The strategy of banning sexual mutilation
jean-christophe Lurenbaum
jean-christophe Lurenbaum
I have a legal question. There are plans in Europe to prohibit non-medical male circumcision before an age limit (Iceland, Denmark, Finland...).
But isn't there a legal problem because of the discrimination that such projects would introduce between female and male sexual mutilation? Indeed, female sexual mutilation is often prohibited regardless of age (this is the case in French legislation for example, and I suppose it is the same in other countries in Europe). National laws allowing non-medical male circumcision above a certain age would be discriminatory in relation to FGM and could therefore be challenged before the European Court of Human Rights or the Court of Justice of the European Union.
It could be argued that there would be no discrimination if male circumcision is performed on religious grounds, in the name of freedom of religion. However, this objection comes up against two arguments:
On the one hand, a distinction should be made in the bills between male circumcision for religious reasons (which would be legal from a certain age limit) and male circumcision for non-religious cultural reasons (a very frequent case in Africa): do the current drafts in Finland and Denmark make this difference?
On the other hand and most importantly, female circumcision can be practiced for religious reasons, especially in Islam. However, this practice is forbidden regardless of age in countries such as France, despite the right to freedom of religion.
On the religious motivation of female circumcision, see for example Brian Earp who has written several articles on the subject, or other authors:
- ‘Unconstitutional’ US anti-FGM law exposes hypocrisy in child protection, Brian D Earp, 2019: Consider the case that prompted the federal ruling. It concerned a small Muslim sect called the Dawoodi Bohra. The Bohra practice what they call “khatna” – an Arabic word for circumcision – on girls and boys within their community.
- “Female Genital Cutting (FGC), Islam and the West” [Seminar Paper PDF], Alex Myers, 2015: The first part of the paper concerned the relationship between FGC and Islam. The writer argues that although FGC predates Islam and is not exclusively practiced by Muslims, it is deeply rooted in this religion. The second part of the paper is a case study of two majority-Muslim, Middle Eastern groups among whom the practice is still very common, Egyptian Arabs and Kurds.
A scenario for the future would not be to abandon plans to ban male circumcision before an age limit, but that the current ban on FGM at any age should be the subject of public debate, to see whether it would be desirable to allow women to dispose of their bodies, as the project in Denmark plans to do, allowing non-medical male circumcision from the age of 18.
Here we see that it is difficult to have a strategy for male circumcision that does not take into account the context of female circumcision, and vice versa. The international coalition is perhaps the only place that currently exists for FGM and male circumcision organisations to successfully engage in a debate on these complex issues.
Steven Barendregt
Steven Barendregt
Steven Barendregt
Guy Sinden
Steven Barendregt
Guy Sinden
Steven Barendregt
Johan Nyman
dallieresophie
jean-christophe Lurenbaum
- Does a woman have the right to carry out her own "excision", either by using a third party surgeon or even by operating herself? According to the Criminal Code alone, chapter 21 s5+s6, this seems possible (because there is no "assault"). If so, is it possible at any age or is there an age limit?
- Does a woman have the right to have "cosmetic surgery" on her sexual organs (labiaplasty for example)? If so, is this possible at any age or is there an age limit?
- against "genital autonomy", i.e. the right to modify one's sexual organs without medical reason (but with full consent)
- for "genital autonomy", i.e. the right to be able to circumcise oneself (male or female), but with an age limit. If so, what is the age limit?
Johan Nyman
Thank you Jean-Christophe for your follow-up question to my answer.
While there are some matters within ICASM/The Bodyguards that keep being unanswered and difficult for me to grasp at the moment, this particular line of dialogue is straightforward, which I highly appreciate.
Thus, I shall do what I can to answer your questions. To give you a qualified answer to the first one, I will need to consult an expert within law, given that I am merely a layman myself.
I will get back,
Best regards,
Johan
Simon ten Kate
The Netherlands regards FGM as a form of child abuse. Anyone who performs FGM or cooperates with the circumcision of a girl is punishable and can be prosecuted. That hardly ever happens. There was one criminal case in the Netherlands in 2009, but the suspect was acquitted for lack of evidence.
jean-christophe Lurenbaum
Very interesting, thank you Simon for these explanations. One might think that the legal situation on FGM is clear all over the world, given the institutional communication that has existed for decades, but even in the Netherlands this is far from being the case:
“Women can chose to have a labiaplasty from the age of 16 if they suffer from what they have”: note that the criterion of "suffering" is used.
“If it is be possible for an adult woman to have her genitals mutilated [] without prosecution of the the person who performs it, is not clear”: is there a clear legal difference between "labiaplasty" and "modification of a sexual organ carried out on an individual with their free and informed consent, even without medical necessity"? In other words, would "labiaplasty", which can be obtained from the age of 16, allow such a girl to obtain a genuine "excision" or any other traditional practice of modifying sexual organs?
It should be noted that it is the age of 12 that is mentioned in this interview reported by Simon a few weeks ago, in apparent contradiction with the age of 16, which would mean that there is a derogatory law for "labiaplasty": Meerderheid kinderurologen tegen jongensbesnijdenis (English subtitles), 2018, 11’ - Tom de Jong, pediatric urologist, 8’45 “The vast majority of Dutch paediatric urologists thinks you shouldn’t circumcise children under 12 years of age if there is no good medical reason. [] We think that a child should be able to decide about alterations on his own body. And in the Netherlands we have a law that says you can do that when you are over 12 years of age.”
We know that French-speaking organisations fighting against FGM in France and Belgium (the 2 GAMS, and perhaps in Germany) are very annoyed by the fact that:
FGM are forbidden whatever the age of the woman
but that "cosmetic surgery of the genital organs" is admitted even under 18 years of age, which contradicts the law banning FGM and allows it to be circumvented. As far as male circumcision is concerned, this is a problem that we must anticipate in order to prevent it from happening. Probably a common solution will have to be found for FGM and male circumcision to avoid the objection of gender discrimination. Moreover, this double standard between "FGM" and "cosmetic surgery" leads to a growing criticism of the fight against FGM, which its said to be a "neo-colonialist" approach.
Same question than for Intakt Norden, what is Intact Nederland's position on "genital autonomy":
against "genital autonomy", i.e. the right to modify one's sexual organs without medical reason (but with full consent)
for "genital autonomy", i.e. the right to be able to circumcise oneself (male or female), but with an age limit. If so, what is the age limit?
jean-christophe Lurenbaum
Until we have a clearer picture of the situation in Finland concerning "female circumcision" / "cosmetic surgery of the sexual organs" (age limit or not), here is the situation in France.
In 1983, the Court of Cassation recognised the criminal nature of sexual mutilation, ruling that the removal of the clitoris was indeed mutilation within the meaning of the French Criminal Code, which means that excision is prohibited regardless of age. There is no specific provision condemning excision, which falls under Article 222 of the Criminal Code relating to voluntary violence. Since that time, France has been one of the most active countries in Europe in terms of trials and convictions of FGM.
Lawyer Linda Weil-Curiel is famous for having been one of the first to campaign against the practice of excision in France and to obtain the criminal conviction of excisers and parents. This "star" of the FGM happens to be the first person to become a "public supporter" of Droit au Corps when the collective was created. Not only is she a facilitator at the Commission for the Abolition of Sexual Mutilation (in fact about FGM only), but she is also the general secretary of the Ligue du Droit International des Femmes (International Women's Law League), created in 1983 by feminist superstar Simone de Beauvoir. This shows that it is quite possible to collaborate between the cause and leading feminists fighting against FGM, provided that the approach is respectful of feminism.
On the other hand, "cosmetic surgery of the sexual organs" is possible. The case of Canada is interesting since we are in a culture similar to the European culture. In the case of “Female Genital Cosmetic Surgery” (FGSC), Canadian courts have rejected the notion of “age of majority” to define the age at which a person is able to give consent: “The Common Law recognizes the mature minor as a person who is able to understand the nature and consequences of the proposed treatment. When a minor is considered “mature”, parental consent is not required for FGSC interventions.”
Droit au Corps' position is the right to “genital autonomy”, BUT in the context of a public debate on "the conditions of consent". It is important to note that this public debate could very well lead to the conclusion that "the conditions of consent are never met" for certain practices, and that female or male circumcision (or cosmetic surgery of the sexual organs) would never be allowed, for example if it were recognised that social pressure is always too strong and suffering is likely to occur. This principled limitation on the right to dispose of one's body is accepted by DaC, which explains why in footnote 6 of its Vision, as is the case in some countries for prostitution or street drugs.Simon ten Kate
dorthethrige
Intact Denmark did foresee that this quesiton about inequality/discrimination could come up and be used against us. Some years ago Intact Denmark therefore asked the Danish Parliament if there were any (inequality) issues with our proposal. We received a formal written answer confirming that there are no inequality issues associated with our 18 year age limit proposal.
Religious rights are INDIVIDUAL rights. An individual has NO RIGHTS to exercise his/her own religious belief/rights on anybody else's body, but your own. This include their own children! Do also remember that human rights are above religious rights.