Feminist Legal Studies Vol.II! no.2 [1995]

SHOULD FEMALE CIRCUMCISION C O N T I N U E T O BE BANNED?

MORAYO ATOK[*

1. The Debate The debate on female circumcision 1 has generally been between two extremely opposed camps. 2 On one side are those who argue for the total eradication, abolition and criminalisation of female circumcision. They regard female circumcision as a life-threatening form of subjuga-

2

Law School, University of Buckingham, MK18 lEG. 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 for Feminist Legal Studies for the comments made and to James Peniston for the editing. "Female Mutilation" is avoided because of the negative connotation. The term "female circumcision" is preferred and used in this article to describe the different types of external alterations of the female genitalia. The subsection on comparative feminist jurisprudence below makes reference to the three types of genital alterations commonly done. The debate on the ethics of the practice of female circumcision has been going on for well over a decade. The earliest ir~ternational debate on the practice was at the Khartoum Seminar in 1979 organised by the W~rld 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/ECOLOGI~ The Metaethics of Radical Femin/sin (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. Elworthy Female Genital Mutilation: Proposalfor 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", FeminhtStudies (Summer, 1986), 401.

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tion when performed on women and a form of child abuse when performed on a female infant or child. 3 Furthermore, they argue that the practice serves no medical purpose and is done solely to control female sexuality. Those who hold this view are largely influenced by Western cultural standards. The other side is made up of women, mainly from African countries, who are affected by the practice and they want the practice to continue. These African women regard the campaign by the abolitionists as a disguised attempt by western feminists to impose their values and jurisprudence on non-Western women. They insist on the right to cultural determination and jealously guard their traditional values. The conservationists resent what they deem to be interference from outside quarters in respect of a well-worn and tested cultural practice.

2. For or Against the Motion This paper examines the arguments put forward by both groups and considers whether a compromise can be forged. The author wishes to emphasise that she neither supports the inflexible stance of the abolitionists who want the practice to be banned in its entirety, nor those who insist that the practice of female circumcision be continued in its present "hidden and uncontrolled" form. This paper proceeds on the premise that female circumcision is a cultural practice that should be given legitimacy, and the State should allow female circumcision provided it is carried out according to law, with penal sanctions imposed on circumcisers who act outside the scope of the law. Equally, this paper explores several issues arising from the position advocated at providing legitimacy for female circumcision. It considers why the practice should be dependent upon legal regulation, and finally examines the extent of the legal regulation of female circumcision contemplated.

3. An A~ican Jurisprudence It is important to understand from the onset that only certain societies in Africa practice female circumcision. There are fundamental cultural differences in attitudes and customs between the various societies and subcultures in the region. Where female circumcision is prac3

CLO, LagosReport, supra n.2, at 1952.

SHOULD FEMALECIRCUMCISION CONTINUE TO BE BANNED? 225 tised, culture demands that it be done. On the other hand, where female circumcision is not practised, it is simply the custom of that society not to so practice, and its nonexistence did not result from advice given on the "ills" of female circumcision. One does not however deny the fact that external influences might have perhaps changed the orientation of some of these societies that do not practice female circumcision. Why a practice is carried out in a particular society and not in another, is often connected with its jurisprudential nature. The practice of female circumcision has its foundation in African jurisprudence, where the female genitalia is perceived as a symbolic organ that connotes purity and fecundity. Indeed it is on the female genitalia that two important concepts in African jurisprudence, "virginity" and "fertility" are based. 4 Contracts of marriage and family patterns in many African societies are structured entirely on these two concepts. 5 In these traditional societies a good marriage is one contracted with a virgin bride. The virginal state of the bride is based on her genitalia and has both symbolic significance of purity and economic value. Virginity signifies purity and determines the value of the dowry given by the bridegroom. It is the standard upon which the marriage is contracted and any hint of blemish in the bride diminishes the value of her dowry, and also reduces her chances to marry. The female genitalia is thus an important element in the negotiation of marriage contracts and an u n defiled one carry's the highest value. It is therefore not surprising that in some of these societies there is much preoccupation with the appearance of the female genitalia. The genitalia had to be re-created in a form that indicated purity of the organ. Excision of parts was the procedure adopted to remove those area~s of the female genitalia considered inimical to purity and this eventually evolved as a cultural practice. Female circumcision is in essence genital aesthetics and this is the reason why many practise it. 6 It is interesting to note, that in many societies where the practice is car ried out, female circumcision is done on pubertal girls and only then are they eligible for marriage. 7 In contrast, where female circumcision is 4 5 6 7

On the issue of fertility see subsection 4.D.ii, below. 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, MarriageLaws in A~ica (Oxford: Oxford University Press, 1971). See below, section 4.C. See below subsection 4.D.ii.

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not practised, girls are often married before they attain puberty. Child betrothal, or marriage before the onset of menstruation, being a way of ensuring purity of the bride. 8

4. The Arguments Against It is easy to understand why many readily subscribe to some of the arguments advanced for banning the practice of female circumcision. However, these arguments do not stand up to an in depth analysis.

A.

BarbaricSurgery

Abolitionists argue that female circumcision is a barbaric practice which causes much pain and carries a high risk of infection to the circumcised. Female circumcision is traditionally performed without anaesthetic and under highly septic conditions. The attendant complications that are often associated with female circumcision are typical of all operations where crude tools are used in unhygienic settings and is not peculiar to female circumcision. 9 The regular use of anaesthetics in surgery in England did not commence until the 1840's and antiseptic was not widely accepted until the late 1860's. It was the combination and application of these two medical ideas that gave surgical operations scientific legitimacy and removed them from the list of barbaric practices. Similarly the barbarity presently associated with female circumcision is removed if the circumcision is performed using anaesthetic in antiseptic conditions. Indeed some groups advocating the abolition of female circumcision concede that, if it is done under anaesthesia and within standard surgical conditions, it would eliminate the frightful attendant complications. It is now time for the traditional circumcisers to apply modern science to their art, By For example the Hausas and Fulanis of Northern Nigeria do not practice female circumcision but they engage in early marriage. 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 Strategyfor Eradication (London: Zed Books Ltd., 1987).

SHOULD FEMALECIRCUMCISION CONTINUE TO BE BANNED? 227 using advanced medical equipment that precisely cut and stitch, they can avoid many complications and the woman is less at risk. 10 Female circumcision is a deep rooted cultural practice which confers a high social status on women. Social privileges and benefits derived from being circumcised are the reasons put forward by women who choose to subject themselves and their daughters to circumcision. ~ The risk to health is minimised if circumcisers are encouraged to modernise their technique.~2

B.

CircumchionClinics

The abolitionists also argue that to apply modern medicine to the practice is to encourage female circumcision within the hospital setting. They regard it as an unnecessary drain on the scarce resources of~already stretched medical services. This problem is solved by providing circumcision services as a separate branch of medical services, as we have dental services, chiropody, opticians, fertility clinics, and plastic surgery clinics. The hospitals will thereby not be burdened with providing circumcision services. Moreover, these services need not be provided by mainstream medical doctors but by those specially trained in the art of genital surgery. This will solve the present problem that circumcisers are persons untrained and unfamiliar with the female genitalia and hence the surgical mistakes that they often make. Furthermore, having a specialist service makes it easier for the State to monitor the practice and ensure that the practitioners act within the law.

C.

No UsefMMedical Purpose One common argument put forward for banning the practice is that

10 However, Hosken argues that it constitutes an outrageous abuse of modern medical health equipment, teaching, and tools: supran.2, at 9. 11 In several of these cultures an uncircumcised woman assumes an inferior position in relation to her circumcised age-grade sisters and may be scornfully regarded by them. 12 Until fairly recently ear lobe piercing was quite painful and carried the risk of sepsis. Modern medical technology has however made piercing body parts relatively simple, and now women and men are experimenting with this procedure with various other parts oftbeir anatomy.

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it serves no useful medical purpose when contrasted with male circumcision which is done for hygienic reasons. The fact that no medical benefit has been found to support the practice is not a reason to ban the practice. There are many surgeries that are carried out which do not satisfy the strict test of medical purpose. A good example is cosmetic surgery done on the nose, breast, face and various other parts, which may involve the removal or insertion of a foreign object, to produce the desired effect. The objective is to improve the body image as perceived by that particular person. All examples mentioned above are accepted as legitimate and are regularly performed. 13 Similarly, female circumcision should be viewed as a form of cosmetic surgery done to enhance the woman's sexuality. 1,1 The main reason given by the conservationists for the practice, is the aesthetic effect that excision of the clitoris gives the vulva. To them, a vulva made flat and smooth, is more pleasing to the sight and touch, than a vulva with the clitoral projection. 15 Fleshy encumbrances are considered unsightly and excision is done to produce the desired effect. 16

D.

The Feminist Argument Western feminists argue that the cosmetic reasons put forward in

13 In Corbettv. Corbeu [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. 14 See above section 3, on African Jurisprudence. 15 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). 16 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.

SHOULD FEMALECIRCUMCISIONCONTINUE TO BE BANNED? 229 support of female circumcision are not genuine, as the women are merely conforming to what men find attractive. Moreover, that female circumcision is done for one basic purpose: to deny women sexual pleasure and satisfaction. 17 The problem with these arguments is that they are biased since they are based squarely on Western feminist experience. 18

i.

Western Feminist Experience

In the West, female circumcision can be traced to the nineteenth century when it was carried out for psycho-sexual reasons. Victorian medicine presented women as susceptible to emotional disorders and mental diseases because of the nature of their reproductive organs. Their organs, and in particular the clitoris had to be tempered. The medical theory was, if exciting the clitoris caused insanity, its removal would cure the neurosis. A radical surgical treatment called, clitoridectomy was adopted. The operation fell into disrepute following the fall of Dr. Baker Brown in 1867 who had been its main proponent. However, the theory surrounding the application of clitoridectomy continues to haunt western medicine. 19 In trying to distance the profession from its embarrassing history, clitoridectomy is now considered evil and is no longer recommended as a cure for female psycho-sexual disorders. This was the experience in the West, but was not the experience in non-Western societies. 2o 17 A. Scull and D. Favreau, "The Clitoridectomy Craze", SociaIResearch 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. 18 Comments made in this article should not be taken as an indictment of Western feminism. One is merely trying to point out that differences exist. Although non-Western feminism has much to learn from the experiences of Western women, these experiences cannot be generalised nor expressed as the norm for all women. 19 Many medical practitioners support the abolitionist stance that female circumcision was devised to curb femaIe sexual desire and response. See further Hosken, supra n.2, at 11. 20 In a world o-fcultural diversity differences in ideology and philosophy have to be recognised and respected. It is not incumbent on one group to impose its own experiences on others.

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ComparativeFeministJurisprudence

Although female circumcision in the traditional African societies is linked with sexuality, "sexuality" is based on a very different jurisprudence from that of the West. Circumcision in both male and female is in essence done to prepare, and not to deter, sexual activity. It is a sym bolic statement done primarily to mark the onset of adulthood. The pubertal are considered to have reached the age of maturity and are now old enough to engage in sexual intercourse. The extent of the circumcision in the female signifies different aspects of preparation for sexual intercourse. Where the prepuce or hood of the clitoris is circumcised, this exposes the clitoris and makes it more sensitive, and thus heightening pleasure during sexual contact. 21 If the clitoris is removed completely, the object is to enhance the woman's femininity. 22 In African societies, there has always been the need to maintain a separate identity between the sexes. This separate identity was expressed in different ways, and circumcision was one way. Excision of the clitoris, from the female genitalia, removes any biological likeness to male penis and any hint of maleness. With masculinity gone, femininity is preserved and the appearance of the female genitalia suggests purity of the organ. 23 The purpose of the more involved surgery of infibulation, where the vagina is stitched together, is to delay sexual intercourse until marriage. 24 There is a strong requirement for a virgin bride in these societies. Closing the vagina ensures that sexual intercourse does not take place. It is an effective, but crude method, which guarantees purity of the bride. 25 When the woman is married, she is deinfibulated to allow functional sexual intercourse and consequent childbirth. Abolitionists have expressed concern that circumcision causes the woman immense pain during sexual intercourse. Furthermore, that the removal of the clitoris means that the woman is denied any sexual plea21 This type of female circumcision is called clitoridectomy and is analogous to male circumcision. 22 Complete removal of the clitoris is another type of female circumcision and is commonly called excision. 23 See above 3. 24 Infibulation is the third type of female circumcision. It is extensive and occludes the whole vulva. 25 See above 3.

SHOULD FEMALECIRCUMCISION CONTINUE TO BE B~kNNED? 231 sure since the main erogenous zone is rernoved. While it is true that the clitoris is an erogenous part, it is not the only one. There are at least four other erogenous parts, the mouth, the neck, the breast and the ears, from which the woman can be stimulated. Besides orgasm is not a bio logical experience but a psychological one triggered by feelings for the partner, which is why not every woman, circumcised or uncircumcised, achieves an orgasm at each and every sexual encounter. In fact, the lack of sexual response by circumcised women is not due to a want of orgasm but is rooted in cultural expressions of sexual sensation. Very ofren the culture discourages an outward display of emotion related to sexuality. 26 Girls are from a very early age conditioned to suppress any feelings that may develop during a male's advances. This conditioning also affects actual sexual experience, so rather than express a feeling of 0rgasm, the woman suppresses it. 27 More importantly sexuality within the African context is linked with fertility and not orgasm. It is the fecundity of a woman which gives her sexuality. A childless woman is regarded as lacking sexuality, and her barrenness is a ground upon which a marriage may be dissolved and the dowry gi,ven returned to the husband. A woman engages in sex in fulfilment of the terms of the marriage to produce offsprings of the union. The female genital organ is not perceived as a site for sexual pleasure~ but as a site for concep tion. 28. Reproduction is the primary purpose for having sexual intercourse and any pleasure derived is just an added bonus. In sharp contrast, Western feminism has tended to concentrate overwhelmingly on the need to derive pleasure from sexual intercourse, and has decried reproduction as oppression of women. 29 Marxist feminism locates the oppression of women in their inability to detach themselves from their unpaid "jobs" as housewives and mothers, and participate in exchange-value production. 3o Women had to be liberated 26 Koso-Thomas, supra n.9, at 13. 27 Every society has its own equivalent form of suppressed emotions. For example, it is not proper to wail at the funeral of a loved one in England. 28 Koso-Thomas, supra n.9, at 13. 29 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). 30 Many of the Feminist writers base their thesis on Engel's The Origin of the Family, Private Property, and the State ed., by Eleanor Leacock (New York:

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from the drudgery of housework and care of the kids in order to compete favourably with men. Employment legislation and contraceptives helped to liberate Western women from domesticity and pregnancy. 31 The law allowed women to work on favourable terms and the pill and other devices enabled them to have sex without the risk of conception. These developments altered the images of Western women as well as the purpose of sexual intercourse. Female sexuality was no longer represented in the prolific mother and housewife but in the slim, erotic and sterile woman. 32 Sexual intercourse became primarily a pleasure-seeking activity and bearing children a planned, secondary option. E.

Human Rights Violation

Finally the abolitionists argue that the integrity of the human body is supreme. That any violation of the nature of the human person, for any reason at all, without the informed consent of the person involved, is a violation of human rights. 33 Hosken argues that genital operations performed on young girls are human rights' violations since they do not make a free choice to be circumcised but conform due to social pressure. 34 The essence of her argument is that the girls do not give their true consent for two reasons. First, because as minors, they are not legally capable of giving consent. The choice is not made by them but by their parents or guardians. Secondly, because they are denied the choice of the alternative; the alternative being not to have circumcision. Availability of a choice is fundamental to the human rights' issue. However, the freedom to choose must be done within the perimeter of the law. Usually it is the individual concerned that makes the choice, but sometimes the choice is made on his or her behalf, by a parent or guardian or by the court, because the individual is incapable of making

31 32 33 34

International Publishers, 1972). See generally E. Leacock, Introduction to Engels' Origin of the Family, Private Proper~y, 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.

SHOULD FEMALE CIRCUMCISION CONTINUE TO BE BANNED ? 233 the choice. Everyday, all over the world, decisions are made for infants, minors and the mentally ill in respect of such important things as education, health care and religion. Similarly, parents make decisions for their children and wards on mundane matters such as piercing the ears and genital circumcision. 35 Surely one cannot oppose female circumcision on the grounds of parental interference and lack of consent by the child, without condemning ear piercing and male circumcision since both involve body violations. 36 What must be made clear is that traditionally, circumcision in both male and female was essentially done on pubertal or adults. It is a recent phenomenon that circumcision is increasingly being carried out on very young children 37 and thereby infringing the rights of the child. 38 In this respect, one concedes that female circumcision, including other forms of bodily interference such as tribal markings, ear piercing, or neck stretching, on the body of a person not old e~.ough to consent, amounts to an abuse. 39

35 Per Lord Templeman in R. v. Brown [1993] 2 W.L.R. 558: " .., activities carried on with 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. 36 Ear-piercing punctures the ear lobe for the purposes of adorning ear decorations. In some societies these holes are widened thereby elongating or "deforming" the ear lobe. But these forms of body alterations for decoration are seen to be entirely "acceptable". 37 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. 38 Various international conventions, including regional declarations, recognise that female circumcision of girl constitutes an abuse of the child. See Convention on the Elimination ofAll Forms of Discrimination Against Women (CEDAW, no.12, June 1933) and The Aj$ican Charter on Human and Peoples'Rights (1986). 39 In R. 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.

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But the practice need not be banned, merely to protect this vulnerable group. For to do so, will be infringing the rights of those adults who choose to be circumcised. Abolition effectively denies their freedom of choice, since this choice can only be exercised where the practice is permitred. It is to preserve this choice that the paper has argued against criminalising the practice. The paper urges that female circumcision be permitted and properly regulated.

5. Legal Regulation Law is a social phenomenon and its primary function is to create order in society. In traditional societies, conventions and culture are essential for preserving the established society and are often embodied in the law. As society evolves, the law adapts to the interests and needs of the population. Modifying the law balances the demands of various groups within the population and strives at a just compromise between competing groups. Any law enacted in respect of female circumcision must, on the one hand, prevent the infringement of the rights of the individual to cultural determination. It must protect those who wish to freely exercise their right to be circumcised and ensure that the practice is carried out within the law. Such a law must, on the other hand, expressly guard the rights of the child against abuse, protect the freedom of those who elect not to be circumcised and guarantee the right to proper information concerning circumcision. The law should limit the performance of the operation to trained practitioners and require the surgery to be performed only in approved settings. The services should be provided only to clients who have given their informed and expressed consent. One suggestion is that clients should be at least sixteen years of age, as this is the age of majority in many African countries. 40 A law in this form, would be more efficacious than one which bans female circumcision in its entirety. Banning the practice will not eradicate it; it will only succeed in driving it underground. In countries where there have been prosecutions the police have largely depended on

40 In England, the Family Law Reform Act 1969 fixes the age of majority as 18 years, although section 8 provides that at 16 years minors are presumed competent to give valid consent to medical and dental treatment.

SHOULD FEMALECIRCUMCISION CONTINUE TO BE BANNED? 235 the goodwill of persons to report the circumcision. 41 It is for this reason several anti-circumcision laws are ineffective. 42 6. Conclusion This paper has attempted to steer a middle course between two opposing views. Although the examinatiori 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 giver~ 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.

41 France and the Sudan have had a few successful prosecutions. See further Links Vol 1 Issue 2 (June, 1993), publication of the Foundation For Women's Health Research and Development [FORWARD]. 42 For example, in England since enacting the Prohibition of Female Circumcision Act 1985 there has been no prosecution, yet female circumcision continues to be performed. France, unlike Britain, does not have a specific law on female circumcision but employs existing laws to protect female children from the practice.