Circumcision of Healthy Boys: Criminal Assault?

"Legal action is long overdue in Australia to protect the physical and sexual integrity of male minors."

"There is clear medical evidence of adverse effects from the pain, significant complications, and inevitable prejudice to genital function. There are no clearly demonstrable medical benefits."

PUBLISHED PAPER

Gregory J Boyle BSc (Hons), M Ed, MA, PhD (Melb and Delaware)

Professor of Psychology, Bond University, and Visiting Professor, Department of Psychiatry, University of Queensland

J Steven Svoboda BS (Hons), MA, JD (Hons) (Harv) Executive Director, Attorneys for the Rights of the Child, California

Christopher P Price MA (Oxon) Solicitor, Supreme Court of England and Wales; Hon Legal Adviser, National Organisation of Restoring Men (NORM), United Kingdom; Board Member, Attorneys for the Rights of the Child and

J Neville Turner LLB (Hons), BA* Barrister and Solicitor (Victoria); Solicitor (England); President, OzChild, Children Australia Inc

Correspondence to: Dr G J Boyle, School of Humanities and Social Sciences, Bond University, Gold Coast, Qld 4229, Australia.

--------------------------------------------------------------------------------

Although a number of Australian jurisdictions have acted to outlaw female genital cutting, equal protection under the law has not yet been afforded to unconsenting minors who happen to be boys.

In light of Marion's Case (Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218), it is now evident that parents cannot provide legal consent for an irreversible, non-therapeutic circumcision.

Moreover, there are no medical indications for neonatal circumcision (Australasian Association of Paediatric Surgeons, Guidelines for Circumcision (1996)).

Consequently, enforced or involuntary circumcision must now be considered as an assault causing grievous bodily harm (genital mutilation). Legal action is long overdue in Australia to protect the physical and sexual integrity of male minors.

Introduction

Genital cutting of females, called circumcision or female genital mutilation, has raised outcries of horror. Proscribed by statute in New South Wales and Victoria, it is also illegal under general laws in most other States and many other jurisdictions.1

Female genital mutilation constitutes a common law assault.2 Any doctor who performs female genital mutilation in Australia, even with parental consent, or the consent of the female herself, is liable to prosecution, either under the legislation that specifically prohibits it in certain jurisdictions, or under the general assault provisions in common law.

Yet, to date, destructive genital cutting of males, called circumcision or male genital mutilation, has escaped concerted censure. Despite a continuing reduction over recent years, thousands of healthy Australian baby boys are circumcised annually. Medicare figures for 1997-1998 reveal almost 20,000 fee-for-service circumcisions on boys, excluding public patients and those outside the medical system.3

While rare in Scandinavia and Europe, circumcision also is common in North America. United Kingdom circumcision rates declined dramatically once it was no longer covered by the National Health Service. The United States rate has declined from 90 to 60 per cent in recent years. In Australia, circumcision surgery is still imposed on approximately 10 to 15 per cent of healthy boys.

The general rule in English criminal law, and reflected in other common law jurisdictions, is that any application of force, no matter how slight, is prima facie an assault. Consent serves as a defence to assaults that do not inflict actual bodily harm. Exceptions to the general prohibition on assaults causing bodily harm include medical treatment. Lord Templeman's remark in the House of Lords case of R v Brown (involving consensual sado-masochism) that ritual circumcision is lawful4 is much cited by circumcision advocates.

Those who rely on Lord Templeman do not take adequate account of the difference between the ratio decidendi of a case and an obiter dictum. The English Law Commission did not cite Lord Templeman or any other case as authority. The legal effect of R v Brown and the English Law Commission's views has been analysed elsewhere.5

The Queensland Law Reform Commission, relying heavily on Department of Health and Community Services v JWB and SMB,6 noted:

``The circumcision procedure is invasive, irreversible and major. It involves the removal of an otherwise healthy organ part. It has serious attendant risks.''7

According to the Queensland Law Reform Commission: ``The common law operating in Queensland appears to be that if a young person is unable, through lack of maturity or other disability, to give effective consent to a proposed procedure and if the nature of the proposed treatment is invasive, irreversible and major surgery and for non-therapeutic purposes, then court approval is required...

The basis of this attitude is the respect ... [for] ... an individual's bodily integrity ... unless there are immediate health benefits to a particular child from circumcision, it is unlikely that the procedure itself could be considered as therapeutic.''8

Is infant circumcision advantageous?

A variety of claims as to lack of pain, minimal risk, absence of harm, no ill-effect on pleasure and/or function, and so-called benefits from routine circumcision are frequently made. However, the burden of proof of substantiating these claims lies on those who would pick up a knife to amputate normal, healthy and functional anatomy (``he who avers, proves''). The medical evidence is that the claims made by circumcision advocates are controverted by the facts.

Rationalisations for male genital cutting include claims about hygiene, prevention of genital cancers, urinary tract infections (UTIs), and of AIDS. However, overwhelming epidemiological evidence exists to the contrary. In its letter of 16 February 1996, representatives of the American Cancer Society stated unambiguously that circumcision should not be recommended for preventing penile or cervical cancer:

``The American Cancer Society does not consider routine circumcision to be a valid or effective measure to prevent such cancers... Research suggesting a pattern in the circumcision status of partners of women with cervical cancer is methodologically flawed, outdated, and has not been taken seriously in the medical community for decades... Penile cancer is an extremely rare condition, affecting one in 200,000 men... Perpetrating the mistaken belief that circumcision prevents cancer is inappropriate.''9

Furthermore, contrary to the claims of circumcision advocates, circumcision does not protect against sexually transmitted diseases such as AIDS. In fact, the United States has both the highest rate of routine circumcision and AIDS in the developed world.10 Moreover, UTIs occur in only 1 to 2 per cent of boys, and are conservatively treated with antibiotics. Phimosis, unless it is the result of balanitis xerotica obliterans, an extremely rare condition, cannot be diagnosed prior to puberty, and then is easily treated using cortisone ointment and gentle stretching.11

Circumcised men without the protection of a foreskin are at greater risk of many sexually transmitted diseases.12

Consequently, no national or international medical association in the modern industrialised world (including the American Academy of Pediatrics, the Australian Medical Association, the Australian College of Paediatrics, the Australasian Association of Paediatric Surgeons, the British Medical Association, or the Canadian Paediatric Society)13 endorses routine infant circumcision. In March 1999 the American Academy of Pediatrics concluded that ``the data are not sufficient to recommend routine neonatal circumcision''.

Nevertheless, the most recent American Academy of Pediatrics position statement on male genital mutilation failed to reflect the weight of the medical literature as to the harm of circumcision from complications and otherwise, including the damage to bodily and functional genital integrity.14 The statement also seriously misstated the thrust of articles such as that by ุster,15 and provided a misleading summary of purported benefits by inflating them.

Its suggestion that EMLA cream is an acceptable and effective local anaesthetic for infant circumcision disregarded the manufacturer's contraindications that it not be used on genital skin or mucosa, as well as studies showing that EMLA provides only minimal pain relief.16 Furthermore, the American Academy of Pediatrics statement provided no reasoned, or indeed any, argument for its assertion that ``it is legitimate for parents to take into account cultural, religious and ethnic traditions'', and thus to subject an infant to this amputation.

There is clear medical evidence of adverse effects from the pain, significant complications, and inevitable prejudice to genital function. There are no clearly demonstrable medical benefits.

Disadvantages of circumcision

snip -- snip -- Pull up webpage for the rest of the article --

http://www.cirp.org/library/legal/boyle1/