'Circumcision' or 'mutilation'? Voluntary or forced excision? Extricating the ethical and legal issues in female genital ritual.

• Author: Nnamuchi, Obiajulu

1. INTRODUCTION II. RECONSTRUCTING THE DEBATE III. CULTURAL RELATIVISM AND FEMALE GENITAL RITUAL IV. FGM: AN EVIL OR SOMETHING ELSE? V. SOME ETHICAL CONSIDERATIONS VI. HUMAN RIGHTS PROHIBITIONS: ARE THEY SUFFICIENTLY ANTIDOTAL OR WARRANTED IN ALL CASES? VII. CONCLUSION I. INTRODUCTION

   The genesis of the procedure most commonly described as female circumcision (FC) or female genital mutilation (FGM) is rooted in antiquity. (1) The ritual has existed for centuries amongst different cultures but is currently practiced primarily in twenty-eight African countries, parts of the Middle East, and increasingly among immigrant populations in Europe, North America, and Australia. (2) The World Health Organization (WHO) estimates that between 100 and 140 million girls and women have undergone the procedure, (3) out of which 91.5 million are in Africa. (4) Of these 91.5 million girls and women, more than half are in three countries ranking amongst the highest in prevalence rates: Egypt, Ethiopia, and northern Sudan. (5) Desegregated figures show that the prevalence rates vary dramatically amongst practicing nations, from as high as 96% in Egypt to as low as 0.6% in Uganda. (6) Globally, around two million girls are at risk of undergoing the procedure annually. (7) Because FGR is inextricably embedded in the cultural ethos of practicing nations, outsiders' attempts to reconceptualize the practice as unnecessary, unjustifiable, or harmful have proved largely unfruitful. Even in countries that have been successfully goaded into criminalizing the procedure, often by external forces, compliance has not matched expectation. (8) For centuries, the practice, like many others that are culture-driven, was not a subject of international concern--that is, until recently. There is a growing consensus that the influx of Africans and Arabs into Western countries contributed to international involvement in what, heretofore, was generally regarded as a legitimate cultural practice worthy of deference and respect. With escalating conflicts and internal strife in many African and Middle Eastern countries, an appreciable number of inhabitants are forced to seek refuge in Western countries. One of the more visible results of this tragic exodus was that the aftermath of a cultural ritual, once confined to distant lands, began to be seen in social welfare offices and health clinics in Europe and North America. And this, not surprisingly, raised some eyebrows.

   In a move reminiscent of the scramble for the partition of Africa, commentators of various disciplines are, with the publication of each new "finding," edging closer to unanimity in their strident denunciation of the ritual. (9) Their condemnations fall under three broad strands: the ritual is extremely hazardous to the physical and mental health of affected girls and women; the ritual violates their human right to bodily integrity insofar as fully informed consent was neither sought nor obtained; and the ritual perpetuates gender inequality and subjugation in practicing communities. (10) Although there are stark differences between FGM and FC, there has been a tendency to lump them together and proceed, on the basis of the conflation, to prescribe the same response to the two procedures: eradication. (11)

   This Article is a repudiation of the one-size-fits-all approach. It argues that owing to several factors, particularly the unbridled passion surrounding the subject, several important issues have fallen prey to intensely misguided pejoration, mischaracterizations, and distortions; yet, extricating and coherently realigning these issues in a meticulously nuanced way is a key component of resolving what is already a highly-charged polemic. Unlike previous discourse on the subject, this Article will not defend either procedure, will not lump the procedures together, and, as has previously been achieved, perhaps unwittingly, will not contribute to further obfuscation of the subject. (12) Instead, this Article has two objectives: first, to classify and rank the procedures on morally informed grounds, and second, based on the ranking, to argue for different perspectives on, and treatment of, the two procedures. Along the same trajectory, this Article considers the issues surrounding voluntary FGR and explores whether sanction is a morally defensible response. An argument for a distinction between forced and voluntary FGR as a basis for apportioning sanction is made and defended.

   This Article consists of seven sections. Following the introduction, Part II reconstructs the debate as to whether FGR is a legitimate cultural practice or a human rights violation, and it sets forth the major arguments. Part III delves into, and debunks, the moral relativist argument regarding FGR. Part IV seeks to determine whether FGM is evil. A foray into the theory of evil, the section draws critical distinctions between FC and FGM and explains why the distinctions are of paramount moral importance. Part IV also concludes that FGM is evil, and thus, among the issues related to the betterment of women worldwide, FGM deserves more attention. Part IV seeks to determine whether FGM is evil. A foray into the theory of evil, the section draws critical distinctions between FC and FGM and shows how the distinctions are of paramount moral importance. The section argues that FGM (real cases and without consent) is evil, deserving of priority attention in the overall scheme of attending to the overall wellbeing and betterment of women while, at the same time, maintaining that FC, even when performed on nonconsenting women, is distinctly not evil. (13) Part V addresses whether there are ethical bases for opposing bona fide cases of FGM. Relying on the principles of beneficence and non-maleficence, in addition to ethics of care, Part V returns an affirmative response. Part VI examines the antidotal adequacy of the existing human rights framework. Because human rights norms, in their current incarnation that prohibit FGR fail to draw a distinction between consenting adults and those forced to undergo the procedure and fail to recognize the difference between FC and FGM, Part VI argues that the framework is defective. Because, in their current incarnation, human rights norms prohibiting female FGR fail to draw a distinction between consenting adults and those forced to undergo the procedure, and fail to recognize the difference between FC and FGM, Part VI argues that the framework is defective. Part VII asserts that education and awareness campaigns are more productive paths to eradication than criminalization.

2. RECONSTRUCTING THE DEBATE

   Before plunging into the tasks of this Article, some basic knowledge about the nature of FGR seems instructive. What follows is the story of a Somali-British teenager, reported to have undergone the procedure a few years ago. (14) Lali was three when her family migrated to London from war-tom Somalia. (15) Like her contemporaries, Lali learned English quickly and adjusted to her adoptive country. (16) But her happiness was short-lived. At age eleven, Lali was taken to an undisclosed location to be circumcised, together with other Somali girls whose mothers, like Lali's, had flown a cutter from their country of origin to circumcise their daughters. (17) Upon arriving at the house, Lali was wrestled to the floor by a group of women which, to Lali's dismay, included relatives, family friends, and her own mother. (18) Once pinned to the floor, and without the aid of an anesthetic, the cutter was invited to perform the ritual. (19) The pain was excruciating and quite difficult to bear, especially for a young girl. (20) As Lali later recalled: "They held me down, and when the woman began cutting[,] I screamed, so my friend's sister put her hand tightly over my mouth." (21) More disturbing, as Lali further explained: "I had known her and these other women all my life, and now they were doing.., this[ to me]." (22) For girls like Lali, the scar left by the betrayal of people divinely assigned to her stewardship can have serious psychological consequences and, possibly, medical complications.

   Revulsion at this sort of experience is at the root of widespread clamor for the eradication of FGR. Yet, there seems to be little, if any, agreement on the basic elements of the procedure. It remains unsettled whether the appropriate descriptive term for the procedure is FGM or FC. Even its medical and psychological consequences are mired in controversy. (23) Nonetheless, if meaningful progress is to be made in the march toward proscription of the practice, factors disrupting reasonable and effective dialogue on these issues need to be unraveled. Distortions must be fleshed out and meaningfully analyzed; otherwise, progress toward containment may prove unsustainable.

   Not long ago, the term FC was used universally, including in medical literature. However, its use is increasingly discarded in favor of the term FGM, a preference based upon the idea that the term FC falsely analogizes FGM to male circumcision, thereby confusing two remarkably distinct practices. (24) The term FGM is meant to more aptly capture the gruesome and harmful nature of the procedure. (25) More importantly, the new term recasts the procedure more concretely as a human rights violation, thereby providing a more robust ground upon which to campaign for its abolition. (26) Casting FGM as a human rights violation removes the practice from the arena of culture (and its attendant legitimacy) and makes it more susceptible to objective moral criticism. The term FGM was adopted in 1990 at the third conference of the Inter-African Committee on Traditional Practices Affecting the Health of Women and Children (IAC), an international private organization based in Dakar, Senegal. (27) Since 1991, when WHO recommended that the United Nations (U.N.) adopt the term FGM, (28) its use has spread like wild fire. The new term is embraced not only...