Buffalo Law Review, Volume 45: Pages 573-586, 1997.
Human rights activists and the media have been successful in advancing legal arguments against female circumcision. The international community has taken a stand against the procedure, creating international and domestic remedies. Fortunately for women, there is hope of eventual eradication. The same response has not occurred for male circumcision, exhibiting the Western legal world's hypocrisy. In the West, where routine male circumcision proceeds unnoticed and unquestioned, female circumcision is now widely understood as a human rights abuse.
Legal arguments advanced in opposition to female circumcision may likewise be utilized against male circumcision. There are several international laws, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),253 the Convention on the Rights of the Child (CRC),254 the African Charter on Human and People's Rights (ACHPR),255 as well as domestic and foreign statutes that provide a sound basis for arguing for the eradication of female circumcision. Except for the CRC, these international laws, unlike domestic and foreign statutes, provide support for eradication, but do not ban the practice. The best legal remedy to address male circumcision on a worldwide scale, however, may be the combined application of the CRC, customary international law, and existing domestic laws. The establishment of a convention for the protection of males seems unlikely. In the United States, the largest performer of routine infant circumcision, and the focus of this analysis, the best solutions include the use of existing domestic child abuse laws, a federal law banning the procedure, and civil litigation.
1. International Documents and Foreign Legislation. Female circumcision is most often linked to issues of sexual equality,257 since its justification has been connected to claims that women are inferior and subordinate to men.258 CEDAW is the most promising convention calling for an end to this type of discrimination against women.259 CEDAW focuses on traditional practices which violate women and their human rights. Articles 1 and 5 specifically call for the elimination of discrimination against women based on cultural practices impairing women's human rights and fundamental freedoms.260 The cultural justifications for female circumcision continue to perpetuate the inequality of women in society. "[T]he elimination of prejudices and customary and all other practices which are based on the idea of the inferiority of either of the sexes or on stereotyped roles" are addressed in Article 5. In addition, Article 12 of CEDAW focuses on the health of women,261 while Article 10, similar to Article 5, calls for the elimination of stereotypical conceptions of the role between the sexes.262 These articles illustrate the need for the elimination of female circumcision. The abuse results in drastic health complications and continues to allow men to dominate women by destroying their genitalia.263 CEDAW signatories are in direct violation of these articles when they permit the practice of female circumcision.<
The Committee responsible for implementing CEDAW has made several recommendations which specifically address the eradication of female circumcision. General Recommendation No. 14 calls for its eradication through a variety of means.264 This recommendation is said to take normative approach; its language follows that of the CRC by linking the practice to health.265 CEDAW urges that measures be taken which are educational in nature and that women's groups take the lead in the eradication.266 There is no call, however, for drafting legislation or implementing an enforcement body for protection.267
Although CEDAW appears promising, one of the greatest barriers to its implementation is the lack of an effective enforcement mechanism. Like other U.N. documents, CEDAW is difficult to enforce, for example, in rural African communities.268 Even though CEDAW has been widely ratified by countries practicing female circumcision, the convention still contains the largest number of reservations of all human rights treaties and conventions.269 The majority of reservations are founded upon the convention's direct conflicts with Shari'ah (Islamic Law) and traditional practices.270 Such strong reservations make the eradication of female circumcision by the application of this treaty more difficult. Efforts to combat the abuse, however, must include CEDAW's application.
Continued female circumcision also violates several provisions of the more recent Convention on the Rights of the Child (CRC).271 The CRC contains the only "codified prohibition" of female circumcision in human rights law.272 Article 24(3) requires nations to abolish traditional practices that jeopardize the health of children.273 The article's scope is said by its drafters to encompass female circumcision274--although not specifically highlighted, the term `harmful traditional' practices is meant as a prohibition on female circumcision.275
In addition, there are three other CRC articles with which female circumcision conflicts: Article 19 proscribes child abuse;276 article 16 provides children with a right to privacy;277 and article 37 prohibits the torture or cruel, inhuman, or degrading treatment of children.278 Subjected to circumcision, a child's privacy is violated. Moreover the child falls victim to extreme physical and mental violence. It is difficult, at the very least, to deny that the vicious ripping of a child's genitals with a dirty knife constitutes torture or cruel treatment. The international community should be called upon to declare that female circumcision violates all four applicable CRC articles.
The African Charter on Human and People's Rights is another international instrument which can be utilized to eradicate female circumcision.279 Several articles of the treaty can be interpreted to proscribe female circumcision. Although the African Charter recognizes the importance of traditional practices in numerous articles,280 its purpose is to protect human rights. Since the fundamental basis of the African Charter is to protect human and peoples' rights, it is contradictory if female circumcision is considered a legitimate traditional practice. Article 29(7) clearly reiterates the aim of the Charter: "[t]o preserve and strengthen positive African cultural values." Many practicing communities may, from a cultural prospective, view female circumcision as a positive value worthy of preservation. The Western world and many international organizations, however, would disagree.
The African Charter in article 4 states: "Human beings are inviolable. Every person shall be entitled to respect for his life and the integrity of his person."281 Article 5 proclaims that "torture, cruel, inhuman or degrading punishment or treatment shall be prohibited."282 Article 16 declares that all are entitled to the highest level of physical and mental health. Article 18 calls for state assurance of non-discrimination against women as well as "the protection of the rights of the woman and the child as stipulated in international declarations and conventions."283 Female circumcision is clearly in violation of the terms of these articles. If women are entitled to the highest level of health maintenance, female circumcision must be considered a violation of this right. Women experience great physical and psychological complications as a result of the inhuman treatment inflicted upon them.284
In addition to the variety of international documents which provide a useful framework for banning female circumcision, a number of countries prohibit the practice. Burkina Faso, Great Britain, Sweden, and Switzerland are just a few of the countries which have actively responded to the abuse.285 Countries such as Canada, France, the Netherlands, Belgium, Australia, and Switzerland punish the practice under child abuse laws, while Great Britain and Sweden have explicitly outlawed the procedure.286 African countries such as Cameroon, Djibouti, Egypt, Ghana, and Sudan have also enacted legislation which prohibits female circumcision.287
2. Recent Domestic Legislation. As new immigrants gave brought the practices of female circumcision within the borders of the United States, the government and individual states, in similar fashion with foreign legislation, are outlawing female circumcision. Not only has President Clinton signed legislation criminalizing female circumcision,288 but several states have specifically enacted legislation prohibiting the practice.289 Congressional response to the issue of female genital mutilation is not surprising in light of the state's interest in child welfare.
The federal ban on female circumcision is a result of the tireless efforts of Senator Harry Reid, a democrat from Nevada, and retired Representative Patricia Schroeder, a democrat from Colorado. In September 1994, Senator Reid introduced a "Sense of the Senate" resolution condemning the practice of female circumcision.290 Following this resolution, Senator Reid introduced the bill banning the practice.291 In June 1995, the United States House of Representatives passed retired-Representative Schroeder's resolution, "urging the President to help end the practice of female [circumcision] world wide."292 However, it was not until September 30, 1996, that President Clinton signed the Department of Defense Omnibus Appropriations Bill which contained a provision criminalizing female genital mutilation.293 Although the law is now in effect, it contains no specific enforcement provisions.
1. International Documents and Customary International Law. The international community has failed to view male circumcision as a human rights abuse. A call for eradication of this physical and psychological abuse is necessary and may be developed through interpretation of a combination of treaties, customary international law, and American domestic law.294 The CRC is one example of a convention applicable to male circumcision. Male circumcision, like female circumcision, is a `harmful traditional practice.' The act itself may constitute child abuse because of its non-accidental physical and psychological infliction on children.295 The procedure is generally done without anesthesia and consequently a child is subject to cruel and torturous treatment. Moreover, a child is an individual and does have a right to privacy.296 The CRC's articles are directly applicable to the case of male circumcision and should be utilized to seek its eradication.
The Universal Declaration of Human Rights (UDHR),297 which is generally accepted as customary international law, could also be utilized. The human rights principles referred to in the Charter of the United Nations are articulated in the UDHR.298 The UDHR provides for universal standards of human rights for all peoples and all nations.299 Common practice by nations over the past fifty years has established these rights as customary international law. "A customary norm binds all governments, including those that have not recognized it, so long as they have not persistently objected to its development."300 Some of these rights have ever reached the status of preemptory norms; freedom from torture is one such example.301 Article 5 of the UDHR prohibits acts of torture and inhuman treatment.302 Although male circumcision takes less than ten minutes to perform, the duration of the abuse is superfluous; ten minutes of unnecessary and violent treatment which removes a perfectly healthy body part should be recognized and treated as torture. Therefore, the fundamental guarantees of the UDHR should protect these infants and be utilized in the abolition of circumcision.
Two other articles of the UDHR are applicable to male circumcision: article 12 provides a right to privacy, and article 3 provides a right to security of person.303 A newborn is entitled to the same privacy rights as any human being. Circumcision is a violation of a child's bodily integrity, privacy, and security. The unwarranted removal of a child's healthy foreskin can be likened to amputation and "if one wishes to practice an amputative type of preventative medicine, one could find many more rewarding structures to cut off rather than the foreskin."304 The U.N. has called upon governments, urging the act of amputation be abolished.305 Male circumcision, like amputation, is another form of torture or inhumane treatment that violates the security of person. Subjecting a child to this invasive and mutilating procedure is a violation of these norms. The U.N. should acknowledge male circumcision as an act of torture and inhumane treatment and call for its eradication. The difficulty, however, remains that there is no mechanism to enforce such customary norms.
2. Domestic Remedies. The United States is the only Western country that still routinely circumcises infant boys for nonreligious reasons.306 An obvious response to this abuse is the invocation of domestic remedies that criminalize the practice under existing child abuse statutes or authorize damages and recourse through civil law.307 State statutes prohibiting assault and battery and conspiracy to commit assault and battery could be possible methods of combatting male circumcision.
The difficulty is applying these statutes is that most Americans do not perceive male circumcision as a human rights abuse, let alone child abuse.308 Moreover, establishing the requisite mental state for the crime would be difficult.309 It is difficult to prove that a parent who chose to circumcise a child out of religious fealty or a sincerely held desire to protect a child from disease intended to "purposely, knowingly or recklessly cause bodily injury" to that child.310 Given these difficulties, the best remedy would be passage of a law specifically outlawing the practice of male circumcision, much like the statute criminalizing female circumcision.
The criminalization of circumcision presents formidable constitutional problems.311 Constitutional derived rights of privacy, autonomous parental rights, and the protection of the free exercise of religion cut against in some capacity, the criminalization of circumcision. Any attempt to prohibit male circumcision would have to pass vigorous constitutional tests.
Constitutional challenges could make criminal sanctions difficult to apply. The Constitution does not expressly state that parental decision-making regarding the care, custody, and control of children constitutes a fundamental rights. However, the Supreme Court has recognized that the Constitution protects such decisions, limited by the requirement that parents "may not endanger the lives or physical well-being of their children simply to raise them within the confines of their own culture."312
1. Parental Rights and The Right to Privacy. Unlike the free exercise of religion, the right to privacy is not expressly granted in the Constitution. However, the Supreme Court has interpreted the Constitution, specifically, the first, second, third, fourth, fifth, and ninth amendments, to confer fundamental privacy rights.313 The Court has extended fundamental privacy rights, in differing degrees, to areas of sex,314 marriage,315 child-bearing,316 and child-rearing.317 If a right is deemed fundamental, government action that impinges on the right must pass a test of strict scrutiny.318 The criminalization of male circumcision, however, can survive the strict scrutiny required for government interference with parental rights, as the procedure renders extreme physical and often emotional damage to the infant.
Two of the Supreme Court's strongest opinions favoring parental rights are Stanley v. Illinois319 and Griswold v. Connecticut.320 In Stanley, the Court struck down a statute that denied an unmarried father, upon the death of the mother, custody of his children. The decision focused upon the parent's interest in keeping his child and not on a child's interest in staying with his parent. "Stanley made it very clear that the mere assertion of [the state's] parents patriae interest in the protection of the child was insufficient to warrant abridgement of parental rights unless the potential harm to the child was significant."321 In Griswold, the Supreme Court held that married couples have the right to obtain contraception; the Court based its opinion not on the right to privacy, but on the fundamental safeguards protecting the home and family.
Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence from the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted Constitutional Right … .322
The Supreme Court, however, has limited parental rights "it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens."323 Furthermore, the Supreme Court in Roe v. Wade held that a state has a significant interest in safeguarding health and safety in the maintenance of medical standards.324 Therefore the State's interest in protecting the health, safety and welfare of children supplants the parent's fundamental rights to make decisions regarding their children when those decisions jeopardize the health or safety of the child.325
Often the Supreme Court overrides family relationships in efforts to protect children.326 Prince v. Massachussetts is the pre-eminent case affirming that the government may intercede on behalf of children by undercutting parental rights.327 Prince held that, "[P]arents may be free to become martyrs themselves. But it does not follow that they are free ... to make martyrs of their children before they have reached the age of full and legal discretion when they can make the choice for themselves."328 Therefore, parents do not have the constitutional authority to consent to superfluous practices, such as male circumcision, that jeopardize the health and safety of children.
2. Freedom of Religion--The Free Exercise Clause. The United States Constitution guarantees that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."329 The First Amendment confers two different religious protections by way of the Establishment Clause and the Free Exercise Clause. The Establishment Clause protects minority religions from government endorsement of the majority's religion, while the Free Exercise Clause grants wide ranging protection to an individual's personal religious choices.330 The government, however, maintains a compelling interest in protecting children from harmful religious practices.
The Supreme Court's free exercise line of law begs the question whether criminalization of circumcision would apply to those who practice religion on religious grounds. The Supreme Court's 1990 decision in Employment Division v. Smith demonstrated a break with most past free exercise theory, holding enforceable laws not intended to burden religious activity but nevertheless placing a substantial burden on the free exercise of an individual's religion.331 The Smith majority stated: "the right to free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes … conduct that his religion prescribes."332 The issue in Smith was whether the State of Oregon could criminalize the possession of peyote without exempting those Native American Indians for whom the use of peyote constituted a central part of their religious rituals.333 The majority held that the State could decline to exempt Native American Indians and that, as long as the ban on the possession of peyote was neutrally enforced, the Court was not required to balance the state's interest in criminalizing the possession of peyote against an individual's religious beliefs.334 Moreover, the Supreme Court has "never held that an individual's religious belief's could excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."335 That the record of free exercise jurisprudence is not contrary to such a proposition was clearly articulated by Justice Frankfurter in Minersville School District Board of Education v. Gobitis:
Conscientious scruples have not in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.336
3. Religious Freedom Restoration Act. The Smith decision demonstrates the Rehnquist Court's trend toward curtailing the free exercise of religion.337 Following Smith, religious lobbies expressed concern that the decision limited the free exercise of religion.338 "For the first time, the Court held that the compelling state interest test should be invoked in religious exemption cases only when the governmental action at issue is neither neutral nor generally applicable, that is, when the law facially persecutes a particular religion."339 In response to the controversial decision, Congress enacted the Religious Freedom Restoration Act (RFRA).340 RFRA provides that the "government shall not substantially burden a person's exercise of religion" unless it first demonstrates that the "application of the burden to the person" is the "least restrictive means" in the furtherance of "a compelling governmental interest."341 RFRA, in contrast to the Smith decision, "privileges religiously motivated conduct."342 At the signing of RFRA, President Clinton indicated "that the bill was an exercise of Congress's `extraordinary' power to `reverse by legislation a decision of the United States Supreme Court.'343
On June 25, 1997, the Supreme Court reaffirmed its holding in Smith and struck down RFRA.344 Ruling that Congress had overstepped its bounds in eschewing judicial precedent--the line of Supreme Court decisions stemming from Smith--the Court health that "[w]hen the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs."345 While many religious leaders and civil rights advocates will see Boerne as the Court's further departure for "vigorously protecting religious rights,"346 other are in accord with the high court's decision, maintaining that "RFRA did not vindicate constitutionally recognized religious liberty; it heretically exalted believers above the ordinary commands of the law … ."347 Even by the standards set in RFRA, however, the government has been permitted to protect public health and safety in derogation of some religious freedoms.
In Jehovah's Witnesses v. King County Hospital,348 the Supreme Court, applying Prince v. Massachussetts,349 affirmed a district courts ruling mandating that a child of Jehovah's Witness parents receive an emergency blood transfusion.350 Over the parents' due process and free exercise objections, the district court found the parent's conduct not constitutionally protected.351 The King County decision, like the decision in Prince, placed limitations upon parental free exercise rights, both holding that "these rights do not include a right to endanger seriously a child's physical health or safety."352 These cases establish the State's interest in protecting the welfare of children and promoting societal values.353 If the welfare of children is to be protected, circumcision cannot be performed as our society values humanity and not abuse.
The fact that circumcision is a tenet of certain religions is not a reason to provide an exemption from a generally applicable criminal law. The government's motivation for a criminal law would be for the protection of the safety and health of newborns, not intentional discrimination against specific religions. As evidenced by the massive government regulatory system, protecting the health of the nations is a primary concern. The State is free to regulate health standards and therefore, compliance with a generally applicable law against circumcision would be mandatory, regardless of the burden placed on individual religious beliefs.
Other major constitutional conflicts have arisen between freedom of religion and secular law. In Reynolds v. United States,354 the Supreme Court held that religious practices which are harmful to society could be limited and stated that limitation is necessary in order to avoid "mak[ing] the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."355 A difficulty exists in arguing that circumcision is harmful to society. However, abusing infants strikes against the core of societal values. Male circumcision, performed as a religious practice or for non-religious reasons, is an abuse, and if society refuses to tolerate any form of child abuse, society must refuse to tolerate male circumcision.
Cases involving interplay between education and religion have also sparked constitutional conflicts.356 One case is Wisconsin v. Yoder,357 in which the Supreme Court held that Amish parents could not be prevented from withdrawing their children from public schools, since they contended that public schooling would lead to destruction of their religion.358 There are, however, significant differences between the right of a parent to deny education on religious grounds, and circumcision as a religious rite:
(1) denial of education is at least partly reversible, whereas the disfigurement caused by the removal of a body part is not, and (2) the physical pain and suffering, with potentially significant surgical and general health complications, inflicted on infants by circumcision is not found in parents denial of education to their adolescent children.359
A circumcised child cannot "technically" reverse the procedure, whereas a child may seek education later in life.
Civil Lawsuits may provoke one of the best means of preventing male circumcision, since such suits will avoid the constitutional issues of parental rights and religious freedom. Under tort law, a patient has the right to exercise control over his or her body.361. The informed consent doctrine grants patients the right, absent extenuating circumstances, to decide whether to subject themselves to a medical procedure.362 Infants, however, are legally incompetent to consent to medical procedures.363 A physician must provide the patient with all the medical information on the procedure so the patient can make an informed decision.364 Since there is no conclusive medical necessity for male circumcision, physicians have a responsibility to inform parents that the removal of the foreskin is unnecessary and that both extreme physical and psychological complications can result.365 A physician who does not fulfill his or her duty to disclose could be subject to a suit for damages by the parents or child.366 Moreover, it is the duty of the physician to serve the child's interest and not the parent's"367 However, the establishment of a civil remedy for those harmed by circumcision poses the same difficulties as criminalizing the procedure: American society possesses predetermined beliefs and cultural values regarding male circumcision and its effects.368
The final potential legal remedy that could be used by those harmed by male circumcision is a civil rights class action suit against hospitals and doctors who perform circumcision.369 Filing a class action lawsuit would place the blame directly upon the perpertrators. Hospitals should be in the forefront of preventing routine infant circumcision, refusing to endorse male circumcision unless medically warranted.370 A large percentage of doctors are aware that routine infant circumcision is unnecessary; by performing the procedure, doctors are culpable.371 The advantage to a class action suit is that it avoids constitutional issues;372 the suit is not focused on parental rights or religious rights, but on the institutions and individuals who actually carry out the procedure.373 Such a class action suit, however, would fail to protect many Jewish newborns, since the procedure is generally performed outside a medical facility; only a criminal law could protect those children.
Convention On the Elimination of all Forms of Discrimination Against Women, G. A. Res. 34/180, U.N. GAOR, 34th Sess. Supp. No. 46 at 193, U.N. Doc A/34/46 (1980) (entered into force Sept. 3, 1981) [hereinafter CEDAW]; see also Laurel Fletcher et al, Human Rights Violations Against Women, 15 Whittier L. Rev., 336-47 (1994) (providing an explanantion of various articles and text).
Convention on the Rights of the Child, G. A. Res 44/25 U.N. GAOR, 44th Sess., Supp. No. 49, at 166, U.N. Doc A/44/49 (1989) [hereinafter CRC].
African [Banjul] Charter on Human and People's Rights. O.A.U. Doc CAB/LEG/67/3/Rev. 5 (1981) (entered into force) Oct. 21, 1986) [hereinafter ACHPR].
This section does not discuss the constitutional issues surrounding domestic remedies for female circumcision. The purpose here is to make an analogy between female and male circumcision demonstrating ways in which various international documents can and cannot be applied to male circumcision. Additionally, this section reiterates the tremendous strides being made towards the eradication of female circumcision, while the abuse of male circumcision is virtually ignored.
Joan Fitzpatrick, The Use of International Human Rights Norms to Combat Violence Against Women, in Human Rights of Women: National and International Perspectives 540-43 (Rebecca J. Cook ed., 1994).
Lewis, supra note 9, at 45; see also Funder, supra note 22, at 422.
CEDAW, supra note 253, at art. 1, art. 5.; see also Lewis, supra note 9.
"States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care ..." CEDAW, supra note 253, at art. 12(1).
"States Parties shall take all appropriate measure .... [for] the elimination of any stereotyped concept of the roles of men and women ...."[CEDAW], supra note 253, at ar. 10(c).
These methods are the collection and dissemination of materials about traditional practices, support of women's organizations working for the eradication of female circumcision, encouragement of an integrated and team approach toward eradication, educational and training programs, new health policies, and calling upon international bodies for assistance. Report of the Committee on the Elimination of Discrimination Against Women, General Recommendation No. 14; Female Circumcision, U.N. GAOR, 45th Sess. U.N. Doc. A/45/38/ (1990); see also Lewis, supra note 9, at 46.
Id.; see also Toubia, supra note 2, at 45; "Of the UN human rights treaties, CEDAW has attracted the greatest number of reservations with the potential to modicy or exclude most, if not all, of the terms of the treaty ...[and so it is] the human rights instrument least respected by the states parties." Belinda Clark, The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women, 85 Am. J. Int'l L. 281, 317-18.
Id. "States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children." CRC, supra note 254, at art. 24(3).
Geraldine Van Buren, The International Law on the Rights of the Child 307 (1995).
"States Parties shall take all appropriate ...measures to protect the child from all forms of physical or mental violence." CRC, supra note 254, at art. 19(1).
"No child shall be subjected to arbitrary or unlawful interference with his or her privacy ..." CRC, supra note 254, at art. 16(1).
"States Parties shall ensure that: (a) no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment." CRC, supra note 254, at art. 37(a).
Culture, supra note 18, at 1954-56. Male circumcision is practiced in several western African countries among various tribal groups. The ACHPR could be utilized in these countries against male circumcision. Most of the articles applicable to female circumcision, with the exception of article 18, can be applied to protect infant males from this abusive practice. Although most people who practice male circumcision view it as positive traditonal value that should be preserved, the infliction of pain and suffering on infant males is torture and an inhuman social practice, mandating abolition.
ACHPR, supra note 255, at arts. 17, 19.
ACHPR, supra note 255, at art. 5; see also Culture, supra note 18, at 1955.
ACHPR, supra note 255, at art. 16, art. 18; see also Culture, supra note 18, at 1955.
Rone Tempest, Ancient Traditions vs. the Law, LA Times, Feb. 18, 1993, at A10; Mary Winter, Questions and Answers About Female Genital Mutilation, Rock Mtn. News, Jan. 31, 1996, at 8D. Sweden has the oldest law in Europe criminalizing female circumcision, passed in 1982. Mariam Isa, London Clinic Fights Myth and Practice of Female Circumcision, Reuters World Serv., Mar. 12, 1995. In Great Britain, the Prohibition of Female Circumcision Act of 1985 makes it illegal for anyone to "excise, infibulate or otherwise mutilate" or to "aid, abet, or procure the performance of another person of any of these actis." J.A. Black & G. D. DeBelle, Female Genital Mutilation in Britain, 310 British Med J. 1590, 1591 (1995). Individuals found guilty of violating the law are liable for a fine and up to five years imprisionment. Id. Although the law comprehensively bans female circumcision, no one has been prosecuted since its passage. Id.
Nahid Toubia, Female Circumcision as a Public Health Issue, 331 New Engl J. Med 712, 715 (1994); Joan Beck, Female Mutilation Shouldn't be Tolerated Anywhere, Chi. Trib., Sept. 15, 1994, at N29; Prohibition of Female Circumcision Act, 1985, 38 1(1)(a)-(b) (Eng.); Karen Hughes, The Criminalization of Female Genital Mutilation in the United States, 4 J.L. & Pol'y 321, 324-35. (1995); Annas, supra note 296, at 334-35. Under Article 312, France prohibits "grevious bodily harm to a minor under 15." Collete Gallard, Female Genital Mutilation in France, 310 Brit. Med. J. 1592 (1995). Although France does not have a specific law banning female circumcision, France has prosecuted parents for circumcising girl children under Article 312 Tempest, supra note 286, at A1. France has held more than fifteen trials involving over thirty family from Mali, Mauritania, Gambia, and Senegal. Marlise Simons, France Jails Woman for Daughter's Circumcision, N.Y. Times, Jan. 11, 1993, at A8; Celia W. Dugger, New Law Bans Genital Cutting in United States, N.Y. Times, Oct. 12, 1996, at 1.
Hughes, supra note 286, at 325. Although the practice continues in Sudan, female circumcision was banned in 1940. Giles Laffon, UN Welcomes "will to act" on Genital Mutilation of Girls, Agence France Press, Aug. 11, 1996.
Department of Defense Omnibus Appropriations Act, 18 U.S.C. 116 (1997). The law criminalizing female genital mutilation provides:
Id.(a) Except as provided in subsection (b), whoever knowingly circumcises, excises or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.
(b) A surgical operation is not a violation of this section if the operation is--
(1) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or
(2) performed on a person in labor or who has just given birth and is performed for medical purposes connected with the labor or birth by a person licensed in the place where it is performed as a medical practitioner, midwife, or preson in training to become such a practitioner or midwife.
(c) In applying subsection (bx1), no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that person, or any other person, that the operation is required as a matter of custom or ritual.
North Dakota was the first state to pass a law banning female circumcision. N.D. Cent. Code §12.1-36-01 (1997). Other states have followed North Dakota's lead See Del. Code Ann. tit. 11 §780 (1996); Minn. Stat. §144.3872 (1996). As this comment went to press, the Governor of Illinois signed into law Illinois Public Act on 90-88 criminalizing female genital mutilation. See H.B. 106, 90th Leg., 1997-98 Reg. Sess. (Ill. 1997) Minnesota's law contains no specific penalty. Minn Sent. Guide II.A (1995). Enactment of this statute within the health section of the Minnesota code demonstrates the misconceptions surrounding male and female circumcision and fails to acknowledge the lack of conclusive medical evidence warranting male circumcision and its resulting complications. Tennessee's statute makes female circumcision a criminal offense. Tenn Code Ann. §39-13-10 (1996). The statute specifically uses the word "circumcises" and although it refers to excision and and infibulation, utilizing the word "circumcises" is a reiteration of the hypocritical nature of the legislation and the United States' misconception of what constitutes human rights abuse. Colorado, Louisana, New York, Pennsylvania, and Rhode Island have attempted to ban female circumcision. See S B 31, 60th Leg., 2d Reg. Sess. (N.Y. 1996); H.B. 7769 Reg. Sess. (R.I. 1996); Scott MacKay, Genital Mutilation Bill Spurs Harsh Words, Providence J. Bull., Apr. 12, 1996, at 3B.
Congressional Press Releases, Statement of Senator Harry Reid Regarding the Federal Prohibition of Female Genital Mutilation Act of 1995, July 17, 1995 (hereinafter Reid Press Release).
S. 1030, 104th Congress, 1st Sess. (1995); see 141 Cong. Rec. S9, 997 (1995).
Congressional Press Releases, House Passes Schroeder Resolution on Female Genital Mutilation. June 7, 1995.
18 U.S.C. 116 (1996).
The focus of this examination of domestic laws will be the United States, as it is the leader in routine infant circumcision. Conversely, it should be noted: The European medical community condemns the U.S. for a practice they call a barbaric violation of human rights. Europeans believe that males have a basic human right to an intact penis, a right to keep the body they were born with, and a right to body owner- ship and autonomy. For them it is a question of respect and dignity. Frederick Hodges & Jerry W. Warner, The Right to Our Own Bodies: The History of Male Circumcision in the U.S., M.E.N., Nov. 1995, at 11.
Brigman, supra note 52, at 338.
Eisenstadt v. Baird grants individuals the right to privacy, 405 U.S. 438, 453 (1972). In the case of the right to privacy in the United States, the child too should remain free from this invasion. See generally Brigman, supra note 52, at 355.
Universal Declaration of Human Rights, G. A. Res. 217 A, U.N. GAOR, 3rd Sess., Supp. No. 51, at 73, UN Doct. A/810 (1948) [hereinafter UDHR.]
Frank Newman & David Weissbrodt, International Human Rights 320 (1990).
Id. A prepemptory norm is generally referred to as a "just cogens" norm. Jus cogens norms take precedence over conflicting rules and agreements and can only be modified by another norm of the same character. Restatement (Third) of the Foreign Relations Law of the United States 102 cmt. k (1987). see generally Anthony D'Amato, It's a Bird, It's a Plane, It's Jus Cogenal!, 6 Conn J. Int'l L. (1990) (discussing growing number of human rights being referred to as peremptory norms).
UDHR, supra note 297, at art. 5.
Romberg, supra note 1, at 247; see also Fleiss & Hodges, supra note 106, at 65-66.
It should be noted that Israel routinely circumcises newborn boys, but the procedure is for religious reasons.
"[M]odern international law recognizes that individuals may invoke domestic remedies for violations of certain fundamental norms of international human rights law… ." Newman & Weissbrodt, supra note 298, at 616-17. Note that the U.S. has not signed the CRC. Id. at Supp. 133 (1994). One letter to the editor, condemning a woman's dismissal of male circumcision in light of female circumcision, perfectly illustrates the hypocrisy that exists in American society: "For a nation that has become obsessed with child abuse, it is ironic that male children in the United States continue to be subjected to genital mutilation in the form of circumcision without a second thought. Any comparable form of child torture would generate howls of outrage." Kevin Miller, A Case of Selective Outrage, Wash. Post, Dec. 15, 1992, at A22.
Brigman, supra note 52, at 356.
As this comment was going to press, the Supreme Court sturck down the Religious Freedom Restoration Act of 1993 (RFRA). See Boerne v. Flores, No. 95s2074, 1997 U.S. LEXIS 4035 (June 25, 1997). The Court's decision will have broad effect on any constitutional analysis of a religious freedom challenge to the criminalization of male circumcision. This comment will only briefly address the effect that Boerne will have on such a challenge. See notes 344-47 and accompanying text.
Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (parents have a right to control the education of their children and the Fourteenth Amendment includes a right to bring up children."); May v. Anderson, 345 U.S. 528, 532 (1953) ("immediate right to the care, custody, management and companionship of … minor children" is a fundamental right.); Ginsberg v. New York, 390 U.S. 629, 639 (1968) ("[c]onstitutional interpretation has consistently recognized that the parents claim to authority in their own household to direct the rearing of children is basic in the structure of our society.") See generally James G. Dwyer, Parent's Religion and Children's Welfare: Debunking the Doctrine of Parent's Rights, 82 Cal. L. Rev. 1371 (1994); Layli Miller Bashin, Female Genital Mutilation in the United States: An Examination of Criminal and Asylum Law, 4 Am. U. J. Gender and L. 415, 429 (1996).
Griswold, 381 U.S. at 484.
Zablocki v. Redhail, 434 U.S. 374 (1978) (holding marriage a fundamental right).
Planned Parenthood v. Casey, 505 U.S. 833 (1992) (states may only restrict abortion so long as no "undue burden" is placed on a woman's right to choose).
Meyer, 262 U.S. 390 (state law cannot prohibit teaching foreign language to young children and that parents can control their children's education).
See Griswold, 381 U.S. at 483 (several of the guarantees within the Bill of Rights establish a penumbra in which "privacy is protected from government intrusion" and the right to privacy is a protected right that warrants strict scrutiny).
381 U.S. at 495 (Goldberg, J, concurring) quoting Poe v. Ullman, 367 U.S. 497, 551-552 (Harlan, J., dissenting)).
Wisconsin v. Yoder, 406 U.S. 205, 234 (1972)
410 U.S. 113, 153-54; Charles A. Bonner & Michael J. Kinane,Circumcision: The Legal and Constitutional Issues, Truth Seeker Supp. S1 (July/Aug. 1989).
Yoder, 406 U.S. at 234. In addition to the holdings of the above cited Supreme Court cases, the concept that the government needs to protect children is also repeated in such laws as custody, child abuse, and labor.
321 U.S. 158 (1944) (parents actions which are harmful to their children are subject to judicial and state intervention).
U.S. Const. amend. I. The Free Exercise clause of the First Amendment also applies to the states through the due process clause of the Fourteenth Amendment.
494 U.S. 872 (1990). The Smith decision announced a new approach to the Free Exercise Clause from that previously asserted in Sherbert v. Verner, 374 U.S. 398 (1963). In Sherbert, the Supreme Court set forth the "compelling state interest" test--asserting that before an infringement on religious liberty will be upheld, the government must demonstrate that it has a compelling interest. Id. "[I]t is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly constitutional area, `(o)nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.'" See Brigman, supra note 52, at 349-55.
Smith, 494 U.S. at 872.
Id. at 879 (quoting Minersville School Dist. Bd. of Educ. v Gobitis, 310 U.S. 586, 594-95 (1940)).
See infra notes 344-47 and accompanying text (discussing the Supreme Court's decision in Boerne, striking down the Religious Freedom Restoration Act of 1993, the legislature's response to Smith). See also Goldman v. Weinberg, 475 U.S. 503 (1986). In Goldman, the Supreme Court held that an orthodox Jewish Air Force Captain did not have a right to wear a yarmulke while on duty and in uniform. Although the prohibition caused the Captain to violate a religious tenet, the Court held that "the First Amendment does not require the military to accommodate such practices in the fact of its view that they would detract from the uniformity sought by the dress regulation." Id.
Keth Jaasma, The Religious Freedom Restoration Act: Responding to Smith; Reconsidering Reynolds, 16 Whittier L. Rev. 211, 225 (1995); Richard C. Reuben, Church and State Revisited, Religious Freedom Case Raises Important Underlying Federalism Question, 83 A.B.A. J. 38 (Mar. 1997); Richard Carelli & Laura Asseo, Justices Strike Down Religious Freedom Restoration Act, Leg. Intelligence, June 26, 1997, at 4.
Prabha Sipi Bhandari, The Failure of Equal Regard to Explain the Sherbet Quartet, 72 N.Y.U. L. Rev. 97,99 (1997).
Christopher L. Eisgruber & Laurence G. Sager, Why the Religious Freedom Act is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994).
Boerne, No. 95-2074, 1997 U.S. LEXIS 4035.
Bruce Fein, Year of Justice Scalia, Wash. Times, July 1 1997, at A15.
278 F. Supp. 488 (W.D. Wash. 1967), aff'd, 390 U.S. 598 (1968).
Jehovah's Witnesses, 390 U.S. 598.
Dwyer, supra note 313, at 1382.
Id. at 167. In Reynolds, bigamy was held to be a crime in federal territories over the Free Exercise objection of a Mormon who argued that polygamy was his religious duty. The Court saw the conduct as a "violation of social duties" and thus prohibitable. Id. at 164.
See, e.g. Board of Educ. v. Barnett, 319 U.S. 624 (1943) (striking down state statute requiring all students to stand in salute to the American flag in public schools as violation of Establishment and Free Exercise Clause of the First Amendment); Sherbert, 374 U.S. 398, 409-410 (requiring an employee to work on Saturday contrary to employee's religious belief does not foster establishment of religion).
Brigman, supra note 52, at 354-55.
Four elements that informed consent experts include in discussing the doctrine of informed consent are:
American Academy of Pediatrics, Comm. on Bioethics, Informed Consent, Parental Permission, and Assent in Pediatric Practice, 95 Pediatrics 314. (1995).(1) Provision of information: patients should have explanations, in understandable language, ... the existence and nature of risks ....(2) Assessment of the patient's understanding of the above information. (3) Assessment of the patient or surrogate to make the necessary decision(s). (4) Assurance, ... that the patient has the freedom to chose. ...
See, e.g. Pauscher v. Iowa Methodist Med. Ctr., 408 N.W2d 355 (Iowa 1987) (providing explanation of the informed consent doctrine); see also Phillips v. Hull, 516 So.2d 488 (Miss 1987) (whether patient gave informed consent for procedure or whether surgeon failed to inform); Stover v. Assoc of Thoracic & Cardiovascular Surgeons, 635 A.2d 1047. (Pa. Super. Ct. 1994); Bloskas v. Murray, 646 P.2d 907 (Colo. 1982); see generally Brigman supra 52, at 343-55 (discussing how constitutional issues should not prevent states from imposing child abuse statutes).
Pauscher, 408 N.W.2d at 355; see also Brigman, supra note 52, at 356.
Bonner & Kinane, supra note 324, at S3; Keeton et al., supra note 52, at 356.
Pauscher, 408 N.W.2d at 355; see also Brigman, supra note 52, at 356.
Id.; Keeton et al., supra note 362, 18, at 120 & n.66 (failure to disclose consequences basis for suit in negligence); 32, at 190.
Fleiss & Hodges, supra note 106, at 67.
Brigman, supra note 52, at 357.
Id.; see, e.g. Noe v. Kaiser Found. Hosp., 435 P.2d 306 (Or. 1967) (action made to recover for circumcision that was not consented to by parents.
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