By : Some people assert that male genital mutilation, aka circumcision, is actually already illegal under the law (at least, in the UK). This article examines that claim and then considers best strategy for combating MGM. See Gary Costanza’s article for an analysis in the context of US law.
In the common law systems found in most Anglophone countries (notably the UK and the US), as opposed to Napoleonic and Roman civil law systems, everything is permitted except that which is expressly prohibited by statute and case law. We must therefore begin with the assumption that MGM is legal until we can prove that it is not.
This turns out to be a fairly high bar because it is a basic doctrine of common-law jurisprudence that you cannot draw any conclusions about the legality of a thing from any one statute alone. Some statutes (ie, primary legislation, acts of Parliament) provide for exceptions or conditions to other statutes; then there is secondary legislation (essentially, regulations with force of law written by the civil service or other parts of the executive, under the authority of Parliament); and finally there is case law.
In some circumstances, judges can (and do) strike down laws where two pieces of legislation appear to conflict, or where a piece of legislation is unlawful under the Constitution. (Yes, the UK does have a Constitution, it’s just not a written one.)
Although Parliamentary sovereignty means that statute trumps precedent (ie case law) in the event of conflict, for all practical purposes the only thing that counts is the effect of law and that is pretty much down to the judiciary, the enforcement branch of government. If the courts refuse to enforce a law, or if authorities refuse to try a matter before the courts, the law is effectively voided as surely as if it were nullified by a jury.
As a corollary from all of the above, nothing is actually illegal until a court affirms that it is illegal by finding against the defendant in an actual case. Statute, therefore, might be seen as more a guide to the consequences ofcertain actions.
The upshot is that you can’t definitively say that something is illegal unless you can point to case law that shows that it is. But even then, under the conventions of stare decisis (case law precedent) whether the decision is binding on other courts depends on which court made the decision and the nature of how the decision was rendered.
I reached out to Inside Man‘s editorial team to inquire as to why. In short, their policy is to curate a representative sample of the comments relevant to the article, and their comment sections aren’t intended for discussion. Their actual response:
As a result, I’m reproducing Mr Newman’s comments here, and I hope Mr Newman finds this post so he can continue the debate, if he wishes. To Inside Man‘s article Prime Minister and Government become first to endorse International Men’s Day, Lawrence Newman posted the following comment:
Citation of one statute does not always demonstrate that something is illegal because other legislation can grant specific exceptions. Common-law jurisprudence is just not that simple. For example, law grants latitude on certain matters to parents and legal guardians that are not available to others, eg corporal punishment (ie, a light smack on the bum).
If a stranger smacks a child, that’s culpable assault, but parents are not guilty of a crime when they physically chastise their child provided it’s proportionate and reasonable (as opposed to capricious abuse).
Likewise, if a random stranger circumcises (or causes to be circumcised) a child, that’d be assault, but parents can authorise medical procedures on their children without the consent of the child in the same way that next-of-kin have the legal right to make medical decisions in matters of end-of-life care.
I’m not aware of any requirement that such medical procedures be ‘medically necessary’ but even if there were, the term is poorly defined. Necessary for what? Without a heart transplant the child dies, okay, that’s easy. Parents have been imprisoned for failing to provide the ‘necessities of life’ by seeking medical treatment where their negligence results in the death of their children, even when their ‘negligence’ arose from religious conviction (so religion is not an omnipotent trump card).
What about the obese child as a candidate for a gastric band? They won’t die without it and the same clinical ends could be achieved by non-medical interventions such as diet and exercise (however miserable that’d make everyone involved). Note, I’m not commenting on the merits of either intervention.
However, if ‘medical necessity’ is determined by likelihood of fatality without treatment, then a gastric band would be assault even though the child might benefit from it. And if parents can authorise elective surgeries such as a gastric band, then on what basis in current law can one say that a parent cannot authorise male circumcision as an elective surgery?
Just my opinion, but I don’t think this “MGM is illegal” line of argument is very helpful because if MGM is, indeed, illegal, it follows that Parliament need not act — and yet there is no way to force the DPP to prosecute such cases.
It is better to admit that MGM is currently legal and apply pressure to MPs directly to enact a male equivalent to the 1985 Act.
Lawrence Newman’s reply, a combination of two comments:
First, on the contrary, circumcision is indicated for some cases of phimosis as a treatment of last resort, particularly in cases of balanitis xerotica obliterans — although Dewan does note that phimosis is overdiagnosed, possibly as a means of simplifying referral, and the inclusion of cases for which steriod cream is sufficient may muddy the waters in that regard. Though valid cases rare and by far the exception, one cannot reasonably say that circumcision is never medically indicated.
Though, on the face of it, amputation of a limb is analogous to amputation of the foreskin, it’s a false equivalence because one necessarily results in permanent reduction of function, where the other only results in dysfunction when the surgery is botched. Mr Newman’s argument that it follows that if MGM is legal, then so must be arbitrary amputations is therefore invalid.
That’s not to excuse or justify MGM — note that I call it mutilation, not circumcision, so my views on the subject should be clear — but, in pure clinical terms, MGM is closer to an elective cosmetic surgery for aesthetic (or other) effect. Of course the foreskin “never [routinely] needs to be cut off”. That’s what ‘elective’ means.
As such, circumcision along with liposuction, rhinoplasty and a host of other procedures that carry risks regardless of how skillfully executed (risks greatly amplified when carried out by unqualified surgeons) and which require drugs available only to qualified doctors are, by any reasonable definition, medical procedures — and the attempt to redefine MGM otherwise is a semantic argument and therefore pretty weak. Nor should it be a necessary one if, as Mr Newman and others insist, MGM is, in fact, already illegal.
It’s also worth pointing out that proponents of MGM do actually have some arguments in their favour, and also that that is not the same as accepting them as persuasive, or that their evidence outweighs the evidence against the practice.
Even the most eminent of legal opinions, including that of the Attorney General himself and Blackstone’s seminal Commentaries, remains merely an opinion until the opinion is tested in court — although the public, including the judiciary, are more likely to note the AG’s opinion than any other lawyer (including that of a QC).
Ultimately, it doesn’t much matter what you call it or how you characterise it, MGM will continue until stopped, and there are only two ways to stop it: a binding UK Supreme Court decision against it — though there is no guarantee a Supreme Court challenge would go the way we’d like — or primary legislation.
The objective of lobbying is persuasion, and that will not be accomplished by bashing the public and MPs over the head with what they regard to be a dubious claim (even if the claim is, in fact, right).
If anything, it’s counter-productive because if MGM is already illegal then, as I said, Parliament and MPs have a ready-made excuse to do nothing and there is no way to force the DPP to prosecute such cases.
To my mind, a much more persuasive argument is one based on consent. While parental rights and obligations include making medical decisions for their children, there is good reason to proscribe permanent, elective cosmetic surgery (ie, operations that are not medically indicated) on minors just as the Tattooing of Minors Act (1969) prohibits tattooing of children who, after all, will eventually become adults and come into possession of agency and may disagree with their parents’ decision.
David King is a senior executive at A Voice for Men, is the manager of server operations and is responsible for the care and feeding of the machines that bring you A Voice for Men.
Pragmatism and basic legal principles
In the common law systems found in most Anglophone countries (notably the UK and the US), as opposed to Napoleonic and Roman civil law systems, everything is permitted except that which is expressly prohibited by statute and case law. We must therefore begin with the assumption that MGM is legal until we can prove that it is not.
This turns out to be a fairly high bar because it is a basic doctrine of common-law jurisprudence that you cannot draw any conclusions about the legality of a thing from any one statute alone. Some statutes (ie, primary legislation, acts of Parliament) provide for exceptions or conditions to other statutes; then there is secondary legislation (essentially, regulations with force of law written by the civil service or other parts of the executive, under the authority of Parliament); and finally there is case law.
In some circumstances, judges can (and do) strike down laws where two pieces of legislation appear to conflict, or where a piece of legislation is unlawful under the Constitution. (Yes, the UK does have a Constitution, it’s just not a written one.)
Although Parliamentary sovereignty means that statute trumps precedent (ie case law) in the event of conflict, for all practical purposes the only thing that counts is the effect of law and that is pretty much down to the judiciary, the enforcement branch of government. If the courts refuse to enforce a law, or if authorities refuse to try a matter before the courts, the law is effectively voided as surely as if it were nullified by a jury.
As a corollary from all of the above, nothing is actually illegal until a court affirms that it is illegal by finding against the defendant in an actual case. Statute, therefore, might be seen as more a guide to the consequences ofcertain actions.
The upshot is that you can’t definitively say that something is illegal unless you can point to case law that shows that it is. But even then, under the conventions of stare decisis (case law precedent) whether the decision is binding on other courts depends on which court made the decision and the nature of how the decision was rendered.
A conversation with one individual
This article was inspired by an exchange I had with one Lawrence Newman over on an Inside Man article, but both our comments were deleted.I reached out to Inside Man‘s editorial team to inquire as to why. In short, their policy is to curate a representative sample of the comments relevant to the article, and their comment sections aren’t intended for discussion. Their actual response:
From time to time we receive a large volume of comments on an article that don’t representative [sic] of a diverse range of viewpoints. When this happens we respond in the same way that the mainstream media have always responded to readers letters, i.e. we publish a small number of comments and don’t publish the rest.That’s perfectly fair enough. It’s their site, and I respect their right to set policy just as we insist on our right to set policy at AVfM.
This in no way represents us taking a particular viewpoint for or against any of the individual comments that are either published or unpublished. As with every other reader, you are very welcome to submit comments in future and we do not guarantee they will be published.
As a result, I’m reproducing Mr Newman’s comments here, and I hope Mr Newman finds this post so he can continue the debate, if he wishes. To Inside Man‘s article Prime Minister and Government become first to endorse International Men’s Day, Lawrence Newman posted the following comment:
“Male victims of violence, including sexual violence”My reply:
And yet this government, like every one before it, sits back and ignores the fact male kids up and down the country are genitally mutilated and sexually suppressed on the NHS as well as in private healthcare, even though “circumcision” (nice euphemism) is ILLEGAL under the Offences Against the Person Act 1861 and would need a parliamentary override to make legal. Yet it brought in new legislation making FGM illegal recently, despite FGM already being illegal. Females matter but males do not. Words mean nothing.
is ILLEGAL under the Offences Against the Person Act 1861 and would need a parliamentary override to make legal. Yet it brought in new legislation making FGM illegal recently, despite FGM already being illegal.Parliament didn’t need to pass the Prohibition of Female Circumcision Act (1985) — 31 years ago is hardly recent, BTW — to outlaw FGM if it were already unambiguously illegal. If it were, the executive (Cabinet via Whitehall) could have [with much greater ease] acted under Royal Prerogative to direct the DPP to begin prosecuting under existing law. Instead, either it wasn’t actually illegal or it wasn’t sufficiently clear that it was illegal, which prompted Parliament to pass the PFCA to clarify.
Citation of one statute does not always demonstrate that something is illegal because other legislation can grant specific exceptions. Common-law jurisprudence is just not that simple. For example, law grants latitude on certain matters to parents and legal guardians that are not available to others, eg corporal punishment (ie, a light smack on the bum).
If a stranger smacks a child, that’s culpable assault, but parents are not guilty of a crime when they physically chastise their child provided it’s proportionate and reasonable (as opposed to capricious abuse).
Likewise, if a random stranger circumcises (or causes to be circumcised) a child, that’d be assault, but parents can authorise medical procedures on their children without the consent of the child in the same way that next-of-kin have the legal right to make medical decisions in matters of end-of-life care.
I’m not aware of any requirement that such medical procedures be ‘medically necessary’ but even if there were, the term is poorly defined. Necessary for what? Without a heart transplant the child dies, okay, that’s easy. Parents have been imprisoned for failing to provide the ‘necessities of life’ by seeking medical treatment where their negligence results in the death of their children, even when their ‘negligence’ arose from religious conviction (so religion is not an omnipotent trump card).
What about the obese child as a candidate for a gastric band? They won’t die without it and the same clinical ends could be achieved by non-medical interventions such as diet and exercise (however miserable that’d make everyone involved). Note, I’m not commenting on the merits of either intervention.
However, if ‘medical necessity’ is determined by likelihood of fatality without treatment, then a gastric band would be assault even though the child might benefit from it. And if parents can authorise elective surgeries such as a gastric band, then on what basis in current law can one say that a parent cannot authorise male circumcision as an elective surgery?
Just my opinion, but I don’t think this “MGM is illegal” line of argument is very helpful because if MGM is, indeed, illegal, it follows that Parliament need not act — and yet there is no way to force the DPP to prosecute such cases.
It is better to admit that MGM is currently legal and apply pressure to MPs directly to enact a male equivalent to the 1985 Act.
Lawrence Newman’s reply, a combination of two comments:
Had this conversation not been terminated by Inside Man, my response would have been along the following lines:I’m not aware of any requirement that such medical procedures be ‘medically necessary’ but even if there were, the term is poorly defined. Necessary for what?Then you must believe any parent can’t amputate any part of their child’s body, male or female, as long as it doesn’t kill them. You can’t pick and choose. Cutting off a kid’s finger is illegal. Therefore cutting off their foreskin is illegal.
The problem you’re having with this is you’ve been brainwashed into believing circumcision is a medical procedure. It’s not. It’s a religious blood sacrifice that was invented to sexually suppress males. It is a form of sexual assault worse than rape.
The problem is even the so-called experts don’t know their own laws.
—
Circumcision is not a medical procedure though. Whether done on males or females, it’s assault. IT’s done without any medical indication. A foreskin never needs to be cut off.
It is simply illegal, and that’s a fact. That’s why the government won’t respond to Mike Buchanan when he sends them letters informing them of that fact.
It contravenes the first do no harm principle. If you believe cutting off a foreskin for no valid reason is a medical procedure and legal, then you must believe cutting off children’s arms and legs for no valid reason is a medical procedure and legal. Unless there is a medical indication, it is assault. And no, there is never an indication, e.g. circumcision for phimosis contravenes the first do no harm principle.
First, on the contrary, circumcision is indicated for some cases of phimosis as a treatment of last resort, particularly in cases of balanitis xerotica obliterans — although Dewan does note that phimosis is overdiagnosed, possibly as a means of simplifying referral, and the inclusion of cases for which steriod cream is sufficient may muddy the waters in that regard. Though valid cases rare and by far the exception, one cannot reasonably say that circumcision is never medically indicated.
Though, on the face of it, amputation of a limb is analogous to amputation of the foreskin, it’s a false equivalence because one necessarily results in permanent reduction of function, where the other only results in dysfunction when the surgery is botched. Mr Newman’s argument that it follows that if MGM is legal, then so must be arbitrary amputations is therefore invalid.
That’s not to excuse or justify MGM — note that I call it mutilation, not circumcision, so my views on the subject should be clear — but, in pure clinical terms, MGM is closer to an elective cosmetic surgery for aesthetic (or other) effect. Of course the foreskin “never [routinely] needs to be cut off”. That’s what ‘elective’ means.
As such, circumcision along with liposuction, rhinoplasty and a host of other procedures that carry risks regardless of how skillfully executed (risks greatly amplified when carried out by unqualified surgeons) and which require drugs available only to qualified doctors are, by any reasonable definition, medical procedures — and the attempt to redefine MGM otherwise is a semantic argument and therefore pretty weak. Nor should it be a necessary one if, as Mr Newman and others insist, MGM is, in fact, already illegal.
It’s also worth pointing out that proponents of MGM do actually have some arguments in their favour, and also that that is not the same as accepting them as persuasive, or that their evidence outweighs the evidence against the practice.
Strategy to combat MGM
For now, it remains yet to be established that MGM is actually illegal. The fact that Mike Buchanan’s letters go ignored does not prove otherwise. It is more likely that the government and its lawyers find such arguments unpersuasive and have no reason to be motivated to do anything until forced by court action or political pressure. Quite the contrary, they have plenty of motivation to do nothing because offending religious sensibilities is politically untenable.Even the most eminent of legal opinions, including that of the Attorney General himself and Blackstone’s seminal Commentaries, remains merely an opinion until the opinion is tested in court — although the public, including the judiciary, are more likely to note the AG’s opinion than any other lawyer (including that of a QC).
Ultimately, it doesn’t much matter what you call it or how you characterise it, MGM will continue until stopped, and there are only two ways to stop it: a binding UK Supreme Court decision against it — though there is no guarantee a Supreme Court challenge would go the way we’d like — or primary legislation.
The objective of lobbying is persuasion, and that will not be accomplished by bashing the public and MPs over the head with what they regard to be a dubious claim (even if the claim is, in fact, right).
If anything, it’s counter-productive because if MGM is already illegal then, as I said, Parliament and MPs have a ready-made excuse to do nothing and there is no way to force the DPP to prosecute such cases.
To my mind, a much more persuasive argument is one based on consent. While parental rights and obligations include making medical decisions for their children, there is good reason to proscribe permanent, elective cosmetic surgery (ie, operations that are not medically indicated) on minors just as the Tattooing of Minors Act (1969) prohibits tattooing of children who, after all, will eventually become adults and come into possession of agency and may disagree with their parents’ decision.
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