Paul Mason, Family & Children's Lawyer (and Former Commissioner for Children of Tasmania), discusses children's right to bodily integrity and the context of that right in the history of social progress.
In 2003, the Queensland Law Reform Institute arrived at the conclusion that the consent of parents to medically unnecessary circumcision of a boy [is] an assault.
An assault is [one of]:
The uninvited physical touching of a person without [his or her] consent.
The threatened use of force against a person—not in the sense of [military action] or something like that, [but rather] force as in a touching [about which] the other person can do nothing.
The fact that a [kind] of assault has been happening for a long time does not [inherently] make the assault legal; take, for instance, family violence by men against women: As recently as 1973 in Australia, a man [who assaulted and injured] his wife [was acquitted] by a Victorian county court judge who described [the assault] as [merely] “quite rougher than usual handling”.
[However], times have changed [since then]; 1973 was a [very] long time ago. I expect that [progress] accelerates as it proceeds, and I would hope that a court looking at [the question of circumcision] in the future in the English common law system would not only take into account what has happened before [as is customary in law], but would also look at new obligations [and expectations] that have been created in society about the sanctity of the person—about the right to bodily integrity, which is enshrined in:
The United Nations's Declaration of Human Rights (1948)
Either that [concept] has meaning or it doesn't. I think [that] increasingly, common law courts [will] be invited to accept that [it's] a fundamental principle of law that applies not only to adults but also to children.
One thing [about the issue of domestic violence] that I come across a lot is people saying:
That's illegal, isn't it?
These are young mothers [and fathers] in [their 20s and 30s], and they say:
Well, we don't hit our children because [that's just something] you're not allowed to do!
I'm afraid I do go around [correcting that stance]:
It's OK to hit children, because the law says you can.
and people are surprised about that. So, in some ways, culture is ahead of the law; social pressure and peer expectation between parents is ahead of the law. So, it may be that the male circumcision rate is dropping at a faster rate than the judges and the lawyers are [learning to appreciate in law the rights of children], which I hope is true.
There have been mainly private family law cases (like the Bott[sic?] case) where one parent wants [a child circumcised and] the other doesn't. The courts [in such cases] have generally [blocked the circumcision], but the reasons have been very contorted and have basically come [down] to saying:
Well, we want the child to maintain a relationship with both parents; we want both parents to remain involved with the child.
If the procedure [were allowed], that may harm the prospects of the child having a [healthy] relationship with both parents.
which I think is a good valid reason, but a bit of a squid. The courts haven't been, as I say, challenged to make a [solid] decision about the validity of the parental consent [for the circumcision of a completely healthy child].
One of the documents [at which] I hadn't looked very closely before I came into this job was:
The United Nations's Convention on the Rights of the Child
which was approved by the General Assembly of the United Nations in 1989. Every country except 2 on the planet have signed up to that convention:
- The United States of America
So, those 2 countries have more in common than either of them probably like to think.
[That] convention is an aspirational document. It's been [adopted] by a lot of countries [with] different religious and historical backgrounds; there are [adoptive] countries [where there is the practice of] sharia law, which would seem to be [in conflict with] some of the aspirations in the document, but even those countries have agreed that we should aim for a planet where children are respected [as individuals] and not abused.
Article 12 relates to the voice of children—that children, because they are human beings, should be listened to. If they say they want free ice cream, we have to say “Well, there [are] limits to how much ice cream you can have”, but generally [children] don't ask for free ice cream; when you ask them about a serious question [on issues] like:
- Public transport or planning
[children] will give you serious answers from their perspective, and their voice helps us as a community. Part of that voice is their right to their own belief systems; if a child believes in the Tooth Fairy or Santa Clause, we must respect that belief. If they choose to believe in the Blessed Virgin Marry, or the Prophet Mohammed, or any other source of spiritual comfort or belief, we respect that, and [this principle is] also enshrined in the convention:
We must respect the religious beliefs of the child—not of the child's parents!
You have to wonder, really, whether a child is ever born [as]:
- a Muslim
- an Animist
- a Daoist
- a Buddhist
- a Christian—a Lutheran, a Protestant, or a Catholic, [etc.]
- [a Jew]
They become those things over time—as they become adults. Again, part of [protecting a child's voice] is giving [him or her] the voice to choose [his or her] religion.
Marking your child's body according to one religion may have the tendency to limit that choice; it may mean that [the child feels] unable to choose a different religion from [his or her] parents when [he or she grows] up, and that limits [his or her] freedom of religion, [a freedom] which is enshrined not only in [the Children's Convention], but also [in] the Declaration of Human Rights. [In addition], the Children's Convention refers to rights that are specific to children:
They have a right to education.
They have a right to safety in the home (and I've referred to that in terms of physical punishment in the home).
[They] have a right to protection from cruel and degrading treatment.
[They have a right to] protection from traditional practices which are harmful—that's a particularly relevant one [with regard to the issue of male circumcision].
Article 26 says that states' parties must take steps to eradicate traditional practices that are harmful to children; that [tenet] was originally developed in the drafting of the convention [in order] to relate to the cutting of girls' genitals, but another article in the Children's Convention—and in [the Declaration of] Human Rights—talks about the need to abolish discrimination—[and] discrimination between boys and girls is, [I think], one of the strongest arguments that intactivists can use [to argue against male circumcision]:
If girls are entitled to certain protection, so are boys.
The history of the last 40 years [of fighting] discrimination has been [focused on] the subjugation of women by men. [However], the principles are not there for the benefit of women, [but rather] for the benefit of people.
Women don't want to be put in a better place than men; women want to be equal with men, treated equally, given an equal voice, and women—[whom] I've met—want men to have the same voice as women. I think that's a strong tool for intactivists to use:
What is good enough for the goose is good enough for the gander!