NORM-UK

Female circumcision 'was not persecution'

Pretoria News
June 16,2005

 

Bill makes circumcision an assault

Sheena Adams
June 16 2005 at 11:46AM

The Associated Press
Saturday, May 21, 2005

Influenced by infant's cries, man wants ban on circumcision

By JAMES WARDEN Associated Press Writer
BISMARCK, N.D.

Mervin Gajewski remembers hearing an infant's wails while he was having blood tests done in a Watford City hospital a few years ago.

"Somebody better help that baby. He sounds hurt," the 78-year-old Alexander man says he told a nurse.

"You would be, too, if you were being circumcised," she replied.

When a friend's daughter chose to circumcise her son last year, Gajewski decided to sue, in an attempt to get North Dakota courts to ban circumcision. A judge dismissed Gajewski's case last week, but he said he intends to continue, perhaps with an appeal to the North Dakota Supreme Court.

"I don't intend to be done with this case one way or another," he said.

Circumcision involves the removal of sensitive foreskin from the penis. The procedure is usually done on infants. Nationally, about 56 percent of male infants are circumcised, according to a 2003 survey compiled by the federal Centers for Disease Control and Prevention.

The Midwestern region, which includes North Dakota, had a 78 percent circumcision rate, which is the highest in the country, said CDC spokesman Bill Crews.

In a March 1999 policy statement, the American Academy of Pediatrics said there are "potential medical benefits" to circumcision, including a lessening of the risk of getting urinary tract infections. However, existing data "are not sufficient to recommend routine ... circumcision" of newborns, the statement says.

Gajewski says the reasons justifying the procedure are speculative, using the assumption that "somewhere down the line, it's going to be good for you."

"Surgery isn't done that way," he said. Gajewski believes male circumcision is tantamount to genital mutilation. The Legislature made female genital mutilation a felony crime in 1995. Gajewski's lawsuit argued that courts should extend the ban to boys.

Northwest District Judge Gerald Rustad dismissed the case last week, saying Gajewski had no standing to bring the case. Gajewski was suing on behalf of North Dakota boys younger than 18, but he is 78 years old, and does not represent any young boys, the judge said.

"Although the topic is one which could result in interesting information and analysis in the proper forum, this court has not been presented any precedent which would persuade it that (Gajewski) has standing to bring the action," Rustad wrote in his dismissal order.

North Dakota's state and federal courts have taken up the issue previously. Last September, the North Dakota Supreme Court ruled in favor of a Fargo doctor who had circumcised an infant in March 1997. The boy's mother argued she was not told in detail about the procedure's benefits and potential risks. The woman, Anita Flatt of Hawley, Minn., also had argued that North Dakota's law barring female genital mutilation did not offer equal protection to males.

The Supreme Court said Flatt did not have standing to make that argument.

In June 1996, a Bismarck woman, Donna Fishbeck, made similar equal-protection arguments in a federal lawsuit against the state. Fishbeck's infant son had been circumcised with the consent of the boy's father, even though she objected to the procedure. U.S. District Judge Patrick Conmy dismissed the case, ruling that Fishbeck did not have legal standing to bring the lawsuit. [???] A three-judge panel of the 8th U.S. Circuit Court of Appeals upheld Conmy's ruling in June 1997.

"Even if we were to declare the North Dakota statute invalid because it is underinclusive, and even if ... we could enter some kind of decree that would criminalize male circumcision, there is no assurance at all that the injury claimed by Fishbeck, either on her own behalf of on behalf of her son, would be redressed," the appeals court's decision says. [That could be said with equal truth of almost any law at all.]

Circumcision opponents say the foreskin protects the penis and can enhance sexual pleasure. Gajewski, who is not circumcised, said those benefits are being taken away without reason.

"It's unnecessary and detrimental to a male," he said. "You destroy too much potential."

SF Human Rights Commission slams unnecessary genital surgery

Intersex Report Released
Bay Area Reporter
May 5, 2005
by Zak Szymanski, assistant editor

In a groundbreaking report released this week, the San Francisco Human Rights Commission publicly called for an end to medically unnecessary interventions on intersex children and revealed that nonconsensual genital surgeries on children are more common in the Bay Area than previous testimony revealed.

The May 3 report -- entitled "A Human Rights Investigation into the Medical 'Normalization' of Intersex People" -- is the result of two years of investigation, including a public hearing held last year attended by activists, advocates, and members of the medical community. This is the first time that a governmental entity in the United States has addressed intersex issues from a human rights perspective.

The HRC report noted that these surgeries are motivated by parents' and doctors' needs to assign a gender to a child -- one that is in line with arbitrarily defined gender conformity -- which very well may be at odds with how the child will come to live or identify.

"These treatments are not performed for the treatment of illness or to alleviate pain. Instead, these surgeries are irreversible, often causing disruption of bodily functions, pain, and the need for additional surgeries," said a statement released by the HRC. "The Commission found that 'normalizing' interventions are medically unnecessary, are not medical or social emergencies, and that such interventions performed without the patient's informed consent are inherently human rights abuses."

Specifically, HRC recommendations include never performing "normalizing" interventions in infancy or childhood, and only performing medically unnecessary procedures when a patient gives legal consent.

Activists told the Commission that intersex interventions are usually informed by homophobia, as the success of treatments is often measured by a child's ability to have heterosexual intercourse in the future. In the case of hypospadias, society dictates that a male cannot be expected to sit to urinate, resulting in surgical interventions based upon sex stereotypes. Such interventions are not without risk, considering the small size of the genitals receiving surgery. The intersex movement advocates that people be able to decide for themselves, without shame, what to do with their own bodies, and the report from the HRC agrees.

Dr. Lawrence Baskin of the Department of Urology of the University of California, San Francisco, (UCSF) wrote to the Commission to dismiss the testimony from intersex activists who said they were unhappy with the gender-normalizing interventions they received as children. "Of these 10 testimonies, it is quite clear that nine of these individuals have had severe emotional problems secondary to their status as intersex patients," he wrote.

Intersex activists have long pointed to such comments as examples of the obstacles they face when advocating for their rights. But ISNA Executive Director Cheryl Chase noted that the fact that a government's human rights commission has recognized the issue should be the beginning of the end to such dismissals.

HRC investigator Marcus Arana said that despite Baskin's displeasure with the HRC report, UCSF has responded separately and positively, designing a task force to address the issue and inviting input from the community.

Link to the HRC report (110pp, 929KB pdf file)

VHS tapes or DVDs of the May 27, 2004, intersex public hearing are available online at http://sunset.ci.sf.ca.us/sfgtv.nsf

[Bay Area Reporter volume 35, number 18, 5 May 2005]

[This raises the question: If medically unnecessary surgical interventions are inherently human rights abuses when performed on children with "abnormal" genitals, what makes circumcision of a "normal" child acceptable? ]

The Scotsman
Tuesday, May 3, 2005

Muslim Accused of Assaulting Son Through Circumcision

By James Tapsfield, PA

A Muslim “assaulted” his five-year-old son by having him circumcised against his mother’s wishes, a court heard today.

April 14, 2005

Idaho cuts Medicaid funding for circumcision

Yesterday Governor Kempthorne signed the bill (House Bill No. 385) that ends Medicaid funding of non-therapeutic circumcision in Idaho. The provision becomes effective on July 1, 2005.

Medicaid, the health insurance programme for the poor, covers 25% of the births in the state.

The section of the bill that ends Medicaid funding is:

Morocco Times
April 13, 2005

Fez to celebrate Crown Prince Moulay El Hassan circumcision

Fez, the Idrissid city, dressed in festivity attire, is ready to celebrate, as of today Wednesday and for three joyful days, the ceremonies of the circumcision of the two-year old Crown Prince Moulay El Hassan.

Adorned in the most splendid finery ever, and ornamented by all forms of beatitude and bliss that reign all over the eleven-century old city, Fez expresses its happiness to share with the royal family these memorial days.

The populations of the imperial city, and those of adjacent regions flooded in masses towards the emblazoned squares and parks of Fez where musical bands of the four corners of kingdom will be performing popular music genres of Ahidous, A•ssaoua, Hmadcha, Gnaoua, Ahouach, Abidat Rma, Taqtouqa Jabalia and Guedra, and where horsemen from all over the country joined the city to perform, on ornamented horses the famous Moroccan fantasia.

Though circumcision, removal of the prepuce, is primarily a tradition of Moslems and Jews, it has gained universal practice. In the United States of America more than one million male infants are circumcised each year.

In Morocco, this "operation" was until some decades ago an exclusivity of the barber, who, on appointment, would come to the house of the family, armed with his scissors, and his many archaic utensils. Today, the barber is gradually loosing ground to the physician or male nurses well specialized in the matter.

After the performance of the "surgery," [quotation marks in the original] the young boy, center and source of happiness for the whole family, is then dressed in "miniaturized" groom attire, with white "djellaba," white long-sleeved shirt, white traditional trousers, and red or green Fez.

In many families, it is the grandparents who take care of the event. They would make all the necessary preparations, take the young boy, without his father's knowledge, to the barber's or the physician to get circumcised. This old custom is still largely prevailing in many regions.

Some families would hire a horse to take the circumcised young boy on a ride in the neighborhood, amid zaghroudas, cheers and clapping of family, friends and neighbors.

According to scientific findings, circumcision can spare men a number of diseases that they might attract.

iol online

Regina v K

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There have been queries about interpreting statutes, burdens on prosecution and defendant and the like recently. Below is a case which has a look at these sorts of things, and may give some insight into the minds of the Courts. It is from today's Times Law Report. As ever if not interested please ignore. Regina v K Before Lord Justice Roch, Mr Justice Rougier and Mr Justice Gray Judgment October 31, 2000 Where a defendant was charged under section 14 of the Sexual Offences Act 1956 with indecent assault of a girl under the age of 16 there was no requirement that the prosecution prove that the defendant at the time of the incident did not honestly believe that the complainant was 16 or over. The Court of Appeal, Criminal Division, so held in a reserved judgment allowing an interlocutory appeal by the prosecution under section 35 of the Criminal Procedure and Investigations Act 1996 against a judge's ruling at a preliminary hearing in the crown court that the prosecution had to prove the absence of genuine belief that the complainant was aged 16 or over. Section 14 of the Sexual Offences Act 1956 provides: "(1) It is an offence, subject to the exception mentioned in sub-section (3) of this section, for a person to make an indecent assault on a woman. "(2) A girl under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of this section. "(3) Where a marriage is invalid under section 2 of the Marriage Act 1949, or section 1 of the Age of Marriage Act 1929 (the wife being a girl under the age of 16), the invalidity does not make the husband guilty of any offence under this section by reason of her incapacity to consent while under that age, if he believes her to be his wife and has reasonable cause for the belief. "(4) A woman who is a defective cannot in law give any consent which would prevent an act being an assault for the purposes of this section but a person is only to be treated as guilty of an indecent assault of a defective by reason of that incapacity to consent if that person knew or had reason to suspect her to be a defective." Mr Anthony Scrivener, QC and Mr Anthony Heaton-Armstrong for the Crown; Mr David Fisher, QC and Miss Irena Ray-Crosby for the defendant. LORD JUSTICE ROCH, giving the judgment of the court, said that the complaint in this case, made by a schoolgirl aged 14, was that she was indecently assaulted by K touching her private parts without her consent. K's case was that the girl told him she was 16 and he had no reason to disbelieve her. She consented to all the sexual activity which occurred between them. At a preliminary hearing on the question whether the prosecution had the burden of proving the absence of genuine belief that the girl was 16 or over, the judge reminded himself of the decision of the Court of Criminal Appeal in R v Maughan ((1934) 24 Cr App R 130), where it was held that the predecessor of section 14 of the 1956 Act did not permit a defence of honest but mistaken belief that the girl was over 16. He went on to observe that the House of Lords in B (a Minor) v Director of Public Prosecutions ((2000) 2 WLR 452) confirmed what he thought was settled law, namely that when it was a question of a mistake of fact, the belief need only be genuine, it did not have to be reasonable. The judge expressed the view that because the House of Lords in B overruled the decision of the Court of Criminal Appeal in R v Prince ((1875) LR 2 CCR 154), their Lordships had implicitly overruled the decision in Maughan. Mr Scrivener accepted that the case of B had established that the presumption that mens rea was an ingredient of an offence meant that, where the presumption applied, a defendant was not guilty if he held an honest belief that the facts were such that no offence had been committed. He further accepted that the case established that the presumption applied to all statutory offences unless Parliament had excluded it expressly or by necessary implication. Mr Scrivener conceded that section 14 did not in express terms exclude the presumption but argued that by the way in which it was drafted Parliament had excluded the presumption by necessary implication. The House of Lords in B were careful not to overrule R v Forde ((1923) 2 KB 400), R v Keech ((1929) 21 Cr App R 125) and R v Maughan when it came to the interpretation of section 14 of the 1956 Act. Mr Fisher argued that the authorities on which Mr Scrivener relied were old and were decided before the passing of the 1956 Act. In the light of the House of Lords decision in B those authorities should not longer be considered good law. In addition he submitted that to read section 14 as an example of Parliament implicitly overruling the presumption would be contrary to article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms because it would in part destroy the presumption of innocence and allow the prosecution to obtain a conviction where the prosecution were not able to prove all the ingredients of the offence. In their Lordships' judgment Parliament, in the 1956 Act, did exclude any defence of genuine belief that the girl was over 16 to a charge of indecent assault on a girl under the age of 16. That had to follow from the terms of section 14 themselves. First, subsection (2) provided that in the case of a girl under the age of 16, however willing a participant she might have been in sexual activity between herself and the defendant, her consent could not stop that activity being an indecent assault upon her. Subsections (3) and (4) of section 14 did provide defences based on genuine belief, albeit that under subsection (3) the prosecution could defeat the defence by establishing that there was no reasonable cause for the belief. If Parliament had intended that genuine belief should be a defence to the offence created by section 14(1) it would have been unnecessary to enact subsections 3 and 4. It followed, in their lordships' judgment, that Parliament had excluded such a defence by necessary implication. The speeches of their Lordships in B had been read with care to see if the decision in that case allowed of a different conclusion. Lord Steyn there pointed out that the scope of section 14 and 15 was markedly narrower than section 1(1) of the Indecency with Children Act 1960 with which that case was concerned. Sections 14 and 15 required the Crown to prove an assault which necessarily required an intentional act and to that extent at least mens rea was an ingredient which the prosecution had to prove. The reading of section 14 which their Lordships considered to be correct was not, in their judgment, incompatible with article 6(2) of the Convention. The European Court of Human Rights in Salabiaku v France ((1988) 13 EHRR 379 paragraph 28) obseerved: "Article 6.2 does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence." Parliament, in 1956, considered that the balance between the demands of the general interests of the community and the protection of the fundamental rights of the individual required that girls under the age of 16 should be protected by making it an offence for a person to touch them in circumstances which were indecent. The rights of the defence were maintained in that it was still for the prosecution to prove that the complainant was under 16 years of age and that there had been a deliberate touching of that girl by the defendant in circumstances which made the touching indecent. Their Lordships did not consider that by providing that the balance should be struck at that point Parliament was being unfair or unreasonable, although they expressed the hope that Parliament might look again at this area of the law relating to sexual offences. The appeal would be allowed. Solicitors: Crown Prosecution Service. Donald Ramsbottom LL.B, BA (Hons). RAMSBOTTOM & Co. Solicitors Internet Law & Global Cryptology Law Specialists 5 Seagrove Avenue, Hayling Island, Hants, PO11 9EU, England. Tel (44) (023) 9246 5931 Fax (44) (023)9246 8349 Ramsbottom & Co is regulated by the Law Society in the conduct of investment business Service by Fax or E-Mail NOT Accepted