The question, I think, isn't whether there should be a crime of
circumcision as such. Rather, the question is whether the normal crime of
mayhem, assault, battery, or child abuse - whatever label a particular
jurisdiction would use for cutting off a part of an infant's body - should have
as a defense (1) categorical parental prerogative, at least when it comes to
circumcision ("I'm the parent and I can cut off certain parts of the child's
body for any reason I choose"), (2) religious parental prerogative ("I'm the
parent and I can cut off certain parts of the child's body if I think God wants
me to"), or (3) medical parental decision ("I'm the parent and I can make
medical decisions for the child, within broad parameters, even if that includes
cutting off certain parts of the child's body, based on my good-faith estimate
of the costs and benefits of a procedure").
I'm inclined to think that defense 2 is improper (for some of the reasons Chip
gives), that defense 1 is proper only for actions that are highly unlikely to
affect future bodily function (which male circumcision might or might not
qualify, and which ear piercing does qualify as), and defense 3 is proper for
actions that are fairly likely to affect future bodily function. And the
analogy to self-defense helps explain why defense 3 is proper even though it
treats medical reasons as better than all other reasons, including religious
ones.
Eugene
From:
[email protected]<mailto:[email protected]>
[mailto:[email protected]] On Behalf Of Vance R. Koven
Sent: Thursday, July 05, 2012 11:05 AM
To: Law & Religion issues for Law Academics
Subject: Re: Medical reasons for action vs. religious reasons for action
I'm not sure who the "we" is in Eugene's hypothesis, but nobody is proposing to
add anything to defenses, since it's the existence of the offense that is under
discussion. Nobody contests that the crime of murder, or attempted murder,
exists with a rather precise definition. There is as yet no crime of
circumcision. Moreover, in looking at the two situations, it's obvious that the
defense of self-defense (which derives from the same "unalienable right" to
life to which the crime of murder speaks) contains a mental state within its
definition, as does the crime of murder. If there were a similar mental state
in the "crime" of circumcision (e.g. removing someone else's foreskin with the
intent to do grievous bodily harm), then one might say that the "normal"
circumcision would never violate the law, and if the perpetrator did have the
requisite intent, claiming religious justification might well not suffice as a
defense.
Of course, a legislature creating a crime of circumcision could decide to allow
medical exemptions but not to allow a religious one (RFRA arguments, anyone?
Would Lukumi apply?), but I still think that would be merely a trap for the
unwary defendant who fails to allege medical motives.
On Thu, Jul 5, 2012 at 10:46 AM, Volokh, Eugene
<[email protected]<mailto:[email protected]>> wrote:
Here's an analogy from another area in which the normal rule -
one person may not alter or injure another's body without permission - is
relaxed: self-defense.
Say Vic is doing something that Don perceives as blasphemous,
but that might also be dangerous to Don or Don's property. (E.g., say Vic is
burning a Koran and saying things that might reasonably lead Don - a Muslim -
to think that Vic will imminently injure Don, or that the fire will spread to
Don's property.) Vic attacks Don using nondeadly force and injures him.
If Don reasonably believed that Vic was about to injure Don,
and hit Don to prevent that, Don is not guilty of any crime, by reason of
self-defense. But say that the objective circumstances are the same, so that
Don could have reasonably believed that Vic was about to injure him, but Don
did not actually sincerely believe this. Instead, he says that he attacked Vic
because he thought God wanted him to attack Vic. Then Don is guilty of
assault; no self-defense defense is available (and I take it that we'd agree
that no other defense should be available to him). This rule does not treat
religious reasons for hitting Vic worse than secular reasons generally. But it
does treat all reasons for hitting Vic worse than one favored secular reason -
the perception that Vic poses an imminent danger to Don's person or property.
If I'm right on this, then I all think that there's no
violation of the norm of equal treatment when we add another reason for
allowing one person to alter or injure another's body: that the actor is the
subject's parent and has a medical reason for ordering a surgery to the
underage child. That the parent has a right to alter the child's body for
medical reasons doesn't mean he has a right to alter the child's body - even
when the objective circumstances seem the same - for nonmedical reasons,
including religious ones.
Eugene
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