CHAPTER IV. LEGAL PROHIBITION OF FEMALE CIRCUMCISION

Female circumcision brings up many questions:

• Do we have the right to judge the customs of other societies and if so, on which criteria?
• Can we remain indifferent, in the name of "difference", to mutilations inflicted upon young children?
• Must we make a distinction between the different kinds of circumcision?
• Must we forbid circumcision immediately and completely or progressively?
• May the practice be allowed in hospitals on a temporary basis?

I. TO JUDGE OTHERS' CUSTOMS

The Muslim circles in favour of female circumcision see an imperialistic action in the Western campaign against it. Al-Sukkari writes that, if some are trying to forbid it, "it is because the West has succeeded in imposing secular materialistic views on our sciences, our tradition, our artistic culture" 146. Imam Shaltut who accepts the idea of forbidding female circumcision if proven harmful, underlines the fact that it should not be prohibited under pressure from others - a polite nod toward the West - , but only if proven harmful 147.

 Jomo Kenyatta, late President of Kenya, used to say: "Excision and infibulation unite us tightly; they prove our fecundity" 148. To which Pierre Leulliette replies:

Millions of children between the age of 2 and 14 are horribly tortured in an atmosphere of collective hysteria, in contempt of their genitalia, in scorn of their bodies, in defiance of their lives... That barbarian culture! Is it not the lowest manifestation of the unlimited, omnipresent phallocracy? Those mutilations! Aren't they first and foremost an example of man acting out his most secret hatred and deepest fear of woman 149?

 This problem is now on the agenda of international organizations. On July 10, 1958, the Economic and Social Committee of the United Nations invited the WHO "to undertake a study on the persistence of customs involving ritual practices on girls and on the measures in effect or planned to put an end to those practices" 150. The answer was clear: "[The World Health Assembly] believes that the ritual practices in question, resulting from social and cultural conceptions, are not within the WHO's jurisdiction" 151. And this, in spite of an overwhelming report prepared by the WHO's very own Eastern Mediterranean Regional Office 152.

 In a communication on excision dated September 23, 1980, UNICEF explained that its approach to eradicating a 2000 year old cultural and traditional practice "is based on the belief that the best way to handle the problem is to trigger awareness through education of the public, members of the medical profession and practitioners of traditional health care with the help of local collectivities and their leaders" 153.

 In 1984, the Inter-African Committee stipulated that "for understandable psychological reasons, it is the black women who should have the say in the matter". This committee asked for restraint, in order that the project might be successful, claiming that "the wave of uncontrollable and violent denunciations of those mutilations on the part of Western countries" was doing more harm than good 154. On the subject of legal prohibition, this same committee, in 1984, warned against "untimely haste which would result in rash legal measures that would never be enforced" 155. As for the health professionals, they were quite satisfied with themselves in condemning "the medicalisation and modernisation of the female circumcision procedure, as non-conform to medical ethics" and to advise that "no medical or paramedical personnel be allowed to practice it", for the same reason 156.

 This problem is puzzling for the Western countries. Dominique Vernier writes:

 As soon as the first preliminary investigations of cases on excision started [in France] (the Press mentions them as early as 1982-83), the Justice Department was put in an awkward position and has been ever since 157.

 This perplexity is due to the principles of the French penal code. Indeed, the parents have no intention to do violence to their children or to batter them, but rather intend to respect a custom, without the application of which their daughters, once adults, would not be able to integrate into their country of origin 158. On the other hand, in practice, it is easy for a couple who want their daughter excised to take her back to her country of origin, paralysing the law of the adopted country. Last, but not least, even if the countries of origin adopt some laws against those practices, those laws would not be able to defeat a massively accepted practice, which has become an integral part of that society 159.
 

II. RIGHT TO DIFFERENCE OR INDIFFERENCE

This debate about the right to be different was settled in favour of the girl's right to physical integrity (but not the boy's).

 The WHO gave up its above mentioned reservations of 1959. It became involved in 1977 in the creation of the first Workshop on female excision. In February 1979, its Eastern Mediterranean Regional Office organized in Khartoum the first International Seminar on Traditional Practices affecting Women's and Children's Health. This Seminar recommended that specific national policies be adopted in order to abolish female circumcision 160. In June 1982, the WHO made a formal declaration of its position on excision to the Committee of Human Rights of the United Nations. The WHO approved the recommendations made at the Seminar in Khartoum and added: "It has always been the WHO's opinion that female circumcision should never be performed by health professionals in any situation under any conditions, be it in hospitals or other specialized settings" 161. The most recent stand was taken in 1989: the Regional Committee of the WHO for Africa passed a resolution urging the participating governments:

• to adopt appropriate policies and strategies in order to eradicate female circumcision;
• to forbid medicalisation of female circumcision and to discourage health professionals from performing such surgery 162.

A turnaround was also made by the Inter-African Committee. Whereas in 1984, it had warned against promulgating laws against female circumcision, it requested such laws in 1987, because "neither the efforts nor the research nor the campaigns ever had any real impact" 163. Three years later, it reinforced its position, requesting promulgation of specific laws "forbidding the practice of female genital mutilations and other sexual abuses and making provision for sentencing anyone guilty of such practices". This law should provide "an especially severe punishment for health professionals" 164.

Some Western countries have timidly followed in the footsteps of the two above-mentioned organizations.

 For instance, in 1981, France adopted article 312, paragraph 3 of the Penal Code, stating:

When acts of violence or privation have been habitually inflicted, the sentence to be imposed upon the guilty party shall be: life imprisonment if there is mutilation, amputation, deprivation of the use of a limb, blindness, loss of an eye and other permanent disabilities or death, even if the guilty party did not intend such a result.

 This article is invoked against female circumcision even though the word is not mentioned in the text. In Sweden, a 1982 law forbids any operation on an external organ aiming at mutilating it or altering it definitely, whether or not consent is given165. Great Britain did the same in 1985 166.

 In Switzerland, article 122 of the Penal Code stipulates:

Anyone who has mutilated a person's body, one of the limbs or one of the important organs, or rendered the limb or the organ unfit to function, will be sentenced to a maximum of 10 years reclusion or to between 6 months and 5 years of imprisonment.

 Moreover, in 1983, the Central Committee for Medical Ethics of the Swiss Academy of Medical Sciences took a very firm position against female circumcision and its practice by medical professionals 167.

The Convention on the Rights of the Child is not clear about it. Article 24, paragraph 3 states:

 States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

 No definition is given of the expression "traditional practices detrimental to the health of children". The travaux pr‚paratoires are of no help either. The definition therefore is left up to the Member States. Those States will surely not hesitate to quote article 29 paragraph 1.c of this Convention:

 The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own.

 Lastly, let us point out the London Declaration born out of the First Study Conference on Genital Mutilation of Girls in Europe/Western world (London, July 6-8, 1992). This Declaration states: "Any form of genital mutilation or genital injury to the girl child is a violation of her basic human rights, and must be abolished". It asks national groups and individuals to "promote a framework for legal action, based on either specific anti-FGM [female genital mutilation] or on general laws against the injury to the body of the child". This Declaration "urges all governments and all health authorities to stand firm against any attempt to medicalise the genital mutilation of or genital injury to the girl child" 168.  

III. DISTINCTION BETWEEN DIFFERENT FORMS OF CIRCUMCISION

One must reiterate here that a distinction is wrongfully made at the medical and intellectual level between male circumcision, which is generally accepted, and female circumcision. Neither the WHO nor the Inter-African Committee, nor UNICEF, nor the London Declaration, nor the Western laws forbidding female circumcision make any mention of male circumcision. It is not mentioned in the travaux pr‚paratoires to article 24, paragraph 3 of the Convention for the Rights of the Child either. Female circumcision is sometimes mentioned, but never male circumcision 169.

 One might have logically expected that those Western organizations and laws would draw a distinction between the different forms of female circumcision, in as much as minimal female circumcision can be compared to male circumcision. But this is not the case as already seen. During the above mentioned Conference of European Studies on Female Genital Mutilation, the Netherlands tried to have such a distinction made, to no avail; the WHO vetoed it. Doctor Mehra, representing the WHO, explained to me that this organization fears it would be impossible to control the practice if one permitted one particular form 170.

 This firm attitude opposed to all forms of female circumcision is not shared by Muslim law. The latter makes a distinction between the permitted female circumcision called sunnah, while other forms, though widely practiced, are condemned by religious circles. This distinction seems also to apply in Muslim countries.

 In Sudan, a law of 1946 classified infibulation as an infraction punishable by a fine and imprisonment. It was abrogated under public pressure and replaced by an authorization for professional midwives to practice sunnah 171.

 On an undated flyer, written in Arabic, the Sudanese Association of Struggle against Traditional Practices states:

• Female circumcision (khafd) is an attack on the physical integrity and an alteration of the human being created by God in the very best way and in the very best form.
• Female circumcision is a savage butchery that divine religions do not allow.
• Female circumcision is neither a duty nor a sunnah, but a practice of the pre-Islamic era (al-gahiliyyah: the era of ignorance) against which the Prophet warned us in his narration: "Cut lightly and do not overdo it as it is more pleasant for the woman and better for the husband".
• Female circumcision does not protect chastity which is better guarded by education promoting good morality and healthy teaching of Islam.
• Female circumcision preceded religions and is practiced by many peoples of different religions and beliefs of which only the Sudan, Egypt and Somalia are Muslim.
• Therefore, stop circumcising girls.

This organization, while rejecting female circumcision in general, seems, in the 3rd paragraph, to propose the sunnah, instead of the pharaonic circumcision now prevalent in Sudan. A document prepared by the National Committee of Social Assistance in collaboration with UNICEF-Khartoum is doing the same. This document explains that the light form of circumcision is named sunnah which means it is conform with the tradition of Mohammed: it is a way of legitimating it rather that eradicating it 172.

 A similar attitude is adopted in Egypt. This country has promoted a governmental decree (No. 74-1959) regarding female circumcision. The text is far from clear. It states: 

1. It is forbidden for physicians to perform the surgical procedure of female circumcision. If one wishes it, then only partial circumcision may be carried, but not total circumcision.
2. Female circumcisions are forbidden in the clinics of the Ministry of Health.
3. Certified midwives have no right to perform any surgical procedure whatsoever including female circumcision 173.

This text is taken from a recent collective report on the woman's life and her health. The authors state that this text is not good as it does not forbid female circumcision. A law should be promulgated to abolish once and for all any kind of female circumcision 174.

 Egyptian juridical works and anthologies of law pertaining to public health never mention this decree. One never finds any judgements on it. On the other hand, the Egyptian courts have convicted a barber for having practiced circumcision on a boy who consequently died. Contrary to the physician, the judgement states, the barber is not protected by law if the result of his action is death or disability. The judge refused to consider laudable or charitable intentions or the absence of criminal intent. In this case, the Court applied article 200 of the Penal Code which makes provision for 3 to 7 years of forced labour or imprisonment in cases of voluntary injury without intention to kill, but in fact causing death 175. In another judgement, the Court of Cassation stated that a midwife has no right to practice circumcision, the right to perform surgery being reserved to physicians only, in pursuance of the first article of law 415/1954. The Court added that any attack on physical integrity, except in cases of necessity authorized by law, is punishable, unless the acts are performed by a physician. The midwife had circumcised a boy and mistakenly amputated his glans, causing permanent disability that the Court estimated at 25%. The midwife was sentenced to 6 months forced labour, suspended on condition of good behaviour during 3 years 176.  

IV. TEMPORARY AND PREVENTIVE MEASURES

Everybody agrees that legal measures will never be enough to stop female circumcision. A conscious awareness must be raised among the victims themselves. First, one must try to understand the reasons for those practices. In the meantime, in order to avoid the worst, shouldn't they be permitted to be performed in hospitals, in a less severe form?

1. Provision of medical care

As we have noted above, the WHO, the Inter-African Committee, the Declaration of the Swiss Academy of Medical Sciences and the London Declaration all dismiss this possibility as ethically wrong. They even ask for strict sanctions against members of the medical profession who perform female circumcision.

 This attitude may be open to criticism. A radical legal prohibition will only encourage female circumcision to go underground. It will then be performed by persons without proper knowledge of the possible complications, thus endangering the woman's health. The Senegalese representative raised the issue while the Convention on the Rights of the Child was being drawn up. Thus the actual phrasing of article 24, paragraph 3177.

 Dominique Vernier is of the opinion that the medicalisation of circumcision as is practised among the urban intellectual elite of some African countries and in some Italian hospitals, in spite of the physicians' hostility, should be accepted. She suggests that symbolic excision be substituted for de facto excision as it is done in Guinea, where the blacksmith's wife performs a light cut sufficient to draw a few drops of blood. This is a way to respect the ritual without mutilating the child 178.

 Medical care implies the risk of legalising and perpetuating female circumcision especially because of the economic repercussions. During the U.N. Seminar in Ouagadougou, some mentioned that the medical profession takes the place of the traditional matrons and excises in hospitals in order to make a financial profit and, by reducing health risks, they perpetuate the practice: a guarantee of making money. Their greed, having no limit, leads them to ignore the horror behind each sexual mutilation. Well aware of the trust and respect given to them by the masses, they abuse the naive parents and reassure them that the custom is well grounded. According to those at the Seminar, one must fight against such a tendency which is only going to add a new legitimacy to excision 179.

2. Comprehension

A. Gaudio and R. Pelletier see in female circumcision "an expression of male power" 180, "a demonic desire to control female sexuality, an endless tyranny of the dominating male behind the alibi of culture" 181.

 Nawal El-Saadawi, a victim of excision, explains why female circumcision still goes on in Arab society under the male iron will:

The importance given to virginity and an intact hymen in these societies is the reason why female circumcision still remains a very widespread practice despite a growing tendency, especially in urban Egypt, to do away with it as something outdated and harmful. Behind circumcision lies the belief that, by removing parts of girls' external genitals organs, sexual desire is minimized. This permits a female who has reached the dangerous age of puberty and adolescence to protect her virginity, and therefore her honour, with greater ease. Chastity was imposed on male attendants in the female harem by castration which turned them into inoffensive eunuchs. Similarly female circumcision is meant to preserve the chastity of young girls by reducing their desire for sexual intercourse 182.

She adds that female circumcision is a means of dominating women in a patriarchal society where a man can have more than one wife. The society uses various means to sexually bind her to one man and to control who is the father of her children 183.

 For Doctor G‚rard Zwang, the motive behind circumcision is "metaphysical guilt". It is the motivation "for all the sexual mutilations which human beings have inflicted upon themselves since they discovered the stone knife and the metal blade, a motivation which renders any non-religious, non-metaphysical consideration null and void":

As a result of metaphysical culpabilization, men present sacrifices to gods, divinities, spirits: any earthy pleasures, carnal desires, organs destined to provide pleasure. In order to be among the "chosen ones" in another life, be it extra-, or supra-, or infra-terrestrial, which follows automatically (!) upon death. That is the origin of fasts, Lent, Ramadan, prohibited foods; that is the origin of ordinances restricting sexual life: chastity, abstinence, continency, reshaping of genitalia (circumcision, excision, infibulation, subincision, hemicastration, etc...) 184.

Economics can also explain why circumcision is still going on, to take an example mentioned above, when it is performed in hospitals. It is also evident among traditional circles where midwives are not about to give up so lucrative a practice 185. In some areas, the profession of exciser is inherited from mother to daughter and the economic survival of the family depends upon it. If the practice were to be eradicated, it would remove the family's only source of income. Accordingly, some have recommended retraining women who practise excision; as matrons, they can give up practicing excision and still earn a living 186. Economics plays a role in male circumcision as well. In Canada, where medical insurers in some Provinces refuse to reimburse the costs of circumcision, it appears to be becoming less common 187.

Also, the dowry is higher if the girl is a virgin at the time of her marriage. Virginity is a money-making asset. That is why some nations are so keen on infibulation 188.

3. Education

Nawal El-Saadawi states that the girls with whom she talked were not aware of the prejudice caused by their circumcision. Some even thought it was good for health and hygiene, especially because, in their language, the word taharah means purification.

Girls believed that the purpose of the surgery was just that: purification. People would not speak ill of them, they would behave and their husbands would not be disgusted. After healing had taken place, they had the inner satisfaction of being purified. Nawal El-Saadawi got the same type of response from her medical students who had never been taught, be it by teachers or by textbooks, the sexual function of the clitoris. No question was ever put in exams on the role of the clitoris. The clitoris was considered unimportant 189.

According to the testimonies gathered by Wedad Zenie-Ziegler from Egyptian women, peasants practice female circumcision because "it has always been done": they do not know why 190. "The idea that it could be a mutilation is foreign to them" 191.

Wedad Zenie-Ziegler adds that women will "make efforts to perpetuate this ritual as long as they do not understand the uselessness of the sacrifice and that it is part of an immense conspiracy aimed at subjecting them to male domination" 192.
 

  Index | Chapter1 | Chapter 2 | Chapter 3 | Chapter 4 | Chapter 5 | Conclusion  

Footnotes:

146  Sukkari: Khitan, op. cit., p. 41.

147  Shaltut: Khitan al-banat, op. cit., p. 89.

148  Gaudio and Pelletier: Femmes, op. cit., p. 59. See Kenyatta, Jomo: Au pied du mont Kenya, Maspero, Paris, 1967, pp. 96-110. Page 98, one reads: "...clitoridectomy - as indeed circumcision among Jews -is a bodily mutilation, viewed somehow as the condition sine qua non for receiving a complete religious and moral education".

149  Cited by Gaudio and Pelletier: Femmes, op. cit., p. 60.

150  United Nations, 26th Session of the Economic and Social Committee, 1029th Plenary
Meeting, July 10, 1958.

151  WHO, 12th World Health Assembly, 11th Plenary Meeting, May 28, 1959.

152  Text of this Report in Terre des Hommes: Les mutilations sexuelles, op. cit., pp. 9-12.

153  UNICEF, Department of Information, Position of UNICEF on Female Excision, Sept. 23, 1980, p. 1.

154  Rapport sur les pratiques traditionnelles, Dakar, 1984, p. 67.

155  Ibid., p. 71.

156  Ibid., p. 7.

157  Vernier, Dominique: Le traitement p‚nal de l'excision en France: historique, in Droit et Culture, Vol. 20, 1990, p. 193.

158  Ibid., pp. 193-194.

159  Giudicelli-Delage: Excision, op. cit., p. 211.

160  Traditional Practices affecting the Health of Women and Children, Report of a Seminar, Khartoum, February 10-15, 1979, p. 4.

161  WHO's position relative to female circumcision, op. cit.

162  WHO, Resolution of the Regional Committee for Africa, Thirty-ninth session AFR/RC39/R9, Sep. 13, 1989.

163  Report on Traditional Practices, Addis Abeba, p. 77.

164  Ibid., pp. 8-9.

165  Law No. 316 (May 27, 1982) forbidding female circumcision, in Recueil International de la Legislation sanitaire , 1982, p. 770.

166  Law of July 16, 1985, forbidding female circumcision, in Recueil international de la Legislation sanitaire, 1985, pp. 1043-1044.

167  This declaration, formulated after Mr. Edmond Kaiser's intervention, states: We ask every physician in a hospital or private practice to be very attentive to the content of the following Declaration. The Central Committee for Medical Ethics of the Swiss Academy of Medical Sciences,

- attentive to the fact that some parents coming from countries where ritual practices of sexual mutilation are performed on women, are trying to get their children admitted into our hospitals orday surgery clinics in order to have those types of surgery performed,
- preoccupied by the fact that one might be tempted to accede to such demands for reasons of misconceived compassion or other badly thought out reasons,
- convinced that such procedures, performed according to customs in opposition to our ethical principles concerning minors unable to judge by themselves, are cruel and degrading, and convinced that they contradict the eminently personal right to physical integrity and as such constitute an infraction automatically prosecuted as serious bodily assault according to article
122, numeral 1, paragraph 2 of the Swiss Penal Code, declares:
- Anyone, be it a physician and practicing in clinical conditions beyond reproach, who performs sexual mutilations on children and teenagers of the female gender, is guilty of serious deliberate bodily assault according to article 122 of the Swiss Penal Code. This person therefore must be prosecuted automatically.
- Moreover, this person violates the fundamental rights of a human being in performing a degrading and cruel procedure on a minor incapable of judgement and who is unable to enforce her own claim to the right to physical integrity.
- Whoever collaborates in such a procedure becomes an accomplice under the criminal law and, generally speaking, is guilty of the violation of human rights.
- The guilty parties and their accomplices, doctors and auxiliary nursing staff, are moreover violating in the most serious way, the moral principles applicable to the exercise of their duties.
(Declaration published in Bulletin des m‚decins suisses, Vol. 64, 1983, notebook 34, 24.8.1983,
p. 1275).


168  Document provided by Dr. Leila Mehra of the WHO.

169  The U.N. Convention on the rights of the Child, a guide, op. cit., p. 351.

170  Meeting of January 12, 1982.

171  Rapport sur les pratiques traditionnelles, Addis Abeba, 1990, pp. 63-68.

172  Al-khifad al-far'uni, ma lahu, wa ma 'alayh , Al-Maglis al-qawmi lil-ri'ayah al-igtima'iyyah & UNICEF-Khartoum, May 1979, pp. 10-11. One can see the same problem in another document against circumcision: Al-Dareer, Asma' 'Abd-al-Rahman: Murshid muharabat al-khifad, Khartoum, 1982, p. 5.

173  According to another source, a decree from the Ministry of Health on June 24, 1959, created a committee in charge of studying female circumcision in Egypt as well as its religious, sanitary and social aspects. This committee then took the decision mentioned above, but the first paragraph should be read as: "It is forbidden for anyone but a physician to practice excision". . . .A fourth paragraph is added: "Excision as it is practiced in Egypt today has harmful consequences for women before and after marriage. As the religious authorities have decided that it is contrary to Islamic dogma to practice total excision of sexual organs, it is not therefore a ritual of Islam" (Report on Traditional Practices, Dakar, 1984, p. 88).

174  Farah: Hayat al-mar'rah, op. cit., p. 39.

175  Magmu'at al-qawa'id al-qanuniyyah 1931-1955, Penal Division, March 28, 1938 Session, vol. 2, p. 824.

176  Qararat Mahkamat al-naqd, Penal Division, March 11, 1974 Session, Judicial Year 25, p. 263.

177  The U.N. Convention on the rights of the Child, a guide, op. cit., p. 351.

178  Vernier: Le traitement p‚nal, op. cit., pp. 198-199.

179  Rapport du S‚minaire des Nations Unies relatif aux pratiques traditionnelles, op. cit., pp. 7 and 10.

180  Gaudio et Pelletier: Femmes, op. cit., p. 53.

181  Ibid., p. 57.

182  El-Saadawi: The hidden, op. cit., p. 33.

183  Ibid., pp. 40-41.

184  Zwang, G‚rard: La fonction ‚rotique, op. cit., p. 275.

185  El-Saadawi: The hidden, op. cit., p. 41.

186  Rapport du S‚minaire des Nations Unies relatif aux pratiques traditionnelles, op. cit., pp.10-11.

187  NOCIRC Newsletter, Vol. 5, No. 2, 1991, p. 3.

188  Rapport du S‚minaire des Nations Unies relatif aux pratiques traditionnelles, op. cit., p.9.

189  El-Saadawi: The hidden, op. cit., pp. 34-35.

190  Zenie-Ziegler: La face voil‚e, op. cit., pp. 62-63, 72.

191  Ibid., p. 137.

192  Ibid., pp. 137-138.