Abbie J. Chessler: Justifying the Unjustifiable: Rite v. Wrong, Introduction

Buffalo Law Review, Volume 45: Pages 555-613, 1997.

The baby's screams fill the entire building: … The end of his penis is bright red!! There is blood on the diaper!! He is crying pitifully, high-pitched wail that I have never heard out of him before.¹

Never will I forget the sound as scissors separated the flesh between my legs from my body. It haunts me.²

[I]t's perverse to excuse one cruelty by invoking a worse one. The genitals of both sexes should be left intact, without encouraging a "dreadfulness competition between" assaults on little girls or boys.³

INTRODUCTION

Guests began arriving around 2 p.m., all bearing gifts of joy.⁴ The mood was celebratory as men, women, and children, from as far north as Haifa, came to witness the sacred ceremony. Eight days⁵ before a Jewish boy was born and the time had finally arrived for the covenant to be formed between the infant and God; the boy was to be circumcised.⁶ Shortly after all the guests had arrived, they were ushered into the tiny living room. The room, hot from the Israeli sun, was filled with chatter and excitement.

As the mohel⁷ entered, silence spread across the house. The Sandak⁸ held the child while the mohel evoked an erection from his tiny penis and then placed it in pincers. The pincers kept the foreskin separate from the rest of the penis. A short prayer was recited and then the mohel cut the foreskin with the stroke of a small knife. A piercing scream echoed throughout the house and into the bright beautiful summer day. No anesthesia was used to numb the pain as the baby was cut. His penis began to bleed profusely as he wailed helplessly. The mother too cried while the guests, incongruously, shouted and clapped their hands in celebration.

At the same time this newborn girl entered into his covenant with God, a little girl in Africa was undergoing her ritual circumcision:⁹

The little girl, entirely nude, is immobilized in the sitting position on a low stool by at least three women. One of them with her arms tightly around the little girl's chest; two others hold the child's thighs apart by a force, in order to open wide the vulva ... The traditional operator says a short prayer ... Then she spreads on the floor some offerings to Allah ... Then the old woman takes her razor and excises the clitoris. The infibulation follows ... The little girl howls and writhes in pain ... The operator wipes the blood from the wound, and the mother as well as the guests verify her work ...¹⁰

She like the little boy, just took part in her rite of passage.¹¹ Both youngsters were now initiated into adult society and considered full members of their religious and cultural order. These rites of passage serve "as the chief vehicle to link generations in the transmission of the culture complex[.]"¹² Acceptance took two barbaric acts of blood fear and agonizing pain. Although both had achieved their rite of passage through similar pain and anguish, a difference persists in the perception of human rights activists and the Western legal world regarding these procedures.

While concerns about female circumcision are at the forefront of human rights law, male circumcision, amazingly, continues to be virtually ignored. Although many activists and writers throughout the world condemn female circumcision, they fail to acknowledge the similarity between male and female circumcision in Western society. This hypocritical condemnation of one form of circumcision, merely because the act is considered "more extreme," demonstrates a basic denial and ignorance of human rights law. There appears to be a "hypersensitivity" to female human rights at the expense of male human rights; this double standard, which accepts and condones male circumcision but condemns female circumcision, makes the concept of human rights meaningless.

This comment examines the similarities and differences between female and male circumcision, arguing that the global community adamantly opposes female circumcision, while neglecting to similarly construe male circumcision. Part I explains the types, history, and procedures of male and female circumcision and the resulting physical and psychological complications. Part II discusses the legal remedies for the eradication of female circumcision and how these legal arguments, as well as other remedies, should be applied to male circumcision. In Part IV and the conclusion, this comment suggests several recommendation for the eradication of male circumcision and the importance of officially recognizing male circumcision as human rights abuse.

References

Rosemary Romberg. Circumcision: The Painful Dilemma xix (1985). Male circumcision is performed routinely; it is the most frequently performed elective operation. Edward Wallerstein, Circumcision: An American Health Fallacy 1 (1980). Eighty-five percent of the world's population is uncircumcised. Earl Jenson, Cruel Ritual, Salt Lake City Tribune., Sept. 18, 1994, at A18. An estimated one out of six males in the world is circumcised. In America, approximately eighty percent of newborn males are circumcised. Roger Highfield, Study Finds Circumcision Doesn't Aid Health, Ottawa Citizen, Apr. 2, 1997, at A8. Circumcision is rare in Europe, China, the Far East, and Central and South America; it is more commonly performed in North and South America, the Near East, Polynesia, Canada and among Muslims of India and Indonesia, Australian Aborigines, various African tribes, and Jewish people throughout the world. John R. Holman et al., Neonatal Circumcision Techniques, 52 Am. Fam. Physician 511 (Aug 1995). "[The United States] is the only `advanced' nation in the world still routinely circumcising most (60%) of its newborn males for non-religious reasons." NOHARMM, a "Circumcision Comparision" [hereinafter NOHARMM Comparison] (information sheet on file with the Buffalo Law Review); see also Laurie Smith Anderson, Routine Circumcision Focus of Reconsideration, Protest, Baton Rouge Sun. Advoc. July 4, 1993. at 9C.
Soraya Mire, A Wrongful Rite, Essence, June 1994, at 42. An estimated 85 to 114 million African women are circumcised. Nahid Toubia, Female Genital Mutilation: A Call For Global Action 21 (1993). In 1995, seventy percent of the thirty million women in Egypt were circumcised. Sarah Gauch, Egyptian Documentary Film Fights Female Circumcision, Plain Dealer, Oct. 24, 1995 at 6E. Currently, two million young women (infants and adolescents) per year are at risk of circumcision. Toubia, supra, at 21; see also Robbie McClaran, Facts about Female Circumcision., Dallas Morning News, May 22, 1994, at 1F. Statistically, this results in five females every minute being circumcised. Benjamin K. Lim, Female Circumcision Remains A Curse, Workshop Says, Reuters, Ltd., (Aug. 31, 1995). However, there is a lack of definitive data as a result of the difficult nature of gathering such statistics, especially when the procedure is illegal in several countries. Toubia, supra, at 22. Female circumcision is currently practiced in twenty-six African countries, a few communities in Asia, and by African immigrants in the Americas, Australia, and Europe. Id. at 21. The procedure is practiced by Muslims, Christians, some animists, and by Ethiopian Jews. Id.; see infra notes 197-200 and accompanying text. Although practiced by these religions it is not a religious requirement. Day One: Scarred for Life. (ABC television broadcast, Sept. 20, 1993); see also Toubia, supra, at 21. The distribution of the practice demonstrates a strong correlation between similar cultures and countries where performed. Id.
NOHARMM Comparison, supra note 1.
The following is a first hand account of a circumcision I attended at Kibbutz Sde Boqer in the Negev Desert of Israel.
Jewish law requires male children be circumcised on the eighth day following birth. This requirement is traced to the Old Testament. Bereshit/Genesis 17:12 reads: And he that is eight days old shall be circumcised among you, every manchild in your generations;" and Vayyiqra/Leviticus 12:2-3 reads: "If a woman have conceived seed, and born a manchild...[a]nd on the eighth day the flesh of his foreskin shall be circumcised." Bereshit/Genesis 17:12, Vayiqra/Leviticus 12:2-3. All biblical references throughout this comment are to the Jeruselem Bible.
Judaism refers to circumcision as Brit Milah or Bris. Bris means "covenant" and milah means "circumcision." The Jewish religion traces the sacred ritual of circumcision to Bereshit/Genesis 17:9-12:

And God said to Avraham, Thou shalt keep my covenant therefore, thou, and thy seed after thee in their generations. This is my covenant, which you shall keep, between me and you and thy seed after thee; Every manchild among you shall be circumcised. And you shall circumcise the flesh of your foreskin; and it shall be a token of the covenant between me and you.

Bereshit/Genesis 17:9-12.
A mohel is an observant Jew trained specifically to perform circumcisions. However a mohel is not medically trained and therefore much controversy surrounds his qualifications for performing this procedure. Romberg, supra note 1, at 51.
Sandak is the Hebrew word for "Godfather" or the one who holds the baby at a circumcision. See New Bantam-Megiddo Hebrew & English Dictionary 165 (6th ed. 1988-89). The grandfather held the child at this particular ritual.
Frequently female circumcision is referred to as female genital mutilation (FGM). For purposes of this comparative analysis, this comment will use the term circumcision, a choice not loosely decided upon. Contrary to the prevailing opinion, the word circumcision is not a misnomer. Although many disagree with this choice of language because male equivalent of female circumcision is often viewed as non-mutilating, an analogy can be, and should be, made between the two acts. The use of the term circumcision draws a parallel between the male and female acts and their cultural and religious justifications. There is extensive literature on female circumcision which criticizes the use of the term circumcision because it is viewed as either "nonmutilating" or the removal of the foreskin should be considered insignificant in light of female circumcision. However, there should be no right to take a child, male or female, against his or her will and remove a body part that is perfectly healthy; this is clearly a double standard. To deny one, and overlook the obvious analogy, is to deny human rights. For differing opinions on terminology, see Robbie D. Steele, Silencing the Deadly Ritual: Efforts to End Female Genital Mutilation, 9 Geo. Immige. L.J. 105,116-118. (1995); Robyn Cerny Smith, Female Circumcision: Bringing Women's perspectives into the International Debate, 65 S. Cal L. Rev. 2449, 2449 n.7 (1992); Hope Lewis, Between IRUA and "Female Genital Mutilation" Feminist Human Rights Discourse and the Cultural Divide, 8 Harv Hum Rts J. 1 (1995).
Hanny Lightfoot-Klein, Prisoners of Ritual: An Odyssey into Female Genital Circumcision in Africa 53 (1989) [hereinafter Prisoners].
Sonya Live: Female Circumcision (CNN) television broadcast, June 30, 1992).
12. Bruno Bettelheim, Symbolic Wounds 69 (1954) (quoting N. Miller, Initiation, Encylopedia of the Social Sciences (1932)). As one author states:
Its a festive, beautiful and intimate family ceremony where--bagels and cream cheese close by--the infant boy loses a foreskin and gains his official religious name. This may strike some people as a tough trade, but thus it has been among Jews for thousands of years.
Paul Karon, Brisful Duty: Mohel Blends Tradition, Technology, L.A. Times, Apr. 28, 1997, at D3.
Lightfoot-Klein writes:

Excision practices can be assumed to date back thousands of years, conceivably to the early beginnings of mankind. Quite conceivable also, circumcisions at some early point in human history replaced human sacrifice as a way of placating hostile forces and spirits. At what period these practices came into conjunction with the obsessive preoccupation with virginity and chastity that today still characterizes Islamic-Arabic cultures is not known, but infibulation clearly appears to be the result of that meeting.

Prisoners, supra note 10, at 27; see also Steele, supra note 9, at 113-115.

Citation:

Abbie J. Chessler, Justifying the Unjustifiable: Rite v. Wrong. 45 Buffalo L Rev 555 (1997), Introduction.

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