[v] https://www.bbc.co.uk/iplayer/episode/m0006wj8/a-cut-too-far-male-circumcision

 

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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