If You Prick Me

20 April 2011 14:43 | Articles, Constitutional, International

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If You Prick Me:
The American Academy of Pediatrics’ Female Genital Cutting Policy Turnabout

By Brianna Lennon^*

Read Prof. Patricia A. Broussard’s Response: First, Do No Harm

I. INTRODUCTION

The surgical modification of a woman’s genitalia is a widely practiced tradition in many non-Westernized parts of the world.¹ Commonly referred to as female genital cutting or mutilation, or simply female circumcision,² the procedure is highly stigmatized in Western culture as a violation of human rights,³ leading to bans of the procedure in a number of countries.⁴ However, laws prohibiting female genital cutting often fail to reflect the cultural values of the affected populations, who may support the ritual.⁵ As a result, individuals in countries who practice female genital cutting often disregard or violate their jurisdiction’s laws.

Over time, practicing populations have imported female genital cutting (“FGC”) to Western countries previously unfamiliar with FGC. In response, these countries have outright banned FGC, driving it underground. In the United States, for example, federal law criminalizes any citizen that “knowingly circumcises, excises, or infibulates⁶ the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18.”⁷ As a result, doctors have seen an increase in immigrant families transporting their female children to their home country to obtain FGC and then returning to the United States.⁸

In an effort to dissuade parents from taking their children to countries with more extreme forms of FGC and untrained physicians, the American Academy of Pediatrics (“AAP”) proposed a policy statement on FGC in April 2010 to amend United States law to permit “ritual nicks” on female minors.⁹ After significant pressure from human rights groups,¹⁰ the AAP retired the statement one month later and emphasized that the “intention [of the AAP] is not to endorse any form of [FGC and] . . . it is important that the world health community understands the AAP is totally opposed to all forms of . . . [FGC].”¹¹ However, the May 2010 proposal may not have been completely misguided; in fact, understanding the AAP’s rationale in drafting the policy may be one of the most important steps towards eradicating FGC. As feminist anthropologist Janice Boddy wisely advised, “understanding [the FGC] practice is not the same as condoning it” and, indeed, eliminating the procedure can only occur if “we understand the contexts in which it occurs as much as its medical sequelae.”¹²

This Note explores the arguments supporting and opposing a full ban on FGC and the cultural, bodily, and legal consequences of those views. In addition, this Note emphasizes the idea that cultural understanding is an integral part of successful and responsible public policy-making by challenging the reader to view the AAP’s advocacy of a ‘ritual nick’ not as an acceptance of the procedure, but as recognition of the complexities of FGC.

II. BACKGROUND OF FEMALE GENITAL CUTTING

A. What is FGC?

The term “female genital cutting” is used to refer to four distinct types of surgical modification. The types range in degree of physical invasiveness and are classified as (1) clitoridectomy, or removal of the clitoral hood, with or without removal of all or part of the clitoris; (2) excision, or full removal of the clitoris and part or all of the labia minora; (3) infibulation, or removal of part or all of the clitoris, labia minor and majora, and stitching of the vaginal opening; and (4) less extreme procedures, including pricking, piercing, or incision of the clitoris or labia.¹³

The most practiced of the four – Type II Excision – occurs in a number of African, Asian, and Middle Eastern countries¹⁴ while extreme Type III Infibulation is most practiced in African populations, though this type accounts for only 10 percent of all FGC procedures.¹⁵ In an attempt to measure the real frequency of FGC worldwide, the World Health Organization has documented the frequency of FGC in practicing countries, finding that, among women ages 15 to 49, “[i]n seven countries the national prevalence is almost universal, (more than 85%); four countries have high prevalence (60–85%); medium prevalence (30–40%) is found in seven countries, and low prevalence, ranging from 0.6% to 28.2%, is found in the remaining nine countries.”¹⁶ Still, the vast majority of practicing women experience less radical cutting, including “cases where girls’ genitals were ‘nicked’ but no flesh removed.”¹⁷

No matter the degree of modification, these procedures can have a profound physical and psychological impact on women, as FGC can cause extremely negative side effects, including “excessive bleeding, severe [lifetime] pain, and emotional trauma” from the ritual cutting, as well as infections, birthing difficulties, and death.¹⁸ Shocking to human rights advocates, some females experience these side effects at an extremely young age, as “[o]ne of the notable trends in global FG[C] today is the progressive lowering of the age at which girls undergo the practice.”¹⁹ In Egypt, for example, nearly all girls are subjected to FGC between 5 and 14 years old, while in Yemen, the procedure is performed before the girl is two weeks old.²⁰ These two countries represent the variation on the type of FGC and the age of the female between cultures, which makes it difficult to categorically support or reject the practice. In both countries, populations practice Types I, II, and III of FGC, which means that women may be subject to extreme physical trauma at a very young age.²¹

B. Why is FGC practiced?

Often, families are motivated to cut their daughters because of social, economic, and political forces that outweigh the extremely harmful consequences of FGC.²² For example, practitioners argue that FGC ensures a woman’s marriageability, serves as a coming-of-age ritual, and subdues unwanted sexual desire.²³ However, FGC is also deeply rooted in cultural, communal, and even religious environments and it is these complexities that require exploration. It is important to recognize, as well, that these complexities are not unique to FGC-practicing nations. Indeed, coming-of-age rituals, expressions of the male and female identities, and aestheticism, though diversely articulated across societies, are universal elements of cultural identity. As a result, FGC is not only a physical experience, but an integral part of identity, as well. This philosophy must be taken into account in efforts to eradicate FGC because eliminating the practice forces communities to let go of deeply entrenched elements of culture, which can be traumatic, difficult, and upsetting.²⁴

The history of FGC is mottled with speculation, but there is no dispute that it was first documented in Egypt in the second century B.C.²⁵ Popular throughout the Egyptian culture well into the slave trade era of the fifteenth and sixteenth centuries, Type III infibulation was encouraged practice to make female slaves from African countries more profitable, as the procedure ensured that the women would not become pregnant.²⁶ The elite also viewed the ownership of infibulated slaves as a status symbol²⁷ and the procedure itself “increased [slaves’] value, by increasing their status” among potential buyers.²⁸ These infibulated slaves, primarily of non-Muslim African origin,²⁹ were traded into the largely Islamic Arabian, Egyptian, and Persian slave markets.³⁰ The proclivity of traders to raid African countries for slaves not only introduced FGC to formerly non-practicing populations,³¹ but, more importantly, disseminated the Muslim faith across the continent.³² The contemporaneous spread of both Islam and FGC has led to an implicit association between the two.³³ However, the practice is not formally “condoned by Orthodox Islam,” despite the fact that “those populations practicing [FGC] have regularly interpreted it as being in keeping with the traditions of the Islamic faith.”³⁴

This history clarifies the foundation of FGC, but it does not adequately explain the modern continuation of the practice. Indeed, FGC is today a deeply rooted tradition and, often, communities know little of its origins.³⁵ Still, historic justifications may persist as, in countries like Egypt, women are seen as “more masculine” or unprepared for marriage if they remain uncut.³⁶ Nevertheless, discrepancies among practicing populations regarding the age of the cut female, the type of FGC performed, and the cultural experiences suggest that FGC is practiced for a variety of reasons.

Practicing individuals often view FGC as necessary to maintaining a woman’s purity and ensuring that she be seen as a woman – not a child – in the surrounding community and the rituals that accompany the physical cutting often exemplify those underlying values.³⁷ For example, often in Muslim areas, FGC is a very personal event, performed on young girls to support the ideals of female modesty and virginity.³⁸ In the populations that “see FGC as a rite of passage into adulthood,” cohorts of girls are cut during a single ceremony to foster communal relationships and celebrate the responsibilities of womanhood.³⁹ These communities believe that FGC empowers⁴⁰ women and “produces moral individuals who may be included in an adult community.”⁴¹

More recently, cultural importance has been supplemented by the view of FGC as an aesthetic enhancement, akin to breast augmentation in Western countries.⁴² Such a view suggests that FGC can be a fashion statement, performed to increase the sexual attractiveness of a woman.⁴³ In most communities in which FGC is practiced, sexuality is seen in a different light than in the Western culture; indeed, “women derive their sense of feminine sensuality not only from heterosexual relationships but also from the cultural support and the validation provided by non-sexualized bonding with women.”⁴⁴ In this context, FGC is embedded in these cultures’ attitudes about attractiveness and, as in almost all cultures, “FGC is an important measure of status.”⁴⁵

The FGC tradition contributes to a fierce sense of cultural identity in practicing communities and “practitioners have attached important symbolic qualities to [FGC and] . . . attest to its significance in defining and reinforcing ethnicity.”⁴⁶ As a result, recognizing that FGC is an integral part of a woman’s life and her society must be a necessary component of efforts to reduce or fully eliminate the practice.⁴⁷ Indeed, rather than flatly banning the practice, the focus must be on educating communities about the physical and emotional harm FGC inflicts upon women as well as establishing a new cultural identity that no longer punishes women for remaining uncut.⁴⁸ Indeed, successful methods of combating FGC involve a concerted attempt to “[u]nderstand[ ] the ways in which a community consensus in favor of FGC is sustained”⁴⁹ and create alternatives to the practice that preserve the cultural traditions it embodies.⁵⁰ Ignoring these elements will increase the chance of backlash against any legal attempts to eliminate FGC because communities will fail to understand or respect their government’s regulation of the practice.

C. What is the current law?

In the United States, performance of FGC on minors has been completely banned since the mid-1990s for a variety of reasons.⁵¹ Emerging from state activism in North Dakota and Minnesota, Congress outlawed underage FGC under the Federal Prohibition of Female Genital Mutilation of 1995 (“FPFGM”).⁵² The official policy rationale for that law was that FGC “is ‘carried out by members of certain cultural and religious groups within the U.S.’ and . . . often has adverse effects on a woman’s physical and psychological health.”⁵³ By 2004, the American Medical Association – and the medical community as a whole – had worked to pass similar bans in fifteen states.⁵⁴ Foreign laws had addressed FGC much earlier,⁵⁵ placing a tremendous amount of global pressure on practicing countries to ban it, as well.⁵⁶

Beyond prohibiting FGC on minor children, American federal law also recognizes FGC as a basis for refugee status in the United States.⁵⁷ The law does not, however, persecute individuals who take their children abroad to receive FGC, though that has been a criticism since its passage in 1997.⁵⁸ Nor does it punish practitioners who cut consenting adult females.⁵⁹

The justification for banning FGC in the United States mirrors the rationale employed in the global community. Indeed, most human rights groups see FGC as reflective of deep-rooted inequality between the sexes, and constitut[ing] an extreme form of discrimination against women.”⁶⁰ In addition, supporters of the ban note that “[t]he practice also violates [children’s and women’s] rights to health, security and physical integrity of the person[ and] the right to be free from torture and cruel, inhuman or degrading treatment.”⁶¹ Lastly, human rights groups argue that FGC is associated with a number of negative health risks that far outweigh the ritualistic or communal significance of genital cutting.⁶² However, cultural pragmatists warn that “[e]motional charges and symbolism combined with an overwhelming emphasis on individualistic assumptions about the body, lead critics to insist that . . . [FGC] be designated a crime against women.”⁶³ Indeed, it is this empathizing spirit that led to Congress’ adoption of the FPFGM in 1996,⁶⁴ and, in fact, led to their disregard of the cultural history of FGC.⁶⁵

III. THE AMERICAN ACADEMY OF PEDIATRICS’ POLICY ON FGC

The American Academy of Pediatrics (“AAP”) has recognized FGC as a major medical issue since 1998 when its first official policy statement was issued “oppos[ing] all forms of FG[C].”⁶⁶ The AAP agreed with the World Health Organization’s and American College of Obstetricians and Gynecologists’ condemnation of FGC, finding the practice to be unnecessary and, in some cases, life-threatening.⁶⁷ Nevertheless, even while advocating a ban on FGC, the AAP encouraged cultural sensitivity, instructing its members to educate themselves on the types and complications of FGC and gain awareness of “the cultural and ethical issues associated” with the practice so that they could approach patients compassionately.⁶⁸ As a result, the AAP, strongly opposed to FGC, recommended that physicians refuse to inflict these procedures on women, but to temper this refusal with a culturally-sympathetic explanation and education for their patients about the risks of FGC.⁶⁹

This policy statement stayed in effect until April 26, 2010, when the AAP decided to respond to its members’ misgivings about the effects of completely criminalizing FGC.⁷⁰ According to the AAP, physicians who had educated themselves on the cultural significance of FGC were legitimately concerned that “parents who [were] denied the cooperation of a physician [would] send their girls back to their home country for a much more severe and dangerous procedure or use the services of a non-medically trained person in North America.”⁷¹ In response, the AAP’s new policy statement reflected its members’ suggestion to allow physicians to perform – at the request of a child’s parents – a “ritual nick . . . [that] is not physically harmful and is much less extensive than routine newborn male genital cutting.”⁷² Such a nick, they argued, would foster trust between immigrants and the American medical system, prevent parents from subjecting their children to more aggressive and unsafe FGC, and “play a role in the eventual eradication of FGC.”⁷³ It appeared that the AAP had finally made the important distinction between extreme types of FGC and less intrusive or damaging types and realized that the strict ban in place may not be sensible in some cases.⁷⁴

A bevy of backlash followed the April 2010 policy statement, however, and opponents accused the AAP of starting down a slippery slope towards full legitimization of FGC.⁷⁵ Human rights activists likened the practice to wife beating, slavery and child abuse, all of which are illegal in the United States and those guilty of such crimes are granted no latitude under the law for any cultural sanctioning of their actions.⁷⁶ Opponents also attacked the AAP’s attempt at ethnic sensitivity, arguing that the policy exhibited “‘a shocking lack of understanding of a girl’s fundamental right to bodily integrity and equality.’”⁷⁷ Indeed, the AAP itself admitted that it relied on anecdotal evidence to support the theory that a ritual nick would satisfy FGC-practicing patients; however, the organization noted that such substitutions have helped reduce FGC in other countries.⁷⁸ As a result of the backlash and political pressure, the AAP retired the new policy statement nearly one month after its instatement and reaffirmed the 1998 statement that advocated a blanket ban on all FGC.⁷⁹

IV. COMMENT

The intense criticism of the American Academy of Pediatrics’ first attempt to put forth valid reasons for why the current ban on FGC could be loosened is indicative of a deeper cultural struggle in the United States.⁸⁰ FGC remained a mystery to most Americans until the mid-1980s when laws began addressing the new practice that had been imported from Africa, Asia, and the Middle East.⁸¹ Prior to this large-scale recognition, however, Western rhetoric had already framed the FGC debate as a war against female equality.⁸² Indeed, women’s rights advocates demonized the practice and portrayed African women “as victims who made ‘incorrect’ choices because they were burdened by the patriarchy of their societies.”⁸³

These efforts to eradicate FGC were, naturally, met with hostility among African and Middle Eastern communities that saw the practice as integral to a woman’s life and livelihood,⁸⁴ but as opposition to this unfamiliar ritual grew, so too did the number of publicized anecdotes of women who had undergone extreme FGC in their home country and felt free enough to speak out about their experiences.⁸⁵ Clearly, these women had the right to voice their hatred of the centuries-old practice and their stories received an outpouring of support from the Western world, who had never encountered such procedures. Further, because of this exposure, political pressure mounted to establish total prohibition of FGC and legislative bans spread across Europe and the United States.⁸⁶

As Western countries prohibited the procedure, they also began inflicting demands on FGC-practicing countries’ governments to take an active role in eradication.⁸⁷ These pressures, however, failed to account for the cultural tradition tied into FGC and instead cast judgment on practicing communities, which has detrimentally impacted eradication efforts. The implication that Western culture knows better than African culture is a pervasive message of the FGC ban.⁸⁸ As a result, the American prohibition is viewed as a paternalistic law that prohibits FGC without regard for the procedure’s significance in a woman’s life and practitioners are unlikely to respect the confines of the prohibition.⁸⁹ The AAP, in its April policy statement, attempted to accommodate immigrants who wanted to honor their cultural traditions in a medically safe and unobtrusive way. Unfortunately, the hostile response to the policy, and its subsequent retraction, not only prevented medical professionals from helping girls to avoid unsafe FGC procedures,⁹⁰ but also increased the risk of unintended backlash to the prohibition.

A. The Unintended Consequences of Prohibition

The United States’ ban on FGC for minor children, though well-intentioned as a child abuse protection, fails to “[exercise] care . . . to protect [non-Western] values and interests that are at stake” when discussing FGC.⁹¹ As a result, cultural pressures are overlooked by American policy makers that encourage full legal bans of FGC, without considering the consequences of their actions.⁹²

These bans can push FGC into an unsafe, underground environment in which women lose any access they might have had to medical care due to fear of legal prosecution.⁹³ Indeed, American doctors who have encountered FGC warn policy makers that it is “‘naive to think [FGC-practicing immigrants] don’t have some equivalent of a Jewish mohel,’ or person who performs a circumcision” in pockets of communities in the United States.⁹⁴ These bans also do nothing to address a parent who chooses to send his or her child back to their native country – where sanitation may be shoddy and health hazards rampant – to have the procedure performed.⁹⁵

These consequences are reminiscent of the backlash caused by criminalizing abortion, which – like FGC – did not disappear simply because it became illegal in many countries.⁹⁶ Indeed, despite severe restrictions and outright bans, “[o]f the 40 to 60 million abortions that take place annually, at least 20 million are performed under unsafe, illegal conditions . . . [, m]illions suffer permanent physical injuries, and at least 78,000 women die.”⁹⁷ These outcomes are parallel to the number of women that are permanently disfigured or killed as a result of FGC⁹⁸ and, though the motivation for performing an abortion compared to that of FGC is markedly different, the analogy does illustrate the potential, and often realized, effects of legislating without considering the needs of the community that such a law will impact the most. In reality, the best solution to reduce, and eventually eliminate, both of these procedures will arise when “legislatures . . . consider the major reasons why women seek [them]” in the first place.⁹⁹ In the context of FGC, this means formal recognition of the societal pressures on uncut women, a concerted effort at educating populations of the side effects of the procedure, and encouragement of cultures in pursuing alternative rituals to replace the harmful and intrusive genital cutting.¹⁰⁰

Further, prohibition can help solidify FGC in a native culture, rather than eliminate it. As African and Middle Eastern immigrants settle into the United States, it is often difficult to simultaneously retain cultural values and successfully assimilate into American culture.¹⁰¹ In addition, other community members may feel that those who forgo FGC in compliance with the law have relinquished the tradition of their homeland, accusing them of acting “American” and forgetting about their true cultural identity.¹⁰² As a result, “prohibition may actually reinforce FGM as a tie to a former country or culture . . . [and the] rite [may] become more powerful and sacred simply because it is outlawed.”¹⁰³

The AAP’s policy statement, as stated earlier, reflects openness to cultural sensitivity, which opponents argue serves as an excuse for legal lenity. This belief – that there can be no exceptions or relaxation of the statutory prohibitions on FGC – has held firm in the United States and abroad, in some cases sabotaging efforts to incrementally reduce FGC through cooperation with practicing cultures.¹⁰⁴

In the Netherlands, for example, in 1997, the government and local medical community had learned of African immigrants that had “circumcised themselves in often unhygienic and harmful circumstances because, while they could not afford the cultural alienation of not being circumcised, the Dutch medical and social workers denied them assistance with the procedure.”¹⁰⁵ To prevent future harm to women who were subjected to these back-alley FGC procedures, the Welfare, Health and Culture Ministry proposed that doctors be allowed to perform a ritual nick, similar to that proffered by the AAP in 2010.¹⁰⁶ Predictably, the proposal did not become formal Dutch policy, as human rights advocates claimed that “official approval of the Dutch compromise would have set a dangerous precedent, reconfirming the subjugation of women.”¹⁰⁷ However, such a concession would have also set a precedent of cooperation between anti-FGC nations and practicing communities, encouraging trust¹⁰⁸ and reflecting Western respect for African culture.¹⁰⁹

In addition, a decade before the AAP policy outcry, a hospital in the United States had attempted a similar compromise, but it too failed to come to fruition.¹¹⁰ Harborview Medical Center in Seattle, Washington faced the issue of FGC in the Western world head on and, by “listen[ing] to the women [who requested that both their sons and daughters be circumcised], heard them say that the circumcisions would take place with or without the doctors’ participation.”¹¹¹ As a result, the hospital entered into a respectful discourse with these families and proposed that its doctors “would perform a ‘simple, symbolic cut’ amounting to a mere ‘nick’—enough to draw blood, with no tissue removal or subsequent scarring.”¹¹² Though the ritual nick was clearly not as extreme as other forms of FGC,¹¹³ the immigrants who participated in the conversation were satisfied by the compromise and intended to opt for the procedure.¹¹⁴ Like the Dutch proposal, however, anti-FGC sentiments killed the possibility of the ritual nick procedure in the United States, as well.¹¹⁵

Again, the unraveling of such a groundbreaking policy most likely “denied some [immigrant] girls . . . the possibility of living a life free of the physical and emotional devastation caused by the traditional circumcision practiced in their community.”¹¹⁶ Indeed, the FGC culture had been receptive to a much less harmful form of genital cutting, but instead of embracing that victory and seeing the compromise as a means towards full eradication,¹¹⁷ human rights advocates came down hard on the possibility of medical tolerance of FGC. Ten years later, the AAP attempted to reignite that compromise after so much progress had been made in reducing FGC both in the United States and abroad. The incredibly short-lived proposal advanced the identical reduction effort and moral stance against FGC iterated in previous policy positions, yet the addition of a cultural compromise was still too extreme for many anti-FGC advocates, despite the possible benefits to women at risk of being cut.

IV. CONCLUSION

Though twenty African nations¹¹⁸ have adopted explicit legislation to criminalize FGC, the practice continues amongst populations that are ignorant or inattentive of the law.¹¹⁹ The rates of FGC in some of these countries has dropped over time as education increases in many of these countries, but the cultural tradition of FGC is still very much alive and the group pressure placed on women who choose not to experience FGC can be overwhelming.¹²⁰ In certain communities in Uganda, for example, uncircumcised¹²¹ women face social stigma and are not allowed to collect food for their family, take part in community meetings, or interact with certain family members.¹²² These social handicaps, as well as degrading comments from other women in community and even their husbands, drive adult women to undergo FGC to fit in.¹²³

Indeed, any action taken without addressing the deep roots and identities attached to FGC will not be as effective as those that take cultural differences into account.¹²⁴ As a result, advocates of eradicating FGC within these countries are undeniably convinced that education and public awareness of the dangers of FGC procedures are truly the only agents for change.¹²⁵ Many grass roots and nongovernmental organizations have embraced that idea, entering into FGC-practicing communities to create alternative cultural rituals that exclude genital cutting while retaining the coming-of-age or femininity traditions deeply engrained in the community.¹²⁶ These cultural modifications, combined with concerted efforts to increase education among young women in these nations, do more to stop the proliferation of FGC than any top-down governmental action.¹²⁷ Though formal condemnation of FGC clearly shows a symbolic statement of policy, the real success will come from community involvement and a discourse that begins with respect for the culture. Framed in that light, the AAP took a bold step in proposing a compromise on such a controversial issue and its policy should not discounted without adequate consideration of the potentially positive effects of the change.

References ( returns to text)

J.D. 2011 University of Missouri
School of Law, M.P.P. 2010 Truman School of Public Affairs, and special
thanks to Professor Paul Litton who provided valuable feedback.
ELIMINATING FEMALE GENITAL MUTILATION: AN INTERAGENCY STATEMENT 1 (2008) (“Between 100 and 140 million . . . women in the world are estimated to have undergone [FGC], and 3 million girls are estimated to undergo [FGC annually].”)
This Note will refer to the permanent surgical modification of a female’s genitals as “female genital cutting” (“FGC”). There are a number of titles attached to this practice, but this term is “an accurate, nonpoliticized description of the practice.” ELIZABETH HEGER BOYLE. FEMALE GENITAL CUTTING: CULTURAL CONFLICT IN THE GLOBAL COMMUNITY 25 (2002).
Patricia A. Broussard, The Importation of Female Genital Mutilation to the West: The Cruelest Cut of All, 44 U.S.F. L. Rev. 787, 787 (2010).
Boyle, supra note 2, at 2-5. Boyle notes that pressure from the global community pushed the legal outlawing of FGC on practicing countries in Africa, who were unprepared or unwilling to accept the ban. Id. at 4.
Id. at 1-2 (noting that Egypt has outlawed FGC, but there a number of communities in the country that still actively practice it).
Infibulation is the third most extreme of the four types of FGC and involves the removal of part or all of the external female genitalia and stitching or narrowing of the vaginal opening. See Razor’s Edge: The Controversy of Female Genital Mutilation, IRIN WEB SPECIAL DOCUMENTARY, March 2005, available at http://www.irinnews.org/ pdf/in-depth/FGM-IRIN-In-Depth.pdf.
18 U.S.C. § 116 (2006). Congress also attempted to amend this law through the Girls Protection Act of 2010 by adding a section criminalizing American citizens that “knowingly transport a person in foreign commerce for purpose of [female genital cutting].” H.R. 5137, 111th Cong. (2010).
Tracy Clark-Flory, Saving Girls from Being Cut, SALON.COM, April 27, 2010, available at http://www.salon.com/life/broadsheet/2010/04/27/female_genital_mutilation_bill.
Lynn Harris, Our Daughters Should Not be Cut, SALON.COM. Jan. 24, 2010, available at http://www.salon.com/life/feature/2010/01/24/fgm_in_america/index.html.
Bonnie Erbe, U.S. Doctors Wrong on Female Genital Mutilation Among Immigrants, U.S. NEWS & WORLD REPORT, May 11, 2010, available at http://politics.usnews.com/opinion/blogs/erbe/2010/5/11/us-doctors-wrong-on-female-genital-mutilation-among-immigrants.html. Erbe makes it very clear that she believes the United States is “so overly sympathetic to Asian and African cultures that still practice mutilation that we don’t want to ‘offend’ them by making their followers adhere to the same laws the rest of us here must abide by.” Id. Though the premise of her idea is true, legislating without regard to culture is not blindly justice-driven, but ignorant and perilous. Policy-makers must at least acknowledge the African and Asian reverence of FGC in order to create laws that will be followed and effective.
See Dena S. Davis, et al., Policy Statement: Ritual Genital Cutting of Female Minors, 125 PEDIATRICS 1088 (2010); News Release, Am. Acad. of Pediatrics, American Academy of Pediatrics Withdraws Policy Statement on Female Genital Cutting (May 27, 2010) (on file with author).
Janice Boddy, Body Politics: Continuing the Anticircumcision Crusade, 5 MED. ANTHROPOLOGY Q. 15, 16 (1991).
See Razor’s Edge, supra note 6, at 42; U.S. DEP’T OF HEALTH AND HUMAN SERV., FEMALE GENITAL CUTTING: FREQUENTLY ASKED QUESTIONS (2009).
Razor’s Edge, supra note 6, at 4. Most specifically, the nations of Djibouti, Somalia, Sudan, Egypt, Ethiopia, Kenya, Mali, Mauritania, Niger, Nigeria, and Senegal. Id.
ELIMINATING FEMALE GENITAL MUTILATION, supra note 1, at 5.
Id. at 4-5, 29. In general, these statistics can be deceiving because the prevalence and type of FGC practice can fluctuate widely across ethnic populations even within the same country. Id. at 4.
Id.
Zsaleh E. Harivandi, Invisible and Involuntary: Female Genital Mutilation as a Basis for Asylum, 95 CORNELL L. REV. 599, 603 (2010). Often, family members will “hold a girl down for the procedure and then bind her legs together for several weeks as she heals.” Id.
Id. at 3; See also U.S. DEP’T OF HEALTH, supra note 13, at 1 (positing that FGC may be performed on younger girls to hide the practice from authorities or because younger girls cannot fight back).
U.S. DEP’T OF HEALTH, supra note 13, at 1.
U.S. DEP’T OF STATE, YEMEN: REPORT ON FEMALE GENITAL MUTILATION (FGM) OR FEMALE GENITAL CUTTING (FGC) (2001); U.S. DEP’T OF STATE, EGYPT: REPORT ON FEMALE GENITAL MUTILATION (FGM) OR FEMALE GENITAL CUTTING (FGC) (2001).
For a summary of the physical and psychological consequences of FGC, see ELIMINATING FEMALE GENITAL MUTILATION, supra note 1, at 11.
U.S. DEP’T OF HEALTH, supra note 13, at 2.
These cultural traditions in no way validate the practice of FGC, but if human rights advocates truly want to effectuate a change, they need to recognize that a flat ban on the practice will create a cultural void that communities need to fill. For a discussion of the difficulty in balancing tradition and human rights, see Alexi Nicole Wood, A Cultural Rite of Passage or a Form of Torture: Female Genital Mutilation from An International Law Perspective, 12 HASTINGS WOMEN’S L.J. 347 (2001).
Boyle, supra note 2, at, 27 (noting that some historians believe “FGC is rooted in the Pharaonic belief in the bisexuality of the gods,” as mirrored by humans, who carry the female soul in the tip of the penis and the male soul in the clitoris, making the act of “[c]ircumcision . . . essential for boys to become men; and girls, women.”)
Id. at 28 (As the practice spread, it “diminish[ed] to clitoridectomy . . . rather than infibulation.”) There is some dispute as to whether slave traders’ practiced infibulation to prevent pregnancy, but there is evidence to suggest it. ESTHER K. HICKS, INFIBULATION: FEMALE MUTILATION IN ISLAMIC NORTHEASTERN AFRICA 26 (1996).
Boyle, supra note 2, at 28.
HICKS, supra note 26, at 27.
Id. at 26.
Id.; see also Boyle, supra note 2, at 28. Because Islam forbids the enslavement of Muslims, Islamic Arabs needed to find other communities to tap for the slave trade. Id. As the trade expanded, so did the proliferation of FGC into these African countries. Id.
Some African communities were practicing Type I and II forms of FGC before the introduction of Islam or infibulation. HICKS, supra note 26, at 27. This likely supports the notion that FGC was also a way to control a woman’s body and her sexuality. Boyle, supra note 2, at 27.
Boyle, supra note 2, at 28.
HICKS, supra note 26, at 27-28.
Id.
Boyle, supra note 2, at 28.
Id. at 28-29 (supporting the theory that women are of greater value and must have the male soul removed). See supra, note 25.
Asha Mohamud, Samson Radeny, & Karin Ringheim, Community-Based Efforts to End Female Genital Mutilation in Kenya: Raising Awareness and Organizing Alternative Rites of Passage in FEMALE CIRCUMCISION: MULTICULTURAL PERSPECTIVES 75, 76 (Rogaia Mustafa Abusharaf ed., 2006); Aud Talle, Female Circumcision in Africa and Beyond: The Anthropology of a Difficult Issue in TRANSCULTURAL BODIES: FEMALE GENITAL CUTTING IN GLOBAL CONTEXT 91, 96-97 (Ylva Hernlund and Bettina Shell-Duncan eds., 2007).
Id. at 29-30. It is important to remember, however, that the practice was not borne out of Islam. Id. See also Imad-ad-Dean Ahmad, Female Genital Mutilation: An Islamic Perspective, 2000, MINARET OF FREEDOM INSTITUTE, available at http://www.minaret.org/fgm-pamphlet.htm.
Id. at 30-31. In these communities, boys are circumcised around the same time and in the same manner to initiate them into adulthood, as well. Id.
U.S. DEP’T OF HEALTH, supra note 13, at 2.
Talle, supra note 37, at 98.
Fadwa El Guindi, “Had This Been Your Face, Would You Leave It as Is?” Female Circumcision Among the Nubians of Egypt in FEMALE CIRCUMCISION: MULTICULTURAL PERSPECTIVES 27, 32-35 (Rogaia Mustafa Abusharaf ed., 2006).
Id. at 32; see also Boyle, supra note 2, at 31.
Id. at 35.
Id. at 36-37; see also Guindi, supra note 42, at 32 (stating that, in an interview with a group of Nubian women, “one woman looked at me and crisply said: ‘circumcision makes a woman nice and tight. The man finds great pleasure in tight women, unlike Cairo women whose vaginas are wide enough for four men to enter together.’”)
Rogaia Mustafa Abusharaf, Introduction: The Custom in Question in FEMALE CIRCUMCISION: MULTICULTURAL PERSPECTIVES 1, 7-8, 9 (Rogaia Mustafa Abusharaf ed., 2006) (noting that “these rites initiate new roles and expectations for young women . . . [and] guarantee the strength of the group.”)
Mohamud, Radeny, & Ringheim, supra note 37, at 75.
Boyle, supra note 2, at 105 (explaining that communities in both Egypt and Tanzania practice FGC and have negative perceptions of women who refuse FGC in compliance with the countries’ legal bans).
Nafissatou J. Diop and Ian Askew, Strategies for Encouraging the Abandonment of Female Genital Cutting: Experiences from Senegal, Burkina Faso, and Mali in FEMALE CIRCUMCISION: MULTICULTURAL PERSPECTIVES 125, 137 (Rogaia Mustafa Abusharaf ed., 2006).
See generally Mohamud, Radeny, & Ringheim, supra note 37, at 75-103.
African immigrants fight against FGC in the United States by encouraging public awareness and communication among the African community even before any enacted American law, see Linda Burstyn, Female Circumcision Comes to America, ATLANTIC MAGAZINE, Oct. 1995, available at http://www.theatlantic.com/magazine/archive/1995/10/female-circumcision-comes-to-america/6051/5.
Elaine M. Chiu, The Cultural Differential in Parental Autonomy, 41 U.C. DAVIS L. REV. 1773, 1801 (2008).
Carol M. Messito, Regulating Rites: Legal Responses to Female Genital Mutilation in the West, 16 Buff. Jour. Pub. Int. Law 33 , 35-36 (1998) (quoting 18 U.S.C. § 116 (2006)).
Natalie J. Friedenthal, It’s Not All Mutilation: Distinguishing between Female Genital Mutilation and Female Circumcision, 19 N.Y. INT’L L. REV. 111, 128 (2006).
Id. at 126-27. Friedenthal notes that the World Health Organization condemned FGC in 1982 and the General Assembly of the International Federation of Gynecology and Obstetrics “captured that conviction in a United Nations Resolution” in 1994. Id. Further, Australia, Belgium, Canada, Cyprus, Denmark, France, Italy, the Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland, and the United Kingdom all have formal laws denouncing the practice. Id.; see also Fact Sheet: Female Genital Mutilation Legal Prohibitions Worldwide, CENTER FOR REPRODUCTIVE RIGHTS, Feb. 2009, available at http://reproductiverights.org/en/document/female-genital-mutilation-fgm-legal-prohibitions-worldwide.
See Boyle, supra note 2, at 1-5. Indeed, eighteen African countries have instituted bans on FGC; despite this, the practice is still very much alive in those regions. Center for Reproductive Rights, supra note 55. For a more comprehensive look at laws against FGC in the United States and abroad, see Messito, supra note 53.
8 U.S.C. § 1101 (2006); see also In Re Kasinga, 21 I. & N. Dec. 357, 357 (Dep’t of Justice June 13, 1996) (finding that the law allows female refugees to bring a claim for persecution if they are threatened with FGC).
See supra note 5; see also Messito, supra note 53, at 38.
Messito, supra note 53, at 38.
ELIMINATING FEMALE GENITAL MUTILATION, supra note 1, at 1.
Id.
Harivandi, supra note 18, at 602-03.
L. Amede Obiora, Bridges and Barricades: Rethinking Polemics and Intransigence in the Campaign Against Female Circumcision, 47 CASE W. RES. L. REV. 275, 284 (1997).
Boyle, supra note 2, at 3; Messito, supra note 53, at 39-43. Messito notes that the bill’s Senate sponsor, Harry Reid, learned of FGC from a broadcast on CNN that showed a young girl’s circumcision in Egypt. Id. Upon watching the segment, Reid “was horrified by the procedure and inspired to work for its abolition.” Id.
18 U.S.C. § 116(c) (2006) (stating that “no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that person, or any other person, that the operation is required as a matter of custom or ritual.”)
Committee on Bioethics, Female Genital Mutilation, 102 PEDIATRICS 153, 153 (1998).
Id.
Id.
Id. at 156.
Committee on Bioethics, Ritual Genital Cutting of Female Minors, 125 PEDIATRICS 1088, 1092 (Retired, May 2010). Interestingly, this position paper also began labeling the surgical modification of female genitals as female genital cutting, instead of the more loaded term, female genital mutilation, which was used in the 1998 paper. Id.
Id.
Id.
Id.
Id. The AAP revised its recommendations to reflect opposition to only those types of FGC “that pose risks of physical or psychological harm.” Id.
Pam Belluck, Group Backs Ritual ‘Nick’ as Female Circumcision Option, N.Y. TIMES, May 6, 2010, available at http://www.nytimes.com/2010/05/07/health/policy/07cuts.html. Opponents also questioned the amount of blood that would satisfy parents, implying that the ritual nick would eventually morph into more extreme FGC. Id.
Id.
Belinda Luscombe, Has a U.S. Pediatrics Group Condoned Genital Cutting?, TIME, available at http://www.time.com/time/health/article/0,8599,1988434,00.html.
Id.
American Academy of Pediatrics, AAP Publications Reaffirmed and Retired, 126 PEDIATRICS 177, 177 (2010); Sora Song, Pediatricians Group Withdraws Statement on Female Circumcision, TIME, May 27, 2010, available at http://healthland.time.com/2010/05/27/pediatricians-group-withdraws-statement-on-female-circumcision.
For example, in 1990 when FGC had just come into American public discourse, well-educated individuals chastised anthropologists that had tried to ascertain the cultural foundations of the practice, claiming they had been “soft on this ritual . . . because [they] ha[ve] come to sympathize so well with the folk view.” Melvin Konner, Mutilated in the Name of Tradition, N.Y. TIMES, Apr. 15, 1990, available at http://www.nytimes.com/1990/04/15/ books/mutilated-in-the-name-of-tradition.html.
Boyle, supra note 2, at 3-5.
Id. at 45-6.
Id. at 46. Not surprisingly, African women were appalled by this characterization. Id. at 47.
Id. at 47 (noting that “[a]n uncircumcised girl is unmarriageable and would bring undying shame to her and her family . . . [and h]er life would be intolerable, as she would be taunted by friends and relatives wherever she went.”)
Razor’s Edge, supra note 6, at 6, 16, 18-19.
Messito, supra note 53, at 36-55 (1998); Boyle, supra note 2, at 45-59. Indeed, the United Nations helped to define FGC as a harmful practice, launching subcommittees in the late 1970s to investigate the practice, “despite explicit opposition from some women in practicing cultures.” Id. at 52.
Boyle, supra note 2, at 3 (citing Nabil Meghalli, Circumcision Persists as Insult and Injury to Femininity, DEUTSCHE PRESSE-AGENTUR, Sept. 12, 1994; Shyam Bhatia, The Cut that Tore a Veil of Tears, OBSERVER, Oct. 9, 1994; Judy Mann, When Journalists Witness Atrocities, WASH. POST, Sept. 23, 1994).
Messito, supra note 53, at 75.
See Hope Lewis, Between Irua and “Female Genital Mutilation”: Feminist Human Rights Discourse and the Cultural Divide, 8 HARV. HUM. RTS. J. 1, 19-21 (1995).
See Lynn Harris, Female Genital Mutilation in the U.S.: No Compromise, SALON.COM, June 2, 2010, available at http://www.salon.com/life/feature/2010/06/02/fgm_genital_nick.
David Sinacore-Guinn, Making the Case: U.S. Ban on Female Circumcision Raises Threat of Further Harm, PARK RIDGE CENTER FOR HEALTH, FAITH AND ETHICS, available at http://www.parkridgecenter.org/Page131.html.
See Messito, supra note 53, at 38.
Id. at 71-74. See also Chiu, supra note 52, at 1805 (noting that a 16 year old Somali girl living in the United States that “wants to be a mature and beautiful woman, Somali style[ and] . . . show solidarity with other African women” and has “review[ed] the medical literature and discover[ed] that the surgery can be done safely, hygienically and with no great effect on her capacity to enjoy sex” cannot legally undergo FGC and thus will likely go to an unlicensed practitioner or her home country for the procedure.)
See Chiu, supra note 52, at 1803-04; Stephanie Chen, Pressure for female genital cutting lingers in the U.S., CNN, May 21, 2010, available at http://articles.cnn.com/2010-05-21/health/america.female.genital.cutting_1_ female-circumcision-cultural-beliefs-somali-immigrant?_s=PM:HEALTH.
Id.
Janessa L. Bernstein, Note, The Underground Railroad to Reproductive Freedom: Restrictive Abortion Laws and the Resulting Backlash, 73 BROOK. L. REV. 1463, 1481 (2008).
Id. (citing CENTER FOR REPRODUCTIVE RIGHTS, THE BUSH GLOBAL GAG RULE A VIOLATION OF INTERNATIONAL HUMAN RIGHTS (2000), http://www.crlp.org/pdf/pub_bp_bushggr_violation.pdf). For an in-depth analysis of the harmful consequences resulting from an outright ban on abortion, see Jocelyn E. Getgen, Reproductive Injustice: An Analysis of Nicaragua’s Complete Abortion Ban, 41 CORNELL INT’L L.J. 143 (2008).
Wood, supra note 24, at 348-49.
Bernstein, supra note 96, at 1502; Obiora, supra note 63, at 377-78.
ELIMINATING FEMALE GENITAL MUTILATION, supra note 1, at 13.
Messito, supra note 53, at 74-75.
Chen, supra note 94.
Messito, supra note 53, at 71.
See Obiora, supra note 63, at 285-86; see also Doriane Lambelet Coleman, The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 DUKE L. J. 717 (1998).
Obiora, supra note 63 at 285 (citing Henrietta Boas, Problem of Female Circumcisions in Holland, JERUSALEM POST at Features, May 10, 1992).
Id. The Ministry’s report claimed that this minor form of FGC would help to prevent women from undergoing more extreme cutting, such as infibulation. Id.
Id. (citing Guido de Bruin, Women: Dutch Government Ends Debate on Circumcision Proposal, INT’L PRESS SERV., Nov. 11, 1992)
Trust was also a motivator in the AAP’s proposal. See Davis, supra note 11, at 1092.
Obiora, supra note 63 at 286.
Coleman, supra note 104.
Id. at 736-737.
Id. at 737.
Id. (“the suggested procedure was not even a circumcision, which itself ensured that what would have been done to girls was much less drastic than what routinely is done to boys in that hospital, and in hospitals across the country.”)
The compromise was particularly interesting because the hospital was working with Somali immigrants, who typically practice infibulation and were clearly okay with the much less invasive ritual nick. Id. at 737, n.62; Fran P. Hosken, Female Genital Mutilation: Strategies for Eradication, First Int’l Symposium on Circumcision, March 1-2, 1989, available at http://www.nocirc.org/symposia/first/hosken.html.
Coleman, supra note 104, at 737.
Id.
Davis, supra note 11, at 1092 (“There is reason to believe that offering such a compromise may build trust between hospitals and immigrant communities . . . and play a role in the eventual eradication of FGC.”)
These countries are Benin, Burkina Faso, Central African Republic, Chad, Côte d’Ivoire, Djibouti, Egypt, Eritrea, Ethiopia, Ghana, Guinea, Kenya, Mauritania, Niger, Nigeria, Senegal, South Africa, Tanzania, Togo, and Uganda. See Uganda bans female genital mutilation, BBC NEWS, Dec. 10, 2009, available at http://news.bbc.co.uk/ 2/hi/africa/8406940.stm; Center for Reproductive Rights, supra note 56.
For a very recent example, see Uganda: Law Not Effective in Fighting FGM, NEW VISION, Dec. 11, 2010, available at http://allafrica.com/stories/201012130073.html.
See Richard M. Kavuma, Female circumcision: Challenges Remain Despite New Law, OBSERVER, Jan. 13, 2010, available at http://www.observer.ug/index.php?option=com_content&view=article&id=6805:feature-female-circumcision-challenges-remain-despite-new-law&Itemid=96 (Ugandan newspaper).
Because the cultural tradition views both male and female circumcision as equivalent, often women who have not undergone FGC are refered to as “uncircumcised.” Id.
Id.
Id. See also Razor’s Edge, supra note 6, at 21 (describing how girls in communities of Kenya feel stigmatized if they do not undergo FGC); Chen, supra note 94 (though the United States has a clear ban on FGC, immigrants of some African communities still practice it because the cultural tradition is so strong and other immigrants can pressure mothers into circumcising their girls).
Boyle, supra note 2, at 3-4.
See Only Educating Girls Can Help Eradicate Female Circumcision, NEW VISION, Feb. 5, 2009, available at http://www.newvision.co.ug/D/8/459/670476 (Ugandan newspaper); How to eradicate FGM, CITIZEN, Dec. 11, 2010, available at http://thecitizen.co.tz/editorial-analysis/19-editorial-comments/6256-how-to-eradicate-fgm.html (Tanzanian newspaper).
See Mohamud, Radeny, & Ringheim, supra note 37, at 87-93.
Note that “although 97 percent of the women in Egypt are circumcised, the Egyptian health minister has banned the practice.” Boyle, supra note 2, at 153.