Conclusion
This paper has attempted to steer a middle course between two opposing views. Although the examination tilts in favour of the conservationist, by proposing legal regulation of the practice, it also seeks to contain the fear of the abolitionist. The proposed regulation will make it illegal for minors to undergo female circumcision, and only those adults who wish to have it done will be permitted under the strict scrutiny of the law.
Female circumcision has returned to mainstream debate again and one hopes that this time a compromise acceptable to the abolitionists and the conservationists will be forged. The latter group should be given the opportunity of expressing its view without fear of being regarded with contempt. Such a cordial approach will foster a fair debate between the various interest groups that is long overdue.
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The debate on the ethics of the practice of female circumcision has been going on for well over a decade. The earliest international debate on the practice was at the Khartoum Seminar in 1979 organised by the World Health Organisation. Fran P. Hosken gives a vivid account of the reception that visited the discussion in “Female Genital Mutilation and Human Rights”,Feminist Issues (Summer, 1981), 3. See also M. Daly,GYN/ECOLOGY: The Metaethics of Radical Feminism (London: The Women's Press Ltd, 1978); The Civil Liberties Organisation, Lagos report “What's Culture Got To Do With It?”,Harvard Law Review 106 (1993), 1944. Other publications have been largely by NGO's involved in changing cultural attitudes, see E. Dorkenoo and S. ElworthyFemale Genital Mutilation: Proposal for Change (Minority Rights Group Report, Manchester Free Press, 1992, 3rd ed.). At the Nairobi Women's Conference in July 1985 the debate on female circumcision pitched Western women against Third World African women. See further N. Cagatay, C. Grown and A. Santiago, “The Nairobi Women's Conference”,Feminist Studies (Summer, 1986), 401.
CLO, Lagos Report,supra n.2, at 1952.
It is outside the scope of this paper to include a discussion of African marriages and family patterns. See generally A. Phillip and H.F. Morris,Marriage Laws in Africa (Oxford: Oxford University Press, 1971).
The immediate complications are: 1. Haemorrhage, 2. Acute infection, 3. Bleeding of adjacent organs, 4. Violent pain resulting in serious shock. Later complications include: 5. Vicious scars, 6. Chronic infection, 7. Haematic complications, 8. Obstetric complications, 9. Psychological complications. For a full discussion of health problems arising from female circumcision, see further O. Koso-Thomas,The Circumcision of Women: A Strategy for Eradication (London: Zed Books Ltd., 1987).
However, Hosken argues that it constitutes an outrageous abuse of modern medical health equipment, teaching, and tools:supra n.2, at 9.
InCorbett v.Corbett [1970] 2 All E.R. 33, a “sex change” operation was declared lawful by the courts even though this procedure involved a serious form of bodily harm. The court recognised the psychological benefit the patient derived from undergoing the transformation.
There have been reported cases of clitoridal hypertrophy and enlargement of the labia in several African races which practice genital excision. What however is unclear is whether the enlarged clitoris is congenital or specially manipulated through masturbation. See further H. Ploss, M. Bartels, and P. Bartels,Woman. An Historical Gynaecological and Anthropological Compendium, ed. E. Dingwall (London: Heinemann (Medical Books) Ltd., 1935).
The scarring that results from the excision is typical of all surgery and is no more permanent than a tattoo. R. Mackay, “Is Female Circumcision Unlawful”,Criminal Law Review (1983), 717, states unconvincingly that while an adult may consent to being tattooed, incisions inflicted by means of a razor blade are hardly analogous. How he arrived at such a conclusion is unclear. Both tattooing and circumcision involve pain to the victim, result in permanent scarring and are done for aesthetic reasons.
A. Scull and D. Favreau, “The Clitoridectomy Craze”,Social Research 53/2 (Summer, 1986), 243, traced the rationale behind clitoridectomy in England. They concluded that in the mid-nineteenth England clitoridectomy was used as a guise to deny women sexual pleasure and satisfaction by attempting to cure them of mental illness.
Many medical practitioners support the abolitionist stance that female circumcision was devised to curb female sexual desire and response. See further Hosken,supra n.2, at 11.
Koso-Thomas,supra n.9, at 13.
Koso-Thomas,supra n.9, at 13.
The writer acknowledges the diverse nature of Western feminism and restricts references here to Marxist-styled feminism. See recent work of C. Delph and D. Leonard,Familiar Exploitation: a new analysis of marriage in contemporary western societies (Oxford: Polity Press, 1992).
Many of the Feminist writers base their thesis on Engel'sThe Origin of the Family, Private Property, and the State ed., by Eleanor Leacock (New York: International Publishers, 1972). See generally E. Leacock,Introduction to Engels' Origin of the Family, Private Property, and the State (New York: International Publishers, 1975); S. Firestone,The Dialectic of Sex: The Case for Feminist Revolution (New York: Bantam, 1970).
Two important pieces of legislation are the USA Civil Rights Act 1964 and the UK Sex Discrimination Act 1975.
See generally E. Shorter,A History of Women's Bodies (England: Penguin Books, 1982).
Hosken,supra n.2, at 10.
Ibid., at 9.
Per Lord Templeman inR. v.Brown [1993] 2 W.L.R. 558: “... activities carried onwith consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm.Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities” (my emphasis). Arguably his Lordship was referring to male circumcision but what is significant is the fact that he chose to describe it as “ritual”. By using such a description his Lordship recognises that circumcision, even of males, is located in cultural and religious practises rather than in health science.
The reason for the change is presumably linked with the fact that the child is schooling. Pubertal circumcision will obviously disrupt his or her education. See also Koso-Thomas,supra n. 9, at 23.
Various international conventions, including regional declarations, recognise that female circumcision of girl constitutes an abuse of the child. SeeConvention on the Elimination of All Forms of Discrimination Against Women (CEDAW, no. 12, June 1933) and The African Charter on Human and Peoples' Rights (1986).
InR. v.Adesanya (unreported),The Times, 16th and 17th July, 1974, the defendant incised the cheeks of her two sons, both under the age of sixteen. She was found guilty under section 47 of the Offences against the Person Act 1861 because the children were incapable of giving valid consent.
France and the Sudan have had a few successful prosecutions. See furtherLinks Vol 1 Issue 2 (June, 1993), publication of the Foundation For Women's Health Research and Development [FORWARD].
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This paper is a modified version of an earlier one delivered at Exeter College, Oxford, at the forum of The Oxford Civil Liberties Society in November 1994. I would like to thank the reader forFeminist Legal Studies for the comments made and to James Peniston for the editing.
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Atoki, M. Should female circumcision continue to be banned?. Feminist Legal Stud 3, 223–235 (1995). https://doi.org/10.1007/BF01104114
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DOI: https://doi.org/10.1007/BF01104114