Our law permits religiously-motivated violence to infants
Posted by Dave Bath on 2009-06-03
Non-therapeutic male circumcision is discussed in a recent Australian Policy Online report.
Personally, I’d see non-therapeutic male circumcision in the same category as intimate or genital piercing, and covered by a section of the Summary Offences Amendment (Tattooing and Body Piercing) Bill 2008 (Vic) Division 6:
44(2): A body piercer must not perform body piercing on the genitalia, anal region, perineum or nipples of a person under the age of 18 years, whether or not consent has been given to the body piercing.
It’s worth noting that the Current Issues Brief No. 3, 2008 from the Research Service of the Victorian Parliament discusses the Victorian bill, and regulations in other Australian jurisdictions, the paper does not even contain the word circumcision.
The paper also notes circumstances covered by other bills:
- Causing injury or serious injury intentionally, recklessly or negligently, and endangerment offences under sections 16, 17, 18, 23 and 24 of the Crimes Act 1958; and
- Female genital mutilation under section 32 of the Crimes Act.
Some belief systems use the term "circumcision" when genital mutilation is the only realistic term. Why should the law be sexist?
In the "Purposes" of the bill, the stated intent includes prevention of scarification of those under 18, defined as follows:
scarification means the cutting of the skin of a person to create scar tissue;
Male circumcision, therapeutic or not, certainly creates scar tissue!
The 2008 bill gives reasonable protection for surgeons (presumably to cover therapeutic procedures):
43A (1) Nothing in this Division applies to body piercing performed in good faith—
- in the course of a regulated health service provided by a registered health practitioner; or
- in the course of clinical training by a registered student.
In the 2008 bill, it is explicitly stated that "regulated health service" has the same meaning as in the Health Professions Registration Act 2005 (Vic):
regulated health service means a health service usually provided in a regulated health profession
A religious activity is not a health service!
Section 44 makes no bones about intimate piercings of those under 18 – parental consent and/or the wishes of the child simply do not matter. It is an offence. Full stop.
Now I have no problem with a religiously-motivated circumcision of an adult. It’s their problem, and indeed, it’s good for rational society because there is the chance that a firm believer in any faith will not be able to procreate as the result of the circumcision.
Let’s look at the Judaic and Christian so-called logic in particular:
- A child cannot confirm their religious adherence until they are adolescents, notably 13 for Judaic males.
- Genital mutilation for religious reasons should surely require the informed consent of the subject as to both the religion and the process.
So, by their own logic, a non-reversible procedure carried out as part of religious adherence should not be carried out on pre-teens – parental consent or not.
It’s really no different from Munchausens By Proxy, although the perpetrators are not clinically insane, even though they are patently irrational (indeed belief with no rational inquiry is regarded as a virtue).
The paper published at the APO comes originally from the Tasmanian Law Reform Institute and includes the following (my bolding):
The Institute received the reference from the Commissioner for Children who is a member of the Council of Obstetric and Paediatric Mortality and Morbidity. The Commissioner asked the Institute to investigate the legal issues relating to the circumcision of males under the age of majority. The Commissioner was concerned that some procedures, when performed without medical indication and without the competent consent of the child, may traverse the rights of children.
Circumcision satisfies the legal definition of both wounding and assault.
Young children, infants in particular, may be unable to communicate consent and would almost certainly not be able to understand the nature of a circumcision procedure. Thus infants, and most young children, will not be able to provide consent that might make a circumcision lawful.
Section 2A(2)(e) of the Tasmanian Code provides that there is no free agreement when a person: "agrees or submits because he or she is overborne by the nature or position of another person."
No legislation in Tasmania provides a general power for parents to make legal, through their consent or authorisation, what would otherwise be an offence to their children.
Common law cases contain non-binding statements suggesting that a person who circumcises a child is not criminally responsible for the act if the child’s parents consented to, or authorised, the procedure. The basis for this proposition is uncertain.
Would non-therapeutic circumcision of the child of atheists be legal? Would a jury decide differently based on the religion position of one or both parents?
Where the paper cites arguments in favor of allowing circumcision without consent, those arguments are tortuous, and designed to satisfy the irrational beliefs of powerful religious groups.
It seems to me that any organization that promotes or even accepts the genital mutilation of infants is no better than a child pornography ring, and should be declared an illegal organization. Actually, there are more parallels with a child abuse network than a child pornography ring.
It also seems to me that prohibiting female "circumcision" while allowing the analogous procedure on a male infant without compelling therapeutic need, is merely enshrining sexism and religious apartheid in law.
It must stop.
- The ‘cruellist cut’ may also be illegal
- The other thing is that it could also come under federal laws against terrorist acts, which include "religiously motivated violence"