Dancing Attendance

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The Mother’s Holiday

In 2015, a divorced mother applied to her daughter’s school, Bembridge Primary School on the Isle of Wight, to be allowed to take her daughter – subsequently referred to by the court as “Mary” – out of school for a week from 9th February to go on holiday.[1]  The school refused: the rules are clear, absence from school is allowed for sickness and unavoidable cause, for a single day’s religious observance, and for exceptional circumstances.  Holidays do not fall into these categories, and the school was quite within its rights, and its obligations to Mary, to refuse the request.  Section 444 of the Education Act 1996 reads,

(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

(1A) If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.

(2)Subsections (3) to (6) below apply in proceedings for an offence under this section in respect of a child who is not a boarder at the school at which he is a registered pupil.

(3)The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school—

(a) with leave,

(b) at any time when he was prevented from attending by reason of sickness or any unavoidable cause, or

(c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs.

(8)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(9)In this section ‘leave’, in relation to a school, means leave granted by any person authorised to do so by the governing body or proprietor of the school.

Nevertheless, the mother took her daughter out of school regardless, and the school contacted the Education Welfare Officer, leading to the local council imposing a fixed fine of £60, which she paid.  Many parents consider these fines – which rise to £120 if not paid within twenty-one days – worth paying in order to benefit from cheaper family holidays.  In the 2015-16 academic year, 147,655 such fines were imposed, raising revenue of £8,859,300.[2]  These statutory fines give parents an opportunity to resolve these cases without going to court, but large numbers of parents refuse to pay them, resulting in some 20,000 prosecutions over the same period.[3]  The courts can impose a maximum fine of £2,500 or a three-month prison sentence.

The Father’s Holiday

At about the same time (the holiday bookings were made on the same day), Mary’s father, Jon Platt, applied to Bembridge Primary School to take his daughter out for a holiday with him from April 12th to 21st, 2015.  Again, quite properly, the school refused (on February 9th) and warned that a fixed penalty notice would apply.  Again, the parent ignored the refusal, and took his daughter to the Disney World resort in Florida.

The school sent a Fixed Penalty Notice Referral Form to the local council’s Education Welfare Officer (EWO), Karen Pothecary, who authorised the issue of the Notice on May 14th, requiring the father to pay £60 by June 4th.  Platt failed to do so and was sent a further Notice, requiring him to pay £120 by June 10th.  When he did not pay this, he was sent a letter before action on July 1st explaining the council’s intention to prosecute.  This time he did react, by email and telephone; the EWO, however, believed that the penalty notice had been correctly applied and proceedings were brought on October 12th in the Isle of Wight Magistrates’ Court.

The Magistrates’ Court Hearing

Platt pleaded not guilty.  The law – given in Section 444(1) of the Education Act 1996 – requires parents to ensure that their children attend school “regularly”, but the word is not defined; there is no specific prohibition in the Act against taking a child out of school for a holiday.  The defence relied on the case London Borough of Bromley v C, [2006] EWHC 1110 (Admin) which concluded that the court should understand “regularly” by taking into account attendance over the whole academic year.  The prosecution argued that the court should only be considering the attendance during the period in question: between April 13th and 24th; there was no attendance during that period and thus the offence was clear.

The Magistrates addressed the question of whether Mary was a “regular attender” at school.  They looked at Mary’s attendance which had been 95% prior to the holiday and was now 90.3% when the holiday was taken into account.  Both figures were within the school’s guidelines of 90-95%, although 90% represents pretty poor attendance; this level of absence, if sustained, will adversely affect a pupil’s academic attainment.  The LA had not established a case that Mary had failed to attend school “regularly”.

The High Court Hearing

The LA appealed, and the case was taken to the High Court.[4]  The question was whether the Magistrates had erred in law by taking into account Mary’s attendance outside of the dates of the holiday.  On 13th May 2016, a Divisional Court of the Queen’s Bench Division decided that the Magistrates had not so erred.  The prosecution also drew attention to the provision of Section 7 of the Education Act which requires,

The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable —

(a) to his age, ability and aptitude, and

(b) to any special educational needs he may have,

either by regular attendance at school or otherwise.

As we shall see, the wording “full-time” here provides a gloss under which the word “regularly” may be interpreted.

By this time, Platt had extended the services of his company, JMP Partnership, which specialises in PPI recovery, to include advice to parents on taking their children out of school during term time.  I’m no lawyer, but I think his interpretation of the law confuses between statute law and the law established by legal precedent.  The cases he relies on do NOT represent binding precedents.  He advises parents that magistrates must take account of a child’s average attendance over the course of an entire academic year (following Bromley) but, as we shall see, this is not binding.  He relies on a case from 1881 which held that where two or more interpretations of a statutory provision are reasonable, the court must choose the one which results in the lesser penalty.  He also argues that because “nobody REALLY knows what ‘regularly’ means, it is too vague to be the basis of any criminal sanction”; the High Court considered this contention but expressed no view upon it.

The Supreme Court Hearing

Again, the LA appealed, this time with the financial support of the Department of Education, and the case was heard by five judges of the Supreme Court, Lady Hale, Lord Neuberger, Lord Mance, Lord Reed and Lord Hughes who were unanimous in their finding.[5]  Hale’s judgment summarised the events thus far, and confined itself to considering the meaning of the phrase “fails to attend regularly”, examining three possible interpretations.  Without a specific definition of the term in the legislation, the task for the court was to determine what the intention of Parliament had been when incorporating the phrase for the first time into the Education Act 1944.  Giving judgment, Baroness Hale looked first at the history behind the legislation.

History

Section 5 of the Elementary Education Act 1870 imposed an obligation on school districts to provide “sufficient amount of accommodation in public elementary schools” for all the children of the district “for whose elementary education efficient and suitable provision is not otherwise made”.  Forcing parents to make their children available for this education was politically sensitive, however, as many parents were constantly moving in order to find work, and some relied on the income provided by their children.  Section 74, therefore, empowered the school boards to make bye-laws (1) requiring parents of children between five and twelve years of age to cause them to attend school, unless there was some reasonable excuse, (2) fixing the times when children were required to attend school, with two exceptions, one of which was for “any day exclusively set apart for religious observance by the religious body to which his parent belongs”, and (3) imposing penalties for breach.

“Reasonable excuse” included that the child was receiving alternative instruction, that he had been prevented from attending by sickness or some other unavoidable cause and that there was no suitable school within reasonable walking distance, which could be up to three miles.

In 1876, Section 5 of the Elementary Education Act prohibited the employment of children under ten, and of those between ten and thirteen who had not achieved an appropriate standard of education; Section 4 for the first time imposed upon parents a duty to cause their children to be educated in the “three Rs” of reading, writing and arithmetic.  Where parents failed to do this without reasonable excuse, local authorities could apply for court orders requiring the children’s attendance.

Section 2 of the Elementary Education Act 1880 required school boards to introduce bye-laws compelling attendance, though they could set their own timetables.  Many boards fixed the time at “the whole time for which the school selected shall be open for the instruction of children of a similar age”.

In 1918, the school leaving age was raised to fourteen and in 1921 the Education Act consolidated the existing duties of parents and local education authorities.  Case law established that a parent was required to ensure his child attended at all times set out in the bye-laws and that an offence could be committed if a child missed a single day of school, regardless of his attendance at other times.

Hale quoted Lord Hewart CJ in Osborne v Martin (1927) 91 JP 197,

It was never intended that a child attending the school might be withdrawn for this or that hour to attend a lesson thought by the parent to be more useful or possibly in the long run more remunerative.  The time-table and discipline of a school could be reduced to chaos if that were permissible.

The Education Act 1944 extended a parent’s responsibility to have his child educated in the three Rs to ensure that he received “efficient full-time education suitable to his age, ability and aptitude, either by regular attendance at school or otherwise”.  The LEA could issue a school attendance order requiring the parent to register the child at a particular school; failure to comply was an offence.  A statutory offence was also committed if a pupil registered at a school “fails to attend regularly thereat”.  Reasonable excuse for absence was replaced by a finite list: absence with leave of the school, sickness or unavoidable cause (affecting the child, not his parents), a day’s religious observance, and the lack of provision within walking distance where no alternative transport was provided.

The Education Acts of 1993 and 1996 consolidated these provisions; Section 7 of the 1996 Act added to the parent’s duty the requirement that the child’s education must be suited to “any special educational needs he may have”.  Section 444(1) preserved the offence committed where a child fails to attend school “regularly”.  It also introduced at s.444(1A) a more serious offence committed when a parent knows his child is failing to attend and has no reasonable explanation for his own failure to ensure attendance.  The circumstances in which absence is tolerated remained the same.

Sections 444A and B contained the provisions for the penalty notices, offering a parent the opportunity to avoid a criminal conviction by paying a fine.  LEAs were required to draw up their own Codes of Practice for administering these rules; these guidelines had become quite relaxed, with schools commonly allowing absences of ten school days a year, but in 2013, Education Minister Michael Gove issued new guidance reminding schools of their legal responsibilities: schools should allow absence only in exceptional circumstances.

The Court’s Interpretation

Hale observed – as I think is evident – that the movement of the law since 1870 had been to consolidate and tighten existing legislation.  Prior to 1944, a parent was liable to conviction if his child missed a day or even half a day when required to attend; case law was concerned with the scope of the statutory exceptions.  Parents are not obliged to use state-provided education – they can home-school their children or pay to have them educated privately – but if they do take advantage of state provision, they must abide strictly by its rules.

Hale resisted the idea that the introduction of the phrase “fails to attend regularly” signified a change in the existing law or a change of direction by Parliament.

The idea that “regularly” meant “at regular intervals” was easily dismissed: this could cover attendance every Monday, or where lateness was consistent; either was clearly far from Parliament’s intention.

Hale objected to “sufficiently frequently”, an interpretation employed or hinted at in some case law, on ten grounds:

  1. It can cover attendance which is not compulsory and for which there are no laws.
  2. It does not meet the intention of the 1944 Act to increase the scope and character of compulsory state education, it is implausible that Parliament should have wanted to relax the existing provision.
  3. It does not meet the intention of the 1944 Act to enhance parental liability.
  4. The exception to allow a child leave of absence “on any day exclusively set apart for religious observance” suggests the intention that a single day’s absence should justify prosecution.
  5. In Section 444(6), dealing with children of parents of no fixed abode, the requirement to attend “as regularly as the nature of that trade or business permits” does not use the word “regularly” to suggest a matter of degree but to indicate that the child should attend as often as he can.
  6. A pupil at a boarding school is expected to attend 100% of the time with no absence; why should the same not be expected of a pupil at a day school?
  7. In Section 444(7A), the absences of excluded pupils are to be measured by the day.
  8. If this were the interpretation intended by Parliament, it is too imprecise upon which to found a criminal offence, “The point is that, on this interpretation, the parent will not know on any given day whether taking his child out of school is a criminal offence”.
  9. (The reason the Secretary of State had intervened in the case) there are strong policy reasons why such an interpretation will not wash: unauthorised absences disrupt the education of the individual child and of the whole class in group learning. Teachers are expected to undertake additional work in enabling the absent pupil to catch up, perhaps to the detriment of the other pupils.  If all pupils in a class are liable to be taken out whenever it suits the parent, structured education becomes impossible.
  10. Finally, it is absurd to imagine that Parliament would have countenanced the removal of pupils during term-time either without authorisation or where authorisation has expressly been refused; “It is a slap in the face to those obedient parents who do keep the rules, whatever the cost or inconvenience to themselves”.

The only possible interpretation, therefore, as Martin Chamberlain QC for the Isle of Wight Council argued, is that the word “regularly”, from the Latin regula = rule, should be understood to mean “in accordance with the rules”.

  • Such a principle, Hale maintained, in conjunction with a “sensible prosecution policy”, such as the use of fixed penalty notices, justifies a situation where a relatively minor breach can lead immediately to criminal liability. The parent has two opportunities to avoid prosecution and a court can use its discretion to discharge the offence.
  • Prior to 1944, there was no objection raised to dealing with unauthorised school absence in this way; it was recognised that the importance of a child’s education justified a strict approach.
  • It is important that legislation which imposes criminal liability should do so in a way which enables everyone to know where they stand; Hale’s interpretation is the only one of the three which satisfies this requirement.
  • A school or governing body is empowered with the discretion to allow a child leave of absence in exceptional circumstances other than sickness and unavoidable cause, but where a school has decided that the circumstances are not sufficiently exceptional, only this interpretation is consistent with the provisions of Section 444(3)(a) and (9).
  • Section 7 of the Act requires a parent to cause the child to receive “full-time” education; that is, for the whole of the time when education is being offered to children like the child in question. Section 444 must be seen to work in harmony with this provision.

Hale concluded that “regularly” means “in accordance with the rules prescribed by the school”, and directed that the case should be returned to the magistrates with a “direction to proceed as if [the father’s] submission of no case to answer had been rejected”.  The consequence of this is that Platt, who has already spent £12,000 on the case, may well be required to pay the council’s costs as well.

Reaction

Needless to say, the decision has split opinion.  Prime Minister Theresa May approved,

What the Supreme Court has done is endorse the current position, which is right, which is that we recognise – and they’ve recognised – the importance of children being in school and getting the most out of their education but also recognise that there may be exceptional circumstances where a child needs to be taken out of school during term time and it’s right that the individual headteacher has that flexibility to make that decision.  I think that is the correct balance.[6]

Shadow education secretary Angela Rayner endorsed her view,

…If all parents took their children out of school in term-time because it was cheaper to get a holiday that way, then it would be chaos in our schools and it would affect all children.[7]

The Department for Education said,

We are pleased the Supreme Court unanimously agreed with our position: that no child should be taken out of school without good reason.  As before, headteachers have the ability to decide when exceptional circumstances allow for a child to be absent but today’s ruling removes the uncertainty for schools and local authorities that was created by the previous judgment.

The evidence shows every extra day of school missed can affect a pupil’s chances of achieving good GCSEs, which has a lasting effect on their life chances.

We will examine the judgment carefully and will update schools and local authorities as soon as possible so they are clear what the judgment means for them.[8]

Perhaps surprisingly, teachers’ groups were more equivocal; Kevin Courtney, general secretary of the National Union of Teachers, said,

Parents generally do all they can to keep children in school and teachers want them to do that.  However there will be occasions when families will have a planned holiday in term time – this can be for a many reasons such as family commitments or parents unable to take leave in the school holidays.

Fining parents is entirely the wrong route to be going down.  Many parents will be able to afford the fine and it will not be a deterrent.

This is yet another example of top-down measures being imposed on schools causing unnecessary tensions between head teachers and families.[9]

This misses the point that the fine is a way of avoiding prosecution; it is also strange that a policy which has been in place for a very long time is only now being questioned by the NUT.

Malcolm Trobe, Interim General Secretary of the Association of School and College Leaders expressed a view more sympathetic to the needs of both children and teachers,

It is vitally important that children attend school as close to 100 per cent of the time as possible.

Research clearly shows that even short breaks can have a detrimental impact on educational attainment.  Holidays should be taken in the 13 weeks that are allocated for that purpose each year, not in term time.

We were pleased that the Supreme Court also highlighted the fact that children missing school can be disruptive.  Teachers have to help these children catch up and the more pupils who are absent the greater the disruption.[10]

Legal commentators have observed that the case will inevitably lead to more prosecutions given that there is now no room for argument over whether a child has attended regularly; hence Hale’s call for a “sensible prosecution policy”.  Others welcomed the decision for establishing absolute clarity and for its fairness to the majority of parents who are prepared to toe the line.  They have called on the Department for Education to update the guidance given to schools as a matter of urgency.  Parents who still wish to withdraw their children for a holiday can do so on payment of a modest charge, which is a policy which may need revisiting.

Platt himself was unrepentant, insisting that he had “no intention” of pleading guilty when the case returns to the Magistrates’ Court and encouraging his supporters to vote out councillors who take a hard line on the issue.  He said,

The issue is no longer if it ever was about term-time holidays, it is about the state taking the rights of parents away when it comes to making decisions about their children.[11]

But again, this misinterprets the legal position, which is that parents have an obligation to ensure that their children receive education and attend school at all of those times during which education is provided for their particular child.  They have the right to take their children out of school and educate them at home or to opt out of the state system and send them to private schools, but they do not have the right, once they have accepted the provision of free state education, to disrupt their children’s education, and that of other children in the school, or to impose on teachers hours of extra work to help their child catch up.  Platt’s unfortunate daughter missed out on twelve days’ schooling in a single term, purely so that her parents could benefit from cheaper holidays.

Jon Platt and his supporters represent a modern breed of parent who has no respect for education, for teachers, for the law.  They teach their children that school doesn’t really matter, and they kid themselves that their children will learn more in a week at Disney World than in a week at school.  The high cost of holidays they complain about is a separate matter which should not be resolved through disruption to children’s schooling.

They run their lives according to what they believe to be their “rights”, with not a thought for what might be their responsibilities: to their children, to their children’s schools, to society more widely.  Rather than work as responsible adults to fulfil their obligations to their community, they are constantly seeking new rights which they can claim have been breached.  For them, free state education is not an extraordinary opportunity, historically and geographically rare, which should be embraced fully and conscientiously; instead, it is yet another entitlement, to be used or abused as they desire.  These are not the sort of parents who will offer their support to their children’s schools, offering to help organise events or outings, to join the PTA, to assist with transport.  Instead, they see the school as an extension of the state, to be challenged and humbled.  The message Platt is instilling in his daughter is “me, me, me” and everyone else be damned.

 

[1] These details are derived from Isle of Wight Council v Platt [2017] UKSC 28

[2] Campbell, P. (2017, April 07). Jon Platt Faces Defeat Over Term-Time Fines Court Battle. Retrieved from http://www.simpsonmillar.c.uk.

[3] Ibid.

[4] Isle of Wight Council v Platt [2016] EWHC 1283 (Admin)

[5] Isle of Wight Council v Platt [2017] UKSC 28

[6] Pells, R. (2017, April 06). Jon Platt case: School leaders welcome Supreme Court term-time holiday ruling. The Independent.

[7] Ibid.

[8] Yorke, H., & Mendick, R. (2017, April 06). Parents who took advantage of cheaper term-time fares prior to Supreme Court ruling could now be prosecuted. The Telegraph.

[9] Op. Cit. Pells, R. (2017, April 06).

[10] Ibid.

[11] Ibid.

Male Genital Mutilation, Part 2

 

Claimed Health Benefits

Amongst the Victorians, the mere presence of the male foreskin was believed to cause epilepsy, paralysis, malnutrition, hysteria, and other nervous disorders.[1]  Words such as “hygiene” and “sanitary” denoted cleanliness of the morals to the Victorians and not of the mind; removal of the foreskin effectively prevented masturbation and thus promoted mental purity.

The concept that circumcision is beneficial to health is not new: Philo of Alexandria (25BC – 50AD) argued that circumcision protected against the “severe and incurable malady of the prepuce called anthrax or carbuncle” (probably the ulcer of primary syphilis) and promoted the cleanliness of the whole body as befitted the consecrated order.[2]  He also recognised that it decreased pride and pleasure, hence enhancing the spiritual persona of the Israelite male.  The Jewish intellectual Moses Maimoinides wrote that circumcision both quiets lust and perfects what is defective morally,[3]

The fact that circumcision weakens the faculty of sexual excitement and sometimes perhaps diminishes the pleasure is indubitable.  For if at birth this member has been made to bleed and has had its covering taken away from it, it must indubitably be weakened.  In my opinion, this is the strongest of the reasons for circumcision.  Jewish men, sexually subdued and readily controlled by their wives, don’t stray into mischief.  The power of his member has been diminished so that he has no strength to lie with many lewd women.

The claimed health benefits for a ritual which clearly has nothing to do with promoting health continue to this day.  There are some medical conditions which may be relieved by the removal of the foreskin:

  • Phimosis – when the foreskin fails to separate fully from the glans. Separation is usually complete by the age of 3, but can be delayed until the age of 5 or later and affects about 1% of men at age 18.[4]  Waiting is usually the best option, but surgery is necessary in a very few cases.  Phimosis is also a complication of partial circumcision.
  • Balanitis and balanoposthitis – inflammation of the glans alone or glans and foreskin can result from poor hygiene, or allergies to soap, washing powders, latex or spermicides in condoms. Yeasts such as candida albicans can flourish in the warm, damp space between the glans and foreskin, particularly where there is a build-up of smegma, a collection of shed skin cells, oils and moisture.  Where inflammation occurs repeatedly, circumcision may be offered although fungicides, antibiotics and steroid creams are the more usual treatment.
  • In adults, an overly tight foreskin which makes sex painful.

There are other conditions which some claim can be avoided through circumcision:

  • Penile cancer – this is a very rare cancer associated with poor hygiene and smoking, and with phimosis and HPV infection. There is little evidence for the claims, and countries with the highest rates of penile cancer – such as the USA – also have high rates of circumcision.  Clearly, cancer cannot develop in a foreskin which has been removed, and amputation of the entire penis would provide complete protection against penile cancer.
  • Cervical cancer – there is some evidence associating circumcision with the more rapid elimination of the HPV virus which can cause genital warts and cervical cancer. Circumcision can thus reduce the time during which the virus can be transmitted.
  • AIDS – the surface of the glans and inner surface of the foreskin contain Langerhans cells which are targeted by the HIV virus; removal of the foreskin reduces the number of these cells and there is some evidence that this can reduce the transmission of HIV. Obviously, amputation of the entire penis would be an even more effective measure.

This evidence amounts to little more than that disorders of the foreskin can be prevented by its removal, a principle which might be applied to any organ of the body, including the brain.  Circumcision also diminishes the pleasure derived from sex and thus diminishes its frequency.

 

Legal Anomaly

Female genital mutilation was specifically outlawed by the Prohibition of Female Circumcision Act 1985.  The Private Members Bill was brought by Marion Roe (MP for Broxbourne), who recalled in 2003 that she had been “called a racist and I was accused of intervening in religious freedoms, cultural traditions and so on”.[5]  At the second reading of the Bill,[6] the Lord Chancellor, Lord Hailsham, offered his view that female circumcision was already unlawful under the Offences Against the Person Act 1861,

I must say this, because I believe that people are beginning to think that this is not against the criminal law.  I can only say that I am quite sure that it is against the criminal law as matters stand.  It may be an argument for the Bill; it may be an argument against the Bill.  But I am simply stating what I believe to be the criminal law at the present time.

He added that a minor cannot give consent, and that the parents, the surgeon, the anaesthetist and the nurses involved in female circumcision would all be guilty.  The proponents of the Bill persisted, however, because they wanted to send a specific message that female circumcision was unacceptable in Britain.  This largely symbolic status of the Act is underlined by the fact that it never resulted in any prosecutions.  In 2003 it was repealed and re-enacted as the Female Genital Mutilation Act, adding an offence of taking a child out of the country for the purposes of procuring FGM and extending the maximum penalty from 5 to 14 years.  Baroness Rendell observed,[7]

The practice is medically unnecessary, extremely painful and poses severe health risks, both at the time when the mutilation is carried out and in later life.  It has no possible physical advantages; is not called for in any religion and is not limited to any religious group.

As Hailsham had, she admitted,

It is unlikely that FGM was ever legal in this country.  Even before the Prohibition of Female Circumcision Act came into force, it could almost certainly have been prosecuted as an offence against the person.  The purpose of the 1985 Act was to remove any uncertainty about the legality of the practice and to make it clear that such a barbaric custom has no place in our society.

The Serious Crimes Act 2015 added a Schedule 2 to the Act which further enabled a court to make a variety of Female Genital Mutilation Protection Orders.  It is difficult to say what the effect of these Acts has been on a practice which had never been common and was already morally unacceptable and contrary to the law.

The 1861 Act had some holes which were closed by the Children and Young Persons Act 1933; this was designed to outlaw the “unnecessary suffering” which might be caused, albeit for benign reasons, by parents and others driven by religious belief.  Under Section 1, a person commits an offence against a child if he “wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement)”.

Although the term FGM describes a wide variety of practices across a wide range of cultures with consequences varying from the minor to traumatic disfigurement and maiming, the successful politicisation of FGM has resulted in the legal systems of western countries grouping all forms together as mutilation and forbidding them by law.  This is partly because all forms of cutting into a girl’s genitals without a medical diagnosis, and without her consent are already illegal under these countries’ legal codes.  Many people would agree that this is the correct approach, though there are some who argue that the more minor forms of cosmetic nicking and piercing should not be outlawed; again, most would agree that if a girl wants to do this to herself, she should wait until adulthood.

However, this is also analogous to the way in which feminism regards all forms of rape, or all forms of domestic violence as of equal severity, as manifestations of the patriarchy, and to be treated in the same way.  When, for example, Justice Minister Ken Clarke dared to suggest in May 2011 that some rapes were more serious than others – in accordance with Labour’s own sentencing guidelines – he provoked a feminist backlash, such as this from Lara Williams, writing in The Guardian,[8]

Through distinguishing “serious” and “less serious” rape, Clarke assumed a perverse gradient of suffering, a warped taxonomy of perceived victimisation.

There is no specific prohibition in English law against male circumcision, nor even a requirement that it should be carried out by medically qualified personnel in sterile conditions, and here as in many countries, such as the United States, where hairdressers and manicurists are regulated, it can be performed by anyone without training and without regulation.

The case of Re J concerned an application by an Islamic father for a specific issues order to enable the circumcision of his five-year-old son which was opposed by the non-Islamic mother.[9]  The procedure was to be performed under general anaesthetic in clinical conditions.  Mr Justice Wall observed that the circumcision of boys for religious reasons was lawful, on the grounds that it was demanded by Judaism and Islam and had become an accepted practice in England, that it could take place on agreement by the parents without consideration of the child’s best interests and, thirdly, that where the parents were in conflict, the decision was the court’s.  The Court had, therefore, to decide the issue according to the child’s welfare.

J suffered from none of the conditions for which circumcision is medically indicated; any other medical benefit was “highly contentious”, whereas there were clear and quantifiable risks associated with the procedure.  Wall concluded that circumcision was not in the child’s best interests, and was not to be carried out; a prohibited steps order was put in place.  The appeal was rejected by Lord Justice Thorpe,[10] who observed irresponsibly that cases involving older children after their parents had separated could be avoided if the children were circumcised as infants.

Neither court was willing to bring male circumcision within the ambit of offences against the person under Section 1 of the Children and Young Persons Act 1933; It was important to the courts that circumcision was not an offence and remained a procedure which could be performed by consent; the courts also carefully avoided mention of R v Adesanya, a case about ritual scarification mentioned below, despite apparently important similarities involving associated risks, the irrevocability of the procedures and the fact that an adult might regret what had been done to him as a child.

In 1995, the Law Commission concluded that male circumcision was lawful under English common law, relying on cases such as Brown,[11] Adesanya,[12] Coney,[13] Donovan[14] and A-G’s Reference (No 6 of 80).[15]  Only the first two mention male circumcision at all (we discuss them below); the others simply refer to exceptions to the 1861 legislation.  The Law Commission argued that the legality of religious circumcision should be placed beyond doubt,[16]

Male circumcision is lawful under English common law.  Male circumcision is insisted on by Islamic and Jewish law.  It is generally accepted that the removal of the foreskin of the penis has little, if any, effect on a man’s ability to enjoy sexual intercourse, and this act is not, therefore, regarded as a mutilation.  The traditional reason for male circumcision appears to have been a hygienic one… Since ritual circumcision is customarily carried out by someone who is not a qualified doctor, the practice of male circumcision would not be protected by a purely medical exemption.

Following Freedom of Information requests by the political party Justice for Men and Boys, neither the Home Office nor the Crown Prosecution Service has contradicted this view, but neither have they explained the absence of prosecutions.[17]

In 1996, the British Medical Association observed that the assumption religious circumcision was lawful had never been challenged in the courts; it recommended obtaining the written consent of both parents.[18]

Others argue that outlawing male circumcision would interfere with the Article 9 religious rights of Jewish and Muslim parents.  In a Guardian Article, Adam Wagner made this point, declaring that the comparison with FGM is “flawed”, though he didn’t offer an explanation.[19]  In a subsequent article, Wagner maintained that there was insufficient evidence for a ban “in relation to the costs and benefits of the practice”; there was insufficient evidence, he said, of harm.[20]  It should be noted that Wagner is an orthodox Jew.  Children have rights, however, independent of their parents, and they cannot be over-ridden by their parents’ rights.

In 2012, in Germany, the Cologne Regional Court ruled that religious male circumcision amounted to bodily injury.[21]  The Muslim doctor who was prosecuted for circumcising a 4-year-old was acquitted on the grounds that a scalpel was not a dangerous weapon in medically trained hands and the fact that he had mistaken the law was unavoidable as the law was unclear.

Germany’s 200,000 Jews and 4 million Muslims were outraged by the perceived affront to basic religious and human rights; Roman Catholic and Anglican church leaders also joined in the condemnation.  The German ambassador to Israel hastily reassured Jews that the ruling was local and did not apply nationally,[22] Angela Merkel’s government sought a way out of the embarrassment.[23]  Her spokesman, Steffan Seibert, made a statement that the performance of circumcision was a religious right.  In July, the Bundestag passed a non-binding resolution for clarifying legislation.  Eventually, a law was passed (by 434 votes to 100) permitting non-medical circumcision provided certain conditions were met.[24]

Campaigners in the UK fear that careless campaigning here could trigger similar legislation, which would be the worst possible outcome.

In Sweden, where circumcision is alien to the native population, a law was enacted in 2001 permitting circumcisions to be carried out only by trained medical personnel in clinical conditions and under anaesthetic.[25]  Predictably, Jews and Muslims protested, with the World Jewish Congress melodramatically calling it “the first legal restriction on Jewish religious practice in Europe since the Nazi era”.[26]  The requirement for anaesthetic caused particular ire because native Swedes are reluctant to assist in the procedure.  Five years later, a US report noted that 3,000 Muslim and 40 to 50 Jewish boys a year were still being circumcised, mostly by unqualified and uncertificated practitioners.[27]  Rather than make the practice unacceptable, the law had pushed it underground: another profoundly undesirable consequence of ill-considered legislation.

In Denmark, 87% of the population oppose the non-therapeutic circumcision of boys, while Denmark’s 29,000 doctors have declared the procedure unethical and incompatible with the Hippocratic oath to do no harm.[28]

Other ritualistic mutilations of children are outlawed by English law: there is no cultural or religious defence.  Thus, in R v Adesanya in 1983,[29] a Nigerian member of the Yoruba people, resident in Tottenham, North London, was convicted at the Central Criminal Court under the 1861 Act of assault occasioning actual bodily harm for having made incisions with a razor in the cheeks of her two sons, aged 14 and 9 respectively, in accordance with the customs of her tribe.  She received a suspended sentence.  The judge insisted there was a distinction between this assault and male circumcision on the grounds that the razor on the face posed a greater danger.[30]

In another case, R v Zaidi, a devout Muslim father had allowed his sons, aged 15 and 13, to flagellate themselves as part of a ritual; his appeal against the conviction failed,[31]

[11] … the Appellant had let his sons take part against the advice of the Mosque Elders.  Still he failed to understand the approach of the law or to accept any culpability.  The judge accepted that his behaviour was likely to have been affected by fervent religious belief and desire to participate in the ritual.  Albeit the boys were not forced to take part, the law protected them from themselves.

It is the medical benefits of circumcision, though contentious and at best limited, which are held by the law to counter the risks, which are viewed as minor.  It is thus considered necessary to lay to rest the myths of medical benefit and to make clearer the risks and irrevocable consequences.  The experiences of Germany and Sweden, however, suggest that the real obstacle – especially in a country with a growing Muslim population – is the fear of offending religious groups, and that the medical argument is just a smoke-screen.

The barrister James Chegwidden has argued that male circumcision does constitute a crime under existing UK law;[32] this is comparable to the position taken by Lord Hailsham in reference to female circumcision.  Male circumcision is manifestly contrary to the Offences Against the Person Act 1861 and the Children and Young Persons Act 1933; it is contrary to a strong common law principle which holds as inviolate a person’s bodily integrity, establishes it independently of his parent’s rights, and confirms that it cannot be overturned by religious considerations.

Against that is a series of cases in which judges have stated without argument or evidence that male circumcision is lawful.

The case of R v Brown[33] involved a group of sado-masochists who were convicted of “unlawful and malicious wounding” and “assault occasioning actual bodily harm”.  The Court concluded that even consensual sado-masochistic homosexual encounters which occasioned actual bodily harm to the victim still constituted assaults, and were thus contrary to s.47 of the 1861 Act, and constituted unlawful wounding, contrary to s.20 of that Act.  If an act is unlawful, it cannot be rendered lawful because the person to whom it is done consents: no one can give another license to commit a crime.

In a remark which was obiter dicta and possibly per incuriam, Lord Templeman then chose to exclude from the ambit of the Act tattooing, ear-piercing, violent sports and ritual circumcision.  This was merely his opinion, without legal justification, but it has helped to establish ritual circumcision since as a lawful procedure.  Tattooing a child under the age of 18 is illegal in the UK,[34] but cutting flesh from a baby’s penis without anaesthetic or medical competence is not specifically prohibited by the law and is wholly unregulated.

Re J[35] in 1999 established the legal position that circumcision is one of the decisions which requires the consent of both parents, and especially the mother’s where the father does not have parental responsibility.  Where the parents cannot agree, the matter must be decided by a court.  Circumcision was not medically indicated and free neither from pain nor from risk.

In SS (Malaysia) v Secretary of State for the Home Department,[36] Lord Justice Moore-Bick expressed his view that male circumcision—

is usually, though not invariably, carried out at a very young age when the child is unable to understand what is involved or to express any view about it.  Although invasive in nature and not commanding universal approval, it is regarded as an acceptable practice among communities of all kinds, provided it is carried out under appropriate conditions.

He repeated the commonplace dogma that “It cannot be compared to other cultural or religious practices, such as female genital mutilation, which involve a far more serious violation of the physical integrity of the body and an expression of subservience”, and referenced Baroness Hale’s observations in K v Secretary of State for the Home Department, which we discuss below.

In Re B and G,[37] a local authority sought to take two children (a boy and a girl) into care on the grounds that the girl had been illegally circumcised.  The LA failed to prove its case, and the evidence of the expert witness Dr Momoh MBE was dismissed as “remarkably shoddy” and “exceedingly unsatisfactory”. The irony was that the degree of FGM alleged in this case, had it been proved, would have been relatively minor and, on the scale of severity, some way below that of a typical male circumcision.  The boy would, in due course, have been circumcised, but there was no suggestion by the LA that this would have resulted in an application, and yet, had the far less traumatic injury to his sister been proved, he, too, would have been taken into care, despite the total absence of any risk to him.

Lord Justice Munby began his judgment by highlighting this profound legal anomaly, but then sought to rationalise it.  The question he had to answer was how FGM – in any form – transgressed the “significant harm” threshold established by Section 31 of the Children Act 1989 while male circumcision did not.  Munby went so far as to accept that “In my judgment, if FGM Type IV amounts to significant harm, as in my judgment it does, then the same must be so of male circumcision.”  So far, so good.

To cross the threshold, however, significant harm must be accompanied by care of the child “not being what it would be reasonable to expect a parent to give”; this gave Munby his opportunity to establish clear water between the two practices.  There is no claimed medical justification or benefit for FGM, so it can never be part of reasonable parenting; MGM, however, is tolerated by society and the law and claimed by some people to confer medical benefits, so it can be consistent with reasonable parenting.

This, for Munby, established a “very clear distinction” between the two customs.

Munby is wrong, however, on both counts.  He believes that only the circumcision of boys is demanded by religion but, as we have seen, some Islamic traditions require it.  He believes, too, that only male circumcision is claimed to have medical benefits, but similar claims are made for female genital mutilation.  Dr Haamid al-Ghawaabi, for example, says,[38]

The secretions of the labia minora accumulate in uncircumcised women and turn rancid, so they develop an unpleasant odour which may lead to infections of the vagina or urethra.  I have seen many cases of sickness caused by the lack of circumcision.

Circumcision reduces excessive sensitivity of the clitoris which may cause it to increase in size to 3 centimeters when aroused, which is very annoying to the husband, especially at the time of intercourse.

Another benefit of circumcision is that it prevents stimulation of the clitoris which makes it grow large in such a manner that it causes pain.

Easily dismissed medieval twaddle, perhaps, but no more so than many of the claims made of male circumcision.  But watch what happens when researchers stumble over some genuine medical benefit of FGM.  Do they promote it, as they would for male circumcision, and use it to argue for more mutilations?  Inconveniently, two studies have shown that women who have undergone FGM have a significantly reduced risk of HIV infection than those who have not.[39], [40]  Embarrassed and apologetic, the researchers have sought to find an alternative explanation for their findings, concluding it is due to “irreducible confounding”.  Even if the correlation is true, it can never justify an abhorrent practice.

If it is not compatible with reasonable parenting to subject a girl to genital mutilation, however sincerely the parents believe it is demanded by their religion, or that it has therapeutic value, then male genital mutilation cannot be compatible with reasonable parenting either.  Munby cannot have it both ways, merely based on the sex of the victim.

The usual argument against making male circumcision illegal is the same as for abortion: that it would drive parents who insist on the procedure to use unregulated providers where complications and infections would be much more likely.  This argument is not used so often with regard to female circumcision, although it was raised in 1985 and quickly dismissed: making the practice socially unacceptable was more urgent.[41]

 

Feminism

The campaign for legal reform is further hampered by strong resistance from those who campaign against FGM and insist that the two practices must never be compared.  In the debates on the Female Genital Mutilation Bill in 2003, Baroness Rendell emphasised, “FGM is not in any way comparable to the accepted practice of male circumcision”;[42] Anne Clwyd said, “FGM is in no way like male circumcision.  It is much more harmful, and there is no medical justification for it”;[43] Baroness Findlay turned it into a specifically feminist issue, “This is a major issue for male education to alter men’s attitudes and to safeguard the lives of girls”.[44]  But it wasn’t men who were performing the ritual.

Any mention of MGM in the comments on articles about FGM in the Guardian newspaper will swiftly be removed by the moderator.  My purpose in presenting the comparatively low figures of FGM performed on UK soil is not to minimise the barbarity of this practice, nor the effects on the girls concerned, but to demonstrate the huge preoccupation with the issue of FGM compared with the utter disregard for the more than 12,000 boys we know suffer MGM every year and about whom we are probably in a better position actually to do something.  Feminists, who place such emphasis on their inalienable right to make decisions about their own bodies, have no respect for boys’ bodily integrity.

This position is difficult to comprehend until you realise that for feminists, female genital mutilation is a specifically feminist matter; this was expressed in 2005 by UNICEF,[45]

In the case of girls and women, the phenomenon is a manifestation of deep-rooted gender inequality that assigns them an inferior position in society and has profound physical and social consequences.  This is not the case for male circumcision, which may help to prevent the transmission of HIV/AIDS.

If male circumcision were a real problem it would contradict the feminist position, so it has to be dismissed as medically beneficial.  Baroness Hale, the former feminist academic Brenda Hoggett, quoted the UNICEF report with approval in the case Secretary of State for the Home Department v K,[46]

As can be seen, almost all FGM involves the removal of part or all of the clitoris, the main female sexual organ, equivalent in anatomy and physiology to the male penis.

This is not true either: though Hale wouldn’t necessarily know it, an analogy between the clitoris and foreskin is more apt.  It is characteristic of feminism to present female genital mutilation as the equivalent of castration, but this is true only of the most extreme forms.

The underlying purposes of doing this are to lessen the woman’s sexual desire, maintain her chastity and virginity before marriage and her fidelity within it, and possibly to increase male sexual pleasure.

For Hale, FGM is driven by the mythical patriarchy and male desire.

Women themselves are brought up to believe in this as strongly as men.  Sometimes, and not surprisingly, women themselves perform the operation as part of an elaborate initiation ceremony…  Patriarchal societies have often recruited women to be the instruments of the continued subjection of their sex.

In fact, FGM is usually performed by other women, and the explanation for it, as for male circumcision, is quite other than as Hale imagines.

The existence of male circumcision is a real problem for feminism and conflicts with their narrative; no opportunity is missed to trivialise it, or to present it as beneficial to the unfortunate victims.

Those who write about non-therapeutic male circumcision – as Margaret Somerville, founder and director of the McGill Center for Medicine, Ethics and Law in Montréal, did in 1990[47] – are condemned for detracting from the greater horror of female circumcision.  For these critics, it is necessary to see FGM as a barbaric practice, an expression of male power and domination, inflicting great pain and leading to life-long mutilation and complications, equivalent to castration or penectomy, while male circumcision is dismissed as a minor procedure which is hygienic and beneficial.  The feminist narrative is that FGM is carried out at the behest of men, to reduce women’s sexual pleasure, to enable men to control them.  The reality is that FGM is performed by women on women – usually by female members of the girl’s family – and this helps to explain the absence of successful prosecutions.

 

Conclusion

Outlawing FGM has been relatively straightforward: the practice had never taken root in the UK with very few procedures actually being performed here; most women who present with complications were circumcised by tribes such as the Igbo of Nigeria which are easy for campaigners to dismiss as barbarous.  It was a cultural rather than a religious practice and banning it has not offended any significant religious groups.  It had never moved out of the grimy, unhygienic conditions of the third world into the shiny, sterilised hospitals of the west.  It is straightforward to condemn because no one has ever plausibly claimed any medical benefits from it.  The campaign to ban it was an integral part of the feminist campaign to end violence against women and girls (VAWA) which receives enormous support from the government and funding from the tax-payer.  There is an uncomfortable sense that the legislation has been enabled not because FGM was an abuse of infant girls, but because it was a patriarchal crime against the sisterhood.

The move to put an end to male genital mutilation enjoys none of these advantages.  Male circumcision has long been established in the UK within an influential Jewish community, amongst many Roman Catholics and some Anglicans, and amongst the upper classes, including the Royal Family; it is respected as a traditional cultural practice and protected as a religious one.  It is likely that a substantial minority of the judiciary and of both houses of parliament have been circumcised and have circumcised their sons.  The myth of medical benefit has allowed circumcision to be performed in clinical conditions and provides its continuation even if the ritual practice were to be banned.  Feminism has ensured that while a woman’s or girl’s genitalia are sacrosanct and ever vulnerable to male abuse, a man’s or boy’s are the target of comedy and ridicule; their loss is of no consequence.

Male circumcision is child abuse.  It really is as simple as that.  It is sexual, physical and psychological abuse.  It is a breach of the child’s human rights, a violation of his body, discrimination on the grounds of his sex.  It is a breach of both national and international law.  It is horribly painful, permanently disfiguring and disabling.  It is the sacrifice by others to their god of that which it is not theirs to give.  It has no place in our society.

In a brief submitted to the Law Commission, solicitor Christopher Price wrote,[48]

Rejoicing, rightly, in our being a multi-cultural society does not… mean that we should be blind to practices, whatever their source and motive, which are themselves abusive and discriminatory of others, and which directly and inevitably diminish the freedoms, the human rights, the integrity and the dignity of others.

What Baroness Rendell said in the 2003 debate on the Female Genital Mutilation Bill applies no less to male genital mutilation,[49]

There is now much greater awareness of the practice of FGM and people are perhaps less inclined to believe that cultural beliefs are sacrosanct.  We must of course respect other cultures and traditions, but that does not mean accepting the unacceptable.  FGM is a brutal practice.  It cannot be supported on cultural, medical or other grounds.

[1] Jacobi, A. (1876). On Masturbation and Hysteria in Young Children. American Journal of Obstetrics, 8, 595.

[2] Philo of Alexandria. (c.25BC-c.50AD). De Circumcisione. In De Specialibus Legibus (Vol. 11, p. 210).

[3] Moses Maimonides. (1135-1204). The Guide of the Perplexed (Part III, Chapter 49).

[4] Øster, J. (1968, April). Further Fate of the Foreskin: Incidence of preputial adhesions, phimosis and smegma in Danish schoolboys. Arch Dis Child, 200-202.

[5] Female Genital Mutilation Bill. (2003, March 21). Hansard.

[6] Prohibition of Female Circumcision Bill. (1983, April 21). Hansard.

[7] Op. Cit., Female Genital Mutilation Bill. (2003, March 21).

[8] Williams, L. (2011, May 19). Ken Clarke’s comments: the view of an ex-Rape Crisis counsellor. The Guardian.

[9] Re J [1999] 2 FLR 678 (Family Court May 06, 1999).

[10] Re J [2000] 1 FCR 307 (Court of Appeal 2000).

[11] R v Brown [1994] 1 AC 212 (House of Lords March 11, 1993).

[12] R v Adesanya [1983] Crim LR 720 (Old Bailey 1983).

[13] R v Coney (1882) 8 QBD 534 (Queen’s Bench Division 1882).

[14] R v Donovan [1934] All ER Rep 207 (1934).

[15] Attourney-General’s Reference (No 6 of 1980) [1981] 2 All ER 1057 (1980).

[16] Law Commission. (1995). Consultation Paper no. 139, Consent in the Criminal Law. London: Her Majesty’s Stationery Office.

[17] Buchanan, M. (2016, March 29). It’s time to consign male genital mutilation to the dustbin of history. Retrieved from http://www.thebackbencher.co.uk.

[18] British Medical Association. (1996). Circumcision of male infants: guidance for doctors. London: British Medical Association.

[19] Wagner, A. (2011, June 15). Ban male circumcision? No, scientific evidence of harm is not strong enough. The Guardian.

[20] Wagner, A. (2011, June 15). Should male circumcision be banned? Retrieved from http://www.ukhumanrightsblog.com.

[21] Hans, B. (2012, June 27). Parents Vs. the State: Muslims and Jews Outraged by Circumcision Ruling. Der Spiegel.

[22] Michaelis, A. (2012, September 09). Circumcision in Germany. Jerusalem Post.

[23] The World from Berlin: Circumcision Ruling Is ‘a Shameful Farce for Germany’. (2012, July 13). Der Spiegel.

[24] German parliament passes law keeping circumcision legal. (2012, December 12). The Times of Israel.

[25] Circumcision law arouses protests. (2001, October 01). Swedish Daily News.

[26] Reuters. (2001, June 07). Jews Protest Swedish Circumcision Decision. Reuters.

[27] US Department of State. (2004). Annual Report on International Religious Freedom 2004. Washington DC.

[28] Op. Cit. Frisch. (2017).

[29] R v Adesanya, [1983] Crim LR 720 (Old Bailey 1983).

[30] Dundes Rentein, A. (2004). The Cultural Defense. Oxford: Oxford University Press.

[31] R v Zaidi [2008] EWCA Crim 2847 (Court of Appeal November 19, 2008).

[32] Chegwidden, J. (2013, September 17). The Law on Circumcision. Genital Integrity Conference. Keele.

[33] R v Brown [1994] 1 AC 212 (House of Lords March 11, 1993).

[34] The Tattooing of Minors Act 1969

[35] Re J (A Child) [1999] EWCA Civ 3022 (Court of Appeal November 25, 1999).

[36] SS (Malaysia) v Secretary of State for the Home Department, [2013] EWCA Civ 888 (Court of Appeal July 18, 2013).

[37] Re B and G (Children) (No2) [2015] EWFC 3 (Family Court 2015).

[38] Islam Question and Answer. (2005, September 23). Medical Benefits of Female Circumcision. Retrieved from https://islamqa.info.

[39] Kanki, P., M’Boup, S., Marlink, R., Travers, K., Hsieh, C., Gueye, A., . . . Leisenring, W. (1992). Prevalence and risk determinants of human immunodeficiency virus type 2 (HIV-2) and human immunodeficiency virus type 1 (HIV-1) in west African female prostitutes. Journal of Epidemiology, 136(7), 895-907.

[40] Stallings, R., & Karugendo, E. (2005, July). Female circumcision and HIV infection in Tanzania: for better or for worse? Third International AIDS Society Conference on HIV Pathogenesis and Treatment. Rio de Janeiro.

[41] Prohibition of Female Circumcision Bill. (1985, June 03). Hansard.

[42] Female Genital Mutilation Bill. (2003, September 12). Hansard.

[43] Op. Cit., Female Genital Mutilation Bill. (2003, March 21).

[44] Op. Cit., Female Genital Mutilation Bill. (2003, September 12).

[45] Lewnes, A. (2005). Changing a Harmful Social Convention: Female Genital Mutilation/Cutting. Florence: UNICEF Innocenti Research Centre.

[46] Secretary of State for the Home Department v K [2006] UKHL 46 (House of Lords October 18, 2006).

[47] Somerville, M. (1990). The Ethical Canary: Science, society and the human spirit. Viking/Allen Lane.

[48] Price, C. (1996, December). Male Circumcsision: a Legal Affront, Brief submitted to the Law Commission of England and Wales. December 1996. Retrieved from http://www.cirp.org.

[49] Op. Cit., Female Genital Mutilation Bill. (2003, September 12).

Male Genital Mutilation, Part 1

Question: What do you call the useless little flap of skin on the end of a penis?

Answer: A man.

Feminist joke

 

“The silence was soon broken by a piercing scream — the baby’s reaction to having his penis pinched and crushed as the doctor attached the clamp to his penis.  The shriek intensified when the doctor inserted an instrument between the foreskin and the glans, tearing the two structures apart…..The baby started shaking his head back and forth — the only part of his body free to move — as the doctor used another clamp to crush the foreskin length-wise, where he then cut.  This made the opening of the foreskin large enough to insert a circumcision instrument, the device used to protect the glans from being severed during the surgery.

“The baby began to gasp and choke, breathless from his shrill, continuous screams.  How could anyone say that circumcision is painless when the suffering is so obvious?  My bottom lip began to quiver, tears filled my eyes and spilled over, I found my own sobs difficult to contain.  How much longer could this go on?

“During the next stage of surgery, the doctor crushed the foreskin against the circumcision instrument and finally amputated it.  The baby was limp, exhausted, spent.

“I had not been prepared, nothing could have prepared me, for this experience.  To see a part of this baby’s penis being cut off — without an anesthetic — was devastating.  But even more shocking was the doctor’s comment, barely audible several octaves below the piercing screams of the baby: `There’s no medical reason for doing this’.  I couldn’t believe my own ears, my knees became weak, and I felt sick to my stomach.  I couldn’t believe that medical professionals, dedicated to helping and healing, could inflict such unnecessary pain and anguish on innocent babies.

An account of modern circumcision by US nurse Marilyn Fayre Minos[i]

 

Introduction

The parents of Goodluck Caubergs paid Grace Adeleye £100 to circumcise their son.  In April 2010, at an address in Chadderton, Greater Manchester, the 66-year-old midwife performed the procedure with scissors, forceps and olive oil, leaving a “ragged wound” from which, the following day, Goodluck would bleed to death.[ii]

Adeleye was charged and convicted with manslaughter by negligence; she was given a suspended sentence.

In 2012, Angelo Ofori-Mintah died aged four weeks as a result of losing three-quarters of his total blood volume following circumcision.  A verdict was returned of accidental death and Rabbi Mordehai Cohen, the mohel (the Jewish ritual circumciser) who caused his death, faced no charges; he was, said the court, “entirely blameless”.[iii]

The Manchester Royal Children’s Hospital treats around 3 such cases a month;[iv] most children survive.  In a single hospital in Birmingham, 105 boys were treated for circumcision complications in 2009 alone.[v]  An audit on an Islamic school in Oxford revealed 45% of boys suffered complications.[vi]

National figures for complications and deaths from male circumcision, a procedure dismissed by its proponents as medically inconsequential, are difficult to come by; deaths, mercifully, are rare, but complications such as haemorrhaging and infection from unsterilized implements are common, and long-term problems, as we shall see, accompany all cases.

In the US, it is estimated that 117 babies die each year from an entirely unnecessary circumcision.[vii]

Male circumcision has been in slow and erratic decline in the UK since it peaked in the 1930s and ‘40s, but a survey from 2000 showed that 15.8% of men aged between 16 and 44 reported being circumcised; prevalence was highest amongst Jewish men, at 98.7%.[viii]  It is estimated that 12,200 religious circumcisions are performed annually, 2,000 in Jewish communities and 10,000 in Muslim.[ix]  A further 32,000 are performed for “medical” reasons, of which 91% are deemed to be unnecessary.[x]

The incidence of male circumcision is higher – at 56% – in the US than in the UK;[xi] as recently as the 1970s, some 91% of American males were being circumcised.[xii]  This makes circumcision the most commonly performed surgical procedure in the US, earning several hundred million dollars a year.[xiii]

Worldwide, an estimated 650,000,000 men have been circumcised.[xiv]  While there is almost no official support for female genital mutilation, organisations such as the WHO and UNAIDS are still promoting male circumcision as a means to control HIV.[xv]

By contrast, female circumcisions in the UK are much rarer – an estimated 18 in 2015/16,[xvi] and the number of women circumcised worldwide may be as many as 200,000,000;[xvii] complications requiring medical intervention generally affect women who were circumcised outside of the UK, prior to immigrating.  Nevertheless, feminist campaigners have fastened on female circumcision – or “female genital mutilation”, as they prefer to call it, focusing, perhaps unexpectedly, on achieving the first successful prosecution.

The Home Secretary, Amber Rudd, has been the most recent to jump on this particular bandwagon, establishing a new forum made up of the usual professionals, charities, campaigners and survivors with a view to end female genital mutilation (FGM) at home and abroad,[xviii]

We are still yet to see a perpetrator brought to justice and I am determined to see the first successful prosecution for FGM.  And most importantly, we need to protect women and girls by preventing acts of FGM before they happen.

This failure to achieve a successful prosecution is an increasing frustration amongst campaigners, and persists despite a series of measures by the Home Office, including—

  • introducing a new offence of failing to protect a girl from FGM;
  • extending the reach of extra-territorial offences;
  • introducing lifelong anonymity for victims of FGM;
  • introducing civil FGM Protection Orders (FGMPOs); and
  • introducing a mandatory reporting duty for known cases in under 18s.

The campaigners have consequently demanded yet more measures to make prosecution easier, through further legislation.  The Government has responded[xix] by citing the measures already introduced and stating that it has no present intention to legislate further – it is difficult to see what further legislative measures could be introduced.  It warned that prosecutions can be brought only where there is sufficient evidence; given that cases of FGM performed on UK soil are rare, it is understandably difficult to find a case which ticks all the boxes making it suitable for prosecution.

This pattern, of failing to see the advances it has made, is typical of feminism.  FGM is now, rightly, unacceptable in the UK and in most countries; worldwide it is in decline.  It would be a mistake to be complacent, but the campaigners have won.  The failure to find a case suitable for prosecution may actually be something to celebrate.

Let us take a quick look now at female circumcision, with which, we are repeatedly told, male circumcision must never be compared.

 

Female Genital Mutilation

The United Nations (UN) and the World Health Organisation (WHO) employ the term Female Genital Mutilation (FGM) to describe what in UK law used to be referred to as Female Circumcision.  Both terms have become emotionally and politically loaded, and it is important to recognise that circumcised women and the parents of girls who believe it is in their daughters’ best interests may consider the term FGM degrading to women.  The WHO categorises FGM into four types:[xx]

Type I: Partial or total removal of the clitoris and/or the prepuce (clitoridectomy).

When it is important to distinguish between the major variations of Type I mutilation, the following subdivisions are proposed: Type Ia, removal of the clitoral hood or prepuce only; Type Ib, removal of the clitoris with the prepuce.

Type II: Partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (excision).

When it is important to distinguish between the major variations that have been documented, the following subdivisions are proposed: Type IIa, removal of the labia minora only; Type IIb, partial or total removal of the clitoris and the labia minora; Type IIc, partial or total removal of the clitoris, the labia minora and the labia majora.

Type III: Narrowing of the vaginal orifice with creation of a covering seal by cutting and appositioning the labia minora and/or the labia majora, with or without excision of the clitoris (infibulation).

When it is important to distinguish between variations in infibulations, the following subdivisions are proposed: Type IIIa: removal and apposition of the labia minora; Type IIIb: removal and apposition of the labia majora.

Type IV: Unclassified: All other harmful procedures to the female genitalia for non-medical purposes, for example, pricking, piercing, incising, scraping and cauterization.

While FGM is still very common in many countries, incidence in the UK is difficult to determine, but is most prevalent amongst minority ethnic populations from Djibouti, Eritrea, Ethiopia, Sierra Leone, Somalia, Sudan and Nigeria.[xxi]

Any degree, however minor, of pricking, nicking or cutting is considered by the WHO to be genital mutilation, and is thus illegal.  The word usually carries the sense of the cutting off or removal of tissue.  Two people were convicted in Australia in November 2015, despite the lack of evidence for any injury which could possibly be considered a “mutilation”.[xxii]

Data for FGM in the UK is incomplete, but indicates it is rare for girls born here, with 43 new cases in 2015/16 of which 40% were the less severe type IV.[xxiii]  In only 18 cases was it established that the FGM had taken place in the UK, and 10 of these were Type IV.[xxiv]

The figures usually given are for women who experience problems in pregnancy and child-birth as a result of being circumcised in their countries of origin.  There were 5,702 such cases newly identified in 2015/16.[xxv]  Other figures given are for the number of girls claimed to be at risk of FGM, but who have not actually undergone the procedure and may never do so.

 

Male Genital Mutilation

Male Genital Mutilation is not a term in general use to describe male circumcision.  It has been adopted by campaigners purposefully to draw attention to the alleged similarities between male and female circumcision.

In the case of Re B and G,[xxvi] the President of the Family Division, Lord Justice Munby, described male circumcision thus:

[59] Circumcision of the male (from the Latin circumcidere to cut round) is the removal of some, or all, of the prepuce (foreskin), the retractable fold of skin that surrounds and covers the glans of the penis, so as to expose the glans.  Circumcision involves the removal of a significant amount of tissue, creates an obvious alteration to the appearance of the genitals and leaves a more or less prominent scar around the circumference of the penis.  Apart from the removal of the foreskin, and sometimes of the frenulum, the ligament that connects the foreskin to the glans, the genitals are left intact.

Munby went on to observe—

It can readily be seen that although FGM of WHO Types I, II and III are all very much more invasive than male circumcision, at least some forms of Type IV, for example, pricking, piercing and incising, are on any view much less invasive than male circumcision.

We might dare to go further, and suggest that typical (Jewish style) male circumcision is anatomically similar to Type Ia female genital mutilation, and that on the FGM spectrum MGM falls about halfway, though we have to acknowledge that many of the complications caused are the result of the – usually – far less sanitary conditions in which FGM is performed.

Traditional, ritualistic forms of male circumcision do not employ anaesthesia and cause significant pain which is believed to interfere with bonding between the infant and the mother and to cause other behavioural problems.[xxvii]  Some argue that babies experience pain more acutely than children and adults.[xxviii]

As Munby observed, “a significant amount” – between a third and a half – of the most sensitive penile skin is removed, together with up to 20,000 specialised nerve endings; these include Meissner’s corpuscles which detect light and fast touch, Merkel’s disc cells which detect light pressure and texture, Ruffini’s corpuscles which respond to slow sustained pressure, skin tension, stretch, and slip, and Pacinian corpuscles which respond to deep touch and vibration.

These cells are found only in the tongue, lips, palms, nipples, fingertips, the female clitoris, and the ridged band of the male foreskin.  It is misleading, therefore, to compare the male foreskin with the female, which does not contain these cells.  It is also inaccurate to maintain that the male glans does contain these cells and that it can thereby compensate for the loss of the foreskin.

The catalogue of structures lost includes the peripenic dartos muscle, the frenar band, part of the frenulum, lymphatic vessels, apocrine glands (producing pheromones), sebaceous glands, and Langerhans cells (a part of the defence system).  If you are unfamiliar with these structures, why do you imagine their removal is beneficial?  Nothing resembling this remarkable organ exists anywhere else on a man’s body, which is why surgical reconstruction using skin from elsewhere is of very limited effect.

Normally the glans (the Latin word means “acorn”) is covered, and exposed only during urination, washing and sexual arousal.  After circumcision, the reciprocal stimulation caused by movement of the foreskin over the glans during masturbation and intercourse is lost.  During normal intercourse, the glans slides in and out of its protective sheathe, lubricated by secretions from the vagina, it does not come into direct contact with the vagina.  Following circumcision, the glans rubs directly against the vagina and the lubrication function is lost, removing secretions from the vagina, leading to dryness and reduced pleasure to both partners and necessitating artificial lubrication.

This is also often necessary in masturbation.  Indeed, widespread adoption of circumcision in the Jewish style began in the Victorian era to reduce the pleasure derived from masturbation, which was believed to be immoral and to cause a variety of maladies, without interfering too much with procreation.[xxix]  Of course, circumcised boys continue to have no less desire to masturbate than the uncircumcised, and just require more determination.

The surface of the glans – especially where infant circumcision has forcibly ripped the foreskin away from the glans – will be discoloured, pitted and scarred; as time goes by, it becomes increasingly keratinised, leading to further loss of sensation.  The scar left by the circumcision itself constricts the penis during erection, making masturbation and intercourse uncomfortable or painful.  Mohalim and surgeons even pride themselves on achieving a “nice, tight scar”.

Other complications include:

  • Haemorrhage – possibly the most common cause of death associated with circumcision, significant blood-loss can be disguised by super-absorbent disposable nappies;
  • Infection – associated with circumcisions performed in less than sterile conditions, and potentially leading, albeit rarely, to further complications such as meningitis, necrotizing fasciitis, gangrene, and sepsis;
  • Skin bridges or adhesions between the glans and the shaft of the penis which do not grow as the rest of the body grows, leading to permanent discomfort and pain;
  • Removal of too much tissue or even partial degloving of the shaft, leading to severe scarring which, again, does not grow with the individual;
  • Removal of too little tissue, necessitating further surgery;
  • Blocking of the urethra with scar tissue, necessitating further surgery;
  • Tearing of the remains of the frenulum during intercourse;
  • Pubic hair growing on the scar;
  • Inclusion cysts;
  • Peyronie’s disorder: a curved or bent appearance of the erect penis due to unsymmetrical scarring.

Affected men very rarely discuss these issues, which is why they are poorly recognised; it takes courage to face up to what they have lost.

 

Methods

There are three stages to a Jewish ritual circumcision.  In the milah, the foreskin is pulled forward, away from the glans, and removed.  This (“tug-and-chop”) process results in most of the foreskin remaining, preserving its protective and sexual function, with just the tip of the glans protruding.  A minimal amount of erogenous tissue is removed.

The second stage, peri’ah (opening), involves forcibly separating the remaining foreskin from the glans (at 8 days the two have not yet separated naturally) and cutting it away.  This has been compared with ripping a finger nail away from its bed.[xxx]

This measure was introduced in the 2nd century AD because Jewish athletes wishing to compete naked with uncircumcised Greek athletes were undergoing painful operations to stretch their foreskins to re-cover the glans.  Total removal of the foreskin prevented this.[xxxi]

The third stage is the metzitzah b’peh (sucking), in which the mohel sucks blood from the penis with his mouth.  This practice can transfer infections such as syphilis and herpes; in 2005, a New York mohel who had performed some 12,000 circumcisions killed a boy in this way, but was pardoned.[xxxii]

Medical circumcisions are performed differently, but are modelled on the Jewish form and the end result is identical.  Because anaesthetic is not always used, the baby must be strapped down to a rigid board to prevent movement.  An instrument is used to tear the foreskin away from the glans; the foreskin is then crushed against this instrument and cut away.  During this process, which typically takes twelve minutes, the baby will scream until he is exhausted.  The removed foreskin is not thrown away: they are used to cultivate tissue for skin grafts or sold to cosmetics companies for injectable wrinkle treatments or face creams.[xxxiii]

In 2013, TV personality Oprah Winfrey was widely condemned for promoting a face cream in which human foreskin was an active ingredient.  The manufacturer protested that they hadn’t harvested a foreskin for 20 years and were using a cell culture, but critics countered, “Imagine how Oprah would respond if a skin cream for men went on the market that was made from parts of the genitalia of little girls.  That would be an outrage and rightly so.”[xxxiv]  Imagine.

 

Origins

The original justification for male circumcision is religious – in Leviticus 12:3, Jehovah (whom James Joyce dubbed the “collector of prepuces”[xxxv]) says to Abraham,

every male among you shall be circumcised.  And ye shall be circumcised in the flesh of your foreskin; and it shall be a token of a covenant betwixt Me and you.  And he that is eight days old shall be circumcised among you, every male throughout your generations…  And the uncircumcised male who is not circumcised in the flesh of his foreskin, that should shall be cut off from his people; he hath broken My covenant.

Abraham circumcised himself at the age of 80, apparently using an axe.

The foreskin of Jesus himself is, of course, a sacred relic, claimed by as many as 18 churches (including one in Stoke-on-Trent) and believed to have miraculous properties.  It first appeared in 800 when Charlemagne gave it to Pope Leo III; the last remaining one was stolen by a priest from the church of Calcata, Italy in 1983.

The practice is much older, however, than Abraham, and rooted in ritual; it is said the Jews and Arabs learnt the practice in Egypt.  A man could not go to be married uncircumcised; indeed, the Hebrew word for “bridegroom” is linked to the Arabic word for “circumcise”.  Circumcision was a part of the Israelite national character, and uncircumcised races, such as the Philistines, were viewed with contempt.

It is the shedding of blood which seems to be more significant than the removal of the foreskin, and circumcision is a particularly bloody procedure with blood loss difficult to control even in clinical conditions.  Where boys are born without a foreskin or have been circumcised medically, a ritual is still held to prick the glans and produce a drop of blood.  A sacrifice is of no worth unless it is of something most valuable; a circumcised man is of no less value as a worker or in battle, but by surrendering all pleasure derived from the sexual act he demonstrates his devotion to his god.  Or he would if he sacrificed his own foreskin rather than someone else’s.

Circumcision establishes a blood covenant which bonds a Jewish male to his god.  It thus empowers men in a patriarchal brotherhood from which women are excluded.  Jewish women are not Jews in quite the same way that Jewish men are, and this justifies a degree of discrimination against women.  The obvious solution – female circumcision – never became part of Jewish culture.

Within Islam, circumcision (khitan) is widespread but not universal; it is more common for men than for women.  It is not mentioned in the Koran, but is referred to in the hadith and Sunnah.  According to some traditions, Mohammed was born without a foreskin, according to others he was circumcised at 7 days.  Circumcision is recommended by some hadiths but not others, presumably indicative of pre-Islamic traditions.

Islamic circumcision tends to take place much later than Jewish, after the foreskin and glans have separated; in some cultures, it is a ritual of puberty.  It is usually conducted in clinical conditions, and the amount of foreskin removed varies.

The circumcision of girls forms part of several hadith and many fatwa.  In the jurisprudence (Fiqh) of Shafii madhhab and many Ulama of Hanbali madhhab, female circumcision is a religious duty (wajib).  Mohammed instructed the muqaṭṭiʿa al-buẓūr (cutter of clitorises) Umm ‘Aṭiyya, “[Cut] slightly and do not overdo it”.[xxxvi]  Female circumcision is carried out on the foreskin over the clitoris, though little flesh, if any, is removed.

In some cultures, male circumcision is a more severe mutilation.  In 1938, Dr Andreas Lommel described how the aborigines of Australia sliced open the urethra from the scrotum to the base of the glans, with a stone knife, pressing it flat against the rock on which the pubescent boy was sitting.[xxxvii]  Quite how intercourse then took place is not explained; these men are obliged to urinate in a squatting position, like women.

Amongst some African tribes it is a rite of passage, conducted in the bush with unsterilised knives and spearheads.  In South Africa alone, between 2008 and 2014, more than half a million boys were admitted to hospital and over 400 died through loss of blood and infection.[xxxviii]  The source of this figure euphemistically refers to circumcision as “initiation”.  One man who lost his penis to gangrene was publicly humiliated and beaten after telling his story.[xxxix]

For the great scholar, Sir James G Fraser, circumcision was part of the drive by primitive societies to control sex and death; it was an initiation rite by which a small part of the boy’s body was sacrificed to the divine powers to redeem his community.[xl]  For Mircea Eliade, writing in 1958, it was an expression of ancient beliefs.[xli]

Circumcision may occur at any time between a few days after birth up to the ages of 15 or 16.  It may mark the beginning of life or the end of childhood; it seems to symbolise inclusion into the tribe and separation from the mass of humanity.  Van Gennep observed that both male and female circumcision remove that part of the sexual organs which most resembles the opposite sex.[xlii]  Male circumcision creates the appearance of a permanent erection – which is why the Greeks found it indecent – and renders the penis more masculine and less effeminate.  Following this scheme, female circumcision removes the protruding parts of the female genitalia, which can resemble a miniature penis.

 

Notes to Part 1

[i] Minos, M. F. (1990). In B. R. Boyd, Circumcision: what it does. Taterhill Press.

[ii] Fogg, A. (2012, December 17). Male circumcision: Let there be no more tragedies like baby Goodluck. The Guardian.

[iii] Queen’s Park baby bled to death two days after being circumcised. (2012, June 22). Brent & Kilburn Times.

[iv] Manchester baby boy ‘bled to death after circumcision’. (2012, November 27). Retrieved from http://www.bbc.co.uk/news.

[v] Poole, G. (2012, July 14). Birmingham NHS Bosses Stay Silent As Botched Circumcisions Put 100 Boys In A&E. Retrieved from endmalecircumcision.blogspot.co.uk.

[vi] Campbell, D. (2010, July 11). NHS urged to offer circumcisions to avoid botched operations. The Guardian.

[vii] Bollinger, D. (2010, April 25). Lost Boys: an estimate of US circumcision-related intant deaths. Thymos: Journal of Boyhood Studies, 4(1), 78-90.

[viii] Dave, S., Johnson, A., & Fenton, K. (2003). Male circumcision in Britain: findings from a national probability sample survey. Journal of Exually Transmitted Infections, 79, 499-500.

[ix] Poole, G. (2012, May 04). 100 Unnecessary Male Circumcisions performed every day. Retrieved from endmalecircumcision.blogspot.co.uk.

[x] Ibid.

[xi] Wikipedia. (2016). Prevalence of circumcision. Retrieved from http://www.en.wikipedia.org.

[xii] Ibid.

[xiii] Frisch, M. (2017, January 12). Denmark’s 29,000 Doctors Declare Circumcision of Healthy Boys an “Ethically Unacceptable” Procedure Offering no Meaningful Health Benefits. Huffington Post.

[xiv] A figure often cited, but I cannot track down a definitive source.

[xv] World Health Organization. (2016, September). Male circumcision for HIV prevention. Retrieved from http://www.who.int.

[xvi] National Health Service. (2016, July 21). First ever annual statistical publication for FGM shows 5,700 newly recorded cases during 2015-16. Retrieved from content.digital.nhs.uk.

[xvii] World Health Organization. (2016, February). Female Genital Mutilation: Fact sheet. Retrieved from http://www.who.int.

[xviii] Family Law Week. (2016, December 02). Home Secretary hosts forum to end FGM. Retrieved from http://www.familylawweek.co.uk/.

[xix] FGM Unit – Home Office. (2016). Female genital mutilation: abuse unchecked. London: Her Majesty’s Stationery Office.

[xx] Op. Cit., World Health Organization. (2016, February).

[xxi] Royal College of Midwives. (1998). Female genital mutilation (Female circumcision), Position Paper 21.

[xxii] Jabour, B. (2015, November 12). FGM: mother and retired nurse both found guilty of mutilating two sisters. The Guardian.

[xxiii] Op. Cit., National Health Service. (2016, July 21).

[xxiv] Ibid.

[xxv] National Health Service. (2016, July 21). Female Genital Mutilation (FGM) – April 2015 to March 2016, Experimental Statistics. Retrieved from content.digital.nhs.uk.

[xxvi] Re B and G (Children) (No2), [2015] EWFC 3 (Family Court 2015).

[xxvii] Kroeger, M., & Smith, L. J. (2003). Circumcision. In Impact of Birthing Practices on Breastfeeding: Protecting the Mother and Baby Continuum (pp. 197-8). Sudbury, Massachusetts: Jones and Bartlett Publishers.

[xxviii] Goksan, S., Hartley, C., Emery, F., Cockrill, N., Poorun, R., Moultrie, F., . . . Slater, R. (2015, April 21). fMRI reveals neural activity overlap between adult and infant pain. Elife, 4.

[xxix] Spratling, E. (1895, September 28). Masturbation in the Adult. Medical Record, 48, 442-3. Retrieved from http://www.circinfo.org.

[xxx] Bates, F. (2001, August). Males, medical mutilation and the law: some recent developments. Journal of Law and Medicine, 9(1), 68-75.

[xxxi] Hall, R. G. (1992, August). Epispasm: Circumcision in Reverse. Bible Review, 52-57.

[xxxii] Newman, A. (2005, August 26). City Questions Circumcision Ritual After Baby Dies. The New York Times.

[xxxiii] Margulis, J. (2013). The Business of Baby: What Doctors Don’t Tell You, What Corporations Try to Sell You, and How to Put Your Pregnancy, Childbirth, and Baby Before their Bottom Line. Scribner Book Company.

[xxxiv] Morris, J. (2013, January 24). Oprah faces protest for using wrinkle cream made with foreskin. Retrieved from vancouver.24hrs.ca.

[xxxv] Joyce, J. (1922). Ulysses. Paris: Sylvia Beach.

[xxxvi] Corbett, S. (2008, January 20). A Cutting Tradition. The New York Times.

[xxxvii] Lommel, A. (1938). Die Kunst des alten Australien. Retrieved from http://www.bradshawfoundation.com.

[xxxviii] Commission for the Promotion and Protection of the Rights of Cultural, Religious & Linguistic Communities. (2014). Report on Public Hearings on Initiation Schools in South Africa.

[xxxix] Associated Press. (2014, June 04). In South Africa, circumcision ritual becomes health crisis. Retrieved from http://www.cbsnews.com.

[xl] Fraser, J. G. (1890). The Golden Bough: A Study in Comparative Religion. London: MacMillan & Co.

[xli] Eliade, M. (1958). Rites and Symbols of Initiation.

[xlii] van Gennep, A. (1909). Rites of Passage.

Should men have a view on abortion?

There is a range of issues which are of particular concern to those working in the area of men’s and boys’ rights.  Some of these are of greater prominence than others: we might identify, for example, parental alienation, male genital mutilation and male suicide as matters which have come to the fore in recent years to define the debate on male issues.  I thought I would discuss some of these in an occasional series of posts, beginning, for no particular reason other than an alphabetical one, with abortion.

I certainly supported a woman’s right to choose, but to my mind the time to choose was before, not after the fact.

Ann B. Ross [1]

In 2015 in England and Wales, one hundred and eighty-five thousand, eight hundred and twenty-four (185,824) abortions were carried out.[2]  Ninety-eight percent of them were paid for by you, the taxpayer.  Since abortion was legalised in 1967, more foetuses have been killed than the combined populations of Scotland and Wales.

You do not need to be a pro-life zealot to find these figures disturbing.

The state-approved killing of a viable child must never be anything less than a very big deal: it is not just, as some would have it, a minor medical procedure.  Some people will always find abortion monstrous, and it does the rest of us no harm to feel grave unease: it keeps us forever re-evaluating society’s moral boundaries.  Even its advocates and apologists wrap abortion up in awkward euphemisms: it is “choice” – a distasteful term in the circumstances – or “contraception”, which manifestly it is not, being deployed after a confirmed conception, or “birth control”, or, worst of all, “planned parenthood” when it is not planned and is the antithesis of parenthood.  Meanwhile, a foetus is a “pregnancy” or “the products of conception”, but never a living being.

It should never be forgotten that abortion is a huge deal for the mother, too.  She may have agonised over it for weeks; she may have been coerced into the procedure by a partner, or relatives, or the abortion provider.  It might rob her of her only chance to have a family; it may be something she regrets for the rest of her life.

It remains taboo to describe what actually happens in an abortion, and this makes informed debate difficult.  After about 12 weeks, medical abortion (drug induced) or standard vacuum-aspiration – in which a tube is inserted and the foetus sucked out into a collecting jar – are not always practicable.  The foetus must first be dismembered within the uterus, most parts are then removed with forceps, but the skull, spine and pelvis may need to be crushed prior to removal.

Once legal, abortion becomes politicised: John Holdren, President Barack Obama‘s science and technology advisor, believed that an optimal population could be maintained through rigid state control of the twin tools of insemination and abortion.  Too large a population?  Raise the number of forced abortions or sterilise the population by putting drugs in the water supply.  Too small?  Increase the number of permitted inseminations, [3]

Although free and easy association of the sexes might be tolerated in such a society, responsible parenthood ought to be encouraged and illegitimate childbearing could be strongly discouraged.  One way to carry out this disapproval might be to insist that all illegitimate babies be put up for adoption… If a single mother really wished to keep her baby, she might be obliged to go through adoption proceedings and demonstrate her ability to support and care for it… It would even be possible to require pregnant single women to marry or have abortions, perhaps as an alternative to placement for adoption, depending on the society.

Is state-enforced abortion too much for you to stomach?  How about this suggestion of “after-birth abortion” from Australian philosophers Alberto Giubilini and Francesca Minerva, [4]

[W]hen circumstances occur after birth such that they would have justified abortion, what we call after-birth abortion should be permissible. … [W]e propose to call this practice ‘after-birth abortion’, rather than ‘infanticide,’ to emphasize that the moral status of the individual killed is comparable with that of a fetus … rather than to that of a child.  Therefore, we claim that killing a newborn could be ethically permissible in all the circumstances where abortion would be.  Such circumstances include cases where the newborn has the potential to have an (at least) acceptable life, but the well-being of the family is at risk.

The basis of such a proposal is that the cut-off point at which abortion ceases to be acceptable is invariably arbitrary and not based on sound medical principles – if it can be just before birth, why should it not be just after?  How long after is not specified.  Abortion will always remain a controversial and touchy topic: an absolute right or an absolute wrong; a vehicle upon which the progressive or liberal can indulge in virtue-signalling.

Prior to 1967, the law on abortion was embodied in the Offences Against the Person Act 1861 (the re-enactment of an earlier 1837 Act), Section 58 of which criminalised the procuring of a miscarriage, and Section 59 the supply of poisons or instruments intended to cause a miscarriage, regardless of whether or not the woman was actually with child.  This law still applies and abortion remains unlawful unless procured according to the precise terms introduced by the 1967 Act.

The Infant Life (Preservation) Act 1929 criminalised the killing of a child capable of being born alive (set at 28 weeks), closing the lacuna which permitted a child to be killed during the moment of birth, although the first prosecution under this act was not until 2007; it allowed abortion where the mother’s life was in danger.  The result of these laws was that up to 50 women a year were dying from “septic and incomplete abortion”; many more were hospitalised following complications from criminal and self-induced abortion.

In 1938, Dr Aleck Bourne based his defence on the Act when he was acquitted of performing an illegal abortion on a suicidal 14-year-old, gang-raped by five Royal Horse Guards officers; a Roman Catholic doctor at St Thomas’ Hospital had refused, on the unlikely ground that she might be carrying a future prime minister.[5]  The case set a precedent, extending the defence to abortion to include “mental and physical wreck”, but only if a psychiatrist consented.

Although reform had been recommended by an inter-departmental committee before the war,[6] Liberal MP David Steel’s Private Member’s Bill was the eighth attempt, and its passage had been eased by bills introduced in the Lords in 1965 and 1966 by Lord Silkin.  The intention was to clarify rather than change the existing law; it was partly inspired by the thalidomide catastrophe of 1957-61 and enabled by the development of vacuum curettage to provide a safe technology.

The 1967 Act permitted abortion up to twenty-eight weeks to avoid injury to the physical or mental health of the woman or of her children, and up to full term to save the mother’s life, to prevent grave permanent injury to her physical or mental health, or if the child was likely to be severely physically or mentally handicapped.  The Act treated abortion as a purely medical matter between a woman and her doctors.  Aleck Bourne, who had become a founding member of the Society for the Protection of Unborn Children, warned that the Act would lead to the “greatest holocaust in history”; [7] supporters argued that women would only seek abortions in extreme circumstances.  The 1929 Act continued to prevent the abortion of a child “capable of being born alive”, a definition which depended on judges’ interpretation of current medical science.

Such a termination became lawful only if conducted by a medical practitioner and if “two registered medical practitioners [were] of the opinion” it was justified.  It is nearly always considered safer for a mother to terminate a pregnancy than to allow it to continue; complications are rare, with 294 in England and Wales in 2015 and only one death.[8]  That compares with a relatively high UK life-time risk of death in childbirth of 1 in 6,900.[9]

Despite the late limit, it was always envisaged that most abortions would take place as early as possible in pregnancy; many countries confine it to the first three months, unless the foetus is severely disabled or the mother’s life is at risk.  Medical technology continues to develop: the Human Fertilisation and Embryology Act 1990 reduced the time limit to twenty-four weeks; by 2005, 20 to 35% of foetuses born at 23 weeks were surviving and 50 to 70% born at 24 to 25 weeks.[10]  Amillia Taylor was born in 2006 at 21 weeks and 6 days gestation; as at 2013 she was in kindergarten with some developmental delays.[11]  Despite campaigns to reduce the limit to 22, 20 or even 12 weeks, it remains at 24 for now.

No doubt in the 1960s, the drafters of the legislation considered the safeguards robust, but by 2014 doctors in 54% of cases were signing off on abortions despite never having seen the women: the safeguards were not working.  In January, a government consultation proposed to remove these safeguards entirely, as ministers drew up draft guidance to enable a woman to have an abortion without needing to consult a doctor.[12]

The Human Fertilisation and Embryology Act 1990 also decoupled the 1929 Act from the 1967 Act, allowing abortion to be carried out up to full term; the unintended effect of this change was foreseen too late and an attempt to overturn it was unsuccessful; the law now permitted a child born, for example, with a hare lip or club foot to be destroyed during birth.  Between 2002 and 2011, there were 26 such abortions.[13]  In 2004, police chose not to prosecute two doctors who had approved the illegal abortion at 28 weeks of a foetus suffering from a cleft palate.[14]  The Reverend Joanna Jepson, who had herself been born with a more serious facial deformity and has a brother with Down syndrome, obtained leave to challenge the decision by judicial review.  She disputed that a cleft palate constituted a “serious handicap” under Section 1(d) of the Act – the law does not define the term.  Her challenge was unsuccessful.

Abortion on demand has become one of those measures which represent the touchstone of a progressive and liberal society; no one but a zealot would want a return to the grim days before 1967, but that doesn’t stop many people feeling uncomfortable.

Sophie Walker, the leader of the recently-formed Women’s Equality Party, has called for the complete decriminalising of “self-induced” abortion and for an end to its inclusion within the “Victorian” Offences Against the Person Act 1861.  “Any denial of reproductive rights,” she maintained, meaning the right of a woman to kill her unborn child for any reason whatsoever, “is a form of violence against women”.[15]

The irony of this is that it would allow a woman to induce her own abortion – at any stage of foetal development – or allow her to procure it from a neighbour or backstreet practitioner, thus making things very much more dangerous for women again and undoing decades of reform.  The Act’s antiquity – dating to 1837, the year Victoria came to the throne – merely demonstrates how well-drafted it was.  Few would argue that an amateur procuring an abortion by means of home-brewed potions or a rusty coat-hanger and causing poisoning, infection, haemorrhaging or death should escape justice.

Exactly who is Walker seeking to protect?  Who are these people currently being prosecuted for unlawful abortion whom she thinks should be ignored by the law?  Prosecutions of women for unlawful abortion are rare: in December 2015, Natalie Towers was imprisoned for two-and-a-half years for aborting her 32-week-old foetus using poison she had bought on the Internet;[16] Sarah Catt was jailed for eight years in 2012 for aborting her full-term foetus,[17] though her sentence was later reduced to three-and-a-half years.[18]

More common are prosecutions of men for seeking to procure their partners’ miscarriages.  In 2011, father of two Dr Edward Erin spiked his lover, Bella Prowse’s, drinks with poison after she refused an abortion.  He was jailed for 6 years (subsequently extended to 8[19]) and struck off the medical register.  Prowse gave birth to a healthy boy.[20]

In 2013, Richard Hallam was jailed for 10 years for seeking – unsuccessfully – to cause his girlfriend to abort their child.  His crime was discovered after he was arrested for attacking another woman with a hammer.[21]

In the worst such case, Mohammad Karrar from Eritrea, leader of the notorious Oxford sex-gang which preyed on pre-teen and teenage girls, was jailed for life with a 20-year minimum tariff – also in 2013 – for crimes including rape, child prostitution, sexual trafficking and procuring a miscarriage.[22]  When the girl with whom he had regularly been having sex since she was 11 became pregnant, he told her she should have been more responsible, gave her drugs and took her to Reading where a backstreet abortion was performed with a hooked instrument.  She bled for a long time afterwards.

Are these the sort of men the Equality for Women Party wants to protect?

The ease with which an abortion may be obtained troubles the Justice for Men and Boys party (J4MB), “the only political party in the English-speaking world campaigning for the human rights of men and boys”.  In their manifesto for the 2015 General Election, they published alarming figures showing that the 1967 Act was being widely misused.[23]  They drew attention to the irony that medical personnel can fight to save the life of a premature baby while others in the same hospital are at work killing a foetus at the same stage of development.  They proposed that a child’s legal rights – which currently commence fairly arbitrarily at the moment of birth – should commence earlier.  They demonstrated that the vast majority of abortions were allowed on the basis of potentially causing harm to the mother’s mental health, and very rarely on the basis of causing harm to her physical health.

Using figures from 2012, they showed that in England and Wales, 185,122 abortions had been carried out, of which 180,008 were performed to protect the mother’s mental health – that’s 97%.  The most recent statistics, for 2015, show that 98% were mental health abortions; only 96 of 185,824 were performed to protect the mother’s physical health.[24]  Where the foetus is healthy and there is no risk to the mother’s physical health, these interventions are often referred to as “social abortions”; pro-life campaigners want to limit them to 16 weeks.[25]

The reason for emphasising these figures is that this represents, in all but name, “abortion on demand”.  As J4MB confirmed, there is “no evidence to support the thesis that abortion reduces the risk to mental health of women with an unwanted pregnancy”.  They cited a 2011 report by The National Collaborating Centre for Mental Health which stated, “The rate of mental health problems for women with an unwanted pregnancy were the same whether they had an abortion or gave birth”.[26]  A 2013 report published by the Australian and New Zealand Journal of Psychiatry concluded, [27]

There is no available evidence to suggest that abortion has therapeutic effects in reducing the mental health risks of unwanted or unintended pregnancy.

Justice for Men and Boys, however, missed a couple of tricks which may have worked to their advantage: there are clear links between abortion and fatherlessness, and fatherless girls are 2.5 times more likely to become pregnant in their teens.[28]  Despite recent falls, the teenage pregnancy rate in the UK is still the highest in Western Europe and four times higher than the average.[29]  Half of these pregnancies end in abortion: in 2013 in England and Wales there were 24,306 conceptions amongst girls under the age of eighteen, of which 50.7% ended in abortion.[30]

The other issue which I am surprised they neglected to mention is that, under the Abortion Act 1967, men have no right in law either to insist on the abortion of children they don’t want or to prevent the abortion of children they do want; there is also no requirement when a mother seeks an abortion to secure the father’s consent.  This arises out of the interpretation of abortion as a private matter between a woman and her doctors.  While we can have little time for men who seek the abortion of a child in order to conceal an affair or even a crime, it is hard not to feel some compassion for a man who desperately tries to prevent the killing of his unborn child.

There are three relevant precedents: in Paton v BPS,[31] a father, William Paton, argued that he had a right to a say in what happened to his child and that the mother was seeking the abortion out of vindictiveness in the context of a failing marriage.  The Court disagreed; the law is clear: a foetus has no human right to life before it is born; there is no legal mechanism by which a father might prevent its abortion.  Paton took his case to the European Court of Human Rights and again the Court rejected the notion that a father has the right to be consulted.[32]

In C v S,[33] Robert Carver, president of the Oxford University Pro-Life group, failed to persuade the judges that abortion would be a crime under s.1(b) of the Infant Life (Preservation) Act, given that the foetus was at a stage where it could survive outside the womb: such a prosecution could be brought only by the Director of Public Prosecutions and not by the father.  Nevertheless, the pressure of the ensuing publicity forced the mother to abandon the termination and Carver raised his daughter himself.

In 2001, married father of two, Stephen Hone, went to the High Court in a bid to stop his next door neighbour, Claire Hansell, aborting their child.  He argued that only one doctor had been consulted instead of the two required by law and claimed a “partial victory” when the clinic said it would perform further medical checks before carrying out the termination, but Hansell’s solicitors reported she had already aborted the child at another clinic.[34]

So, should men have a say in abortion?  In Ohio in 2014 a Bill was introduced, based on the principle that if a man is to be held financially responsible for a child, he should have a say in whether or not that child is aborted.[35]  The Bill would have required a woman seeking termination to provide a list of putative fathers who would then be tested to confirm paternity; the man identified as the father would have to give his written consent before the termination could go ahead.  The provision would have been protected by robust legal safeguards.

In Missouri, another Bible-belt state, a similar Bill was launched requiring a father’s consent before an abortion could be performed;[36] the response from pro-abortion campaigners was predictable and they sought to turn it into a debate about rape (which was specifically excluded from the Bill).

Proponents of introducing some level of involvement for fathers accept that it would not be possible for a father to prevent an abortion; anti-feminist journalist Neil Lyndon wrote in 1992, [37]

Women who choose to have an abortion might be a good deal better off if their men were required to endorse and support their decision.  If the man agrees, the burden of the decision will be shared.  If the man does not agree, he ought to be provided with a means to say so.  His opinion ought, at least, to be registered and recorded.

Needless to say, the sisterhood was outraged: a man has no business expressing any views at all on abortion.  On Woman’s Hour, staunch feminist Jenni Murray told Lyndon, “A woman’s rights over her own body must be indisputable.”[38]

This standard argument might apply when an abortion is requested to protect a woman’s physical health, but most are procured to protect her mental health, and that invites a comparison with the effect the abortion will have on the man’s.  Is a man’s mental health of lesser consequence?

Studies into men’s reactions to abortion are rare; they have found that men experience high levels of anxiety, grief, guilt and helplessness; they have difficulty concentrating and confusion about their role in a society which expects them to care for and support their children while denying them any ability to care for them before birth.  They feel under pressure to be stoical in support of their partners’ decision while suffering profoundly themselves.[39], [40]  There is often a profound sense of loss, particularly amongst men who disagreed with the decision.

Abortion often leads to sexual and trust difficulties and relationships often do not survive, with a failure rate between 25 [41] and 70%.[42]  Many men were profoundly troubled at the thought that they had helped end a life they had set in motion.[43]  Abortion exposes the huge power imbalance between men and women; one study found that fathers lagged behind parents, family and friends in the decision-making process: the father was the person most likely to oppose the decision and lest likely to influence it, with only 28% supporting it.[44]

Some argue for a “male abortion”: the right of a father to relinquish any legal right or responsibility over a child he has not wanted but which the mother will not abort.  Marcus Nilsen, chairman of the youth wing of Sweden’s Liberal Party (which also courts headlines by advocating incest and necrophilia), says, “men should have an equal right to opt out of parenting and choose whether or not to become a parent”.[45]  Such a right would extend to the 18th week of pregnancy and be irreversible.  The idea is actually a feminist one, based on giving women a right to raise children without the interference of an indifferent father.

So, what of the future?  It seems probable that the law will continue to take into account developments in medical technology and that the time limit will periodically decrease, though pressure from the “pro-choice” lobby will likely force a compromise – perhaps to 16 weeks; the current limit is based on a situation that obtained a quarter of a century ago.  We might also expect to see some attempt to curb “social” abortions.  However, it is unlikely, in my view, that we shall see any greater involvement of fathers in abortion, and that may well be why J4MB are not including it in their campaigning.

All pendulums swing only so far.  The huge widening of acceptance enabled by the 1967 Act has prepared the way for acceptance in other areas of legislation: what was unthinkable yesterday is seriously considered today and becomes routine practice tomorrow.  Progress made on abortion may eventually make the legalisation of euthanasia more acceptable; it might encourage some to consider infanticide, which is becoming a popular discussion in some quarters.  Legalising abortion, even in the restricted way we have, undermines the status of the human embryo so that some call this bundle of cells, packed with human potential, a “parasite”, a mere blob of “jelly”, “foetal waste”.

But one day the pendulum will swing the other way – recent advances in imaging technology which enable us to see the developing embryo in three dimensions or as a video, moving in real time, show us a creature which is recognisably human and aware at a much earlier stage of development than we had previously imagined: pressure will also grow to restrict abortion further.

Ultimately, abortion is a failure.  It is the failure of birth control.  It is the failure of family planning.  It is the failure of public policy.  It is our failure of us as humans.

[1] Ross, A. B. (2002). Miss Julia Throws a Wedding. Penguin.

[2] Department of Health. (2016). Abortion Statistics, England and Wales: 2015.

[3] Ehrlich, P. R., Ehrlich, A. H., & Holdren, J. P. (1977). Ecoscience: population, resources, environment.

[4] Guibilini, A., & Minerva, F. (2011). After-birth abortion: why should the baby live? Journal of Medical Ethics.

[5] Engel, J. (2004). Abortion Law Reform. Retrieved from http://www.cmf.org.uk.

[6] Birkett, W. N., & Thurtle, D. (1939). Report of the Interdeparmental Committee on Abortion. London: Her Majesty’s Stationery Office.

[7] Society for the Protection of Unborn Children. (1994). Love your unborn neighbour. London.

[8] Op. Cit., Department of Health.

[9] Save the Children. (2013). Surviving the First Day: state of the world’s mothers 2013. Save the Children.

[10] Wikipedia. (2016). Fetal Viability. Retrieved from en.wikipedia.org.

[11] Ibid.

[12] Department of Health. (2014). Guidance in Relation to Requirements of the Abortion Act 1967. London.

[13] Bates, C. (2011, July 05). Revealed: The thousands of pregnancies aborted for ‘abnormalities’ including cleft palates and Down’s syndrome. The Daily Mail.

[14] Jepson v The Chief Constable of West Mercia Police Constabulary, [2003] EWHC 3318 (High Court 2003).

[15] McVeigh, T. (2016, November 20). Victorian abortion law ‘breaches human rights’. The Observer.

[16] Spillett, R., & Brooke, C. (2015, December 17). The Daily Mail. Mother who forced a miscarriage when she was over 32 weeks pregnant by taking poison because she ‘couldn’t deal with the stress’ is jailed for two and a half years .

[17] BBC News. (2012, September 17). Sarah Catt jailed for full-term abortion of baby. Retrieved from http://www.bbc.co.uk/news.

[18] BBC News. (2013, June 12). Sarah Catt’s jail term for full-term abortion reduced. Retrieved from http://www.bbc.co.uk/news.

[19] BBC News. (2012, June 15). ‘Poison doctor’ Edward Erin jail term is extended. Retrieved from http://www.bbc.co.uk/news.

[20] BBC News. (2011, June 28). ‘Poison doctor’ Edward Erin struck off for abortion bid. Retrieved from http://www.bbc.co.uk/news.

[21] Hills, S. (2013, October 30). Cheating boyfriend jailed for trying to abort his unborn child by giving his pregnant partner miscarriage-inducing drugs. The Daily Mail.

[22] R v Akhtar Dogar, Anjum Dogar, Kamar Jamil, Mohammed Karrar, Bassam Karrar (Central Criminal Court June 27, 2013).

[23] Buchanan, M. (2014, December 28). General Election Manifesto: 2015. Justice for Men and Boys.

[24] Op. Cit., Department of Health.

[25] Argent, V. (2008, May 17). Why this abortion doctor wants to see time limits reduced to 16 weeks. The Daily Telegraph.

[26] National Collaborating Centre for Mental Health. (2011). Induced Abortion and Mental Health: a systematic review of the mental health outcomes of induced abortion, including their prevalence and associated factors. London: Academy of Medical Royal Colleges.

[27] Fergusson, D. M., Horwood, L. J., & Boden, J. M. (2013). Does abortion reduce the mental health risks of unwanted or unintended pregnancy? A re-appraisal of the evidence. Christchurch, New Zealand: Department of Psychological Medicine, University of Otago, Christchurch.

[28] Allen, I., Dowling, S., & Rolfe, H. (1998). Teenage mothers: housing and household change, ESRC Research Results [Population and Household Change Research Programme], no. 10. Oxford: Oxford Brookes University.

[29] Health & Social Care Information Centre. (2013). Hospital Episode Statistics: NHS Maternity Statistics 2012-13.

[30] Office for National Statistics. (2015). Conceptions in England and Wales, 2013.

[31] Paton v British Pregnancy Advisory Service Trustees, [1978] 2 All ER 987 (Queen’s Bench Division 1978).

[32] Paton v UK, [1980] EHRR 408 (European Court of Human Rights 1980).

[33] C v S, [1987] 2 WLR 1108, 1 All ER 1230 (Queen’s Bench Division 1987).

[34] Gillan, A. (2001, March 31). Sad tale of an affair that ended and an abortion row that goes on and on. The Guardian.

[35] Lyndon, N. (2014, May 28). Abortion: why aren’t men allowed a say? Daily Telegraph.

[36] Wetzstein, C. (2014, December 30). Missouri bill to require father’s consent on abortion revives men’s rights issue. Washington Times.

[37] Lyndon, N. (1992). No More Sex War. Sinclair-Stevenson Ltd.

[38] Op. Cit., Lyndon, N. (2014).

[39] Gordon, R.A. & Kilpatrick, C. (1977). A program of group counseling for men who accompany women seeking legal abortions. Community Mental Health Journal, 13, 291-295.

[40] Coyle, C.T. (1997). Forgiveness intervention with postabortion men. Journal of Consulting and Clinical Psychology, 65, (6), 1042-1046.

[41] Shostak, A. & McLouth, G (1984). Men and abortion: Lessons, Losses, and Love. New York: Praeger

[42] Milling, E. (1975, April). The men who wait. Woman’s Life, 48-89, 69-71.

[43] Op. Cit., Shostak, A. & McLouth, G

[44] Ajzenstat, J., E. Cassidy, E., Carter, E., & Bierling, G. (1994). Going It Alone; Unplanned single motherhood in Canada. deVeber Institute.

[45] RT News. (2016, March 06). Legal ‘male abortion’ on table in Sweden thanks to Liberal Party’s youth wing. Retrieved from http://www.rt.com.

Virtual Reality

In Moscow, a woman called the police, claiming she had been raped by a Pokémon character.[1]  For the uninitiated, these are imaginary cartoon figures in a children’s virtual reality game played on smart-phones.  She said that it had entered her bedroom at night and raped her in her sleep; when she woke, she found the huge character lying on top of her.  She jumped out of bed and it disappeared.

He husband didn’t believe her and said she needed to seek psychiatric help.  Her friend, Ivan Makarov, however, said that there were too many of these characters in her home and that her dog could sense them.  The woman booked an appointment with a psychiatrist.

Now, imagine that the woman had accused, not an imaginary cartoon character, but her husband of rape.  Imagine that her equally nutty friend, Ivan, had confirmed the allegation.  Imagine that the allegation was made in a jurisdiction, like ours, in which the police and social services operate a “believe the victim” policy.  It’s actually a rather more likely scenario.  Is there any way the husband could have escaped prosecution and conviction?

 

A daughter alleged that her father had raped her eight times over a six-year period.  The interview with the police conducted under the Achieving Best Evidence (ABE) guidelines reveals detailed descriptions of each assault and, in particular, accounts of how they made the girl’s body feel.  The allegations are particularly compelling and the father’s only response is to deny them.  It looks like an open-and-shut case.

A week before the trial, a barrister, Cathy McCulloch, is brought in to represent the father in court.  She reads the ABE interview and is struck – as no one else has been – by the “use of certain words, phrases and descriptions” which seem beyond the girl’s years.  This is a common indication that an allegation is false, but not always easy to prove.

Questioning the father, the barrister uncovers that the girl’s favourite book is Fifty Shades of Grey, an explicitly erotic novel; the father knows nothing about this book.  The instructing solicitor’s representative buys a copy of the book, reads it, and realises that there are far too many similarities between the book and the ABE interview for it to be coincidence.

In court, on the third day of the trial, the girl admits she had made the whole thing up, basing her allegations on Fifty Shades of Grey and other books, which she names.  McCulloch has ended the case after seven minutes of cross-examination.[2]

 

Father John Taylor had a dinner date with a twenty-eight-year-old woman after his marriage broke down and his Hungarian wife returned to Hungary with their children.  They had consensual sex.  The woman then went to the police and claimed Taylor had raped her; he was arrested.

Taylor’s life fell apart; he lost his job, and his health; he was shunned by parishioners, his car was vandalised three times, and he was denied contact with his children.  The case was eventually dropped when it was revealed that the woman had based her rape allegation on a description she’d read in a Martina Cole novel.[3]

 

These men were very lucky to be spared gaol sentences; many are not so lucky.  Father Taylor and the man identified only as WX had – or could afford – legal teams who were able to spot the flaws in the prosecution’s case.

It is here that my own interest is piqued: as an old English literature graduate, I am aware that the operation of the law often comes down to the careful, forensic examination of literary texts: witness statements, ABE interviews, etc.  A single word here or there can expose a liar and turn the course of a case.

I also have a more personal interest, as someone against whom false allegations have been made, initially in court, in order to thwart an application for contact, and later, to the police, in order to destroy my reputation and my career.

Ultimately, both failed (no thanks to the courts), but I am acutely aware that, even in the most balanced and fairest of systems, these cases often boil down to one person’s word against another’s.  If you have a friend like Ivan, it is then two people’s word against another’s.

But we don’t have the most balanced and fairest of systems.  We have a system in which there are two major flaws.  The first, as I identified in my last blog post, is the move towards “therapeutic jurisprudence”.  That is, a system of jurisprudence in which the aim is not to deliver justice, but to grant self-identified “victims” and “survivors” an opportunity to have their say and to achieve “closure” without their accounts being doubted or cross-examined.

The intentions behind this are often benign, aiming to encourage more genuine victims of rape and sexual abuse to come forward without fear of confronting their abusers in court, but it is achieved by gravely eroding or eliminating the traditional legal safeguards, such as the separation of powers between the judiciary and the executive, judicial independence and objectivity, the right to be presumed innocent until proven guilty, the right to due process, the right to be tried in public, the right to confront one’s accusers, the right to equality of arms, the right to consult an expert of one’s choice, and even the right to communicate in confidence with one’s own lawyers.

The result may be fewer perpetrators escaping justice, but there is also a huge rise in the number of false allegations and a commensurate fall in the ability of the innocent to defend themselves.  The presumption of innocence, the fundamental rock upon which the criminal law is founded, is stood on its head; the onus on the complainant to provide sufficient evidence to prove the accused guilty is inverted.

This is further enabled by the erosion of the legal presumption against the use of similar fact evidence by a series of cases and changes in legislation (DPP v P [1991] 2 AC 447 and R v H [1995] 1 AC 596 and the Criminal Justice Act 1988 and Criminal Justice and Public Order Act 1994).  Similar fact evidence, often acquired through police trawling expeditions, now substitutes the need to present solid, verifiable evidence to support the allegation of a crime.

Much of this change is less than benign, however, and has been enabled through the interference of politicians.

Tony Blair, for example, demonstrated his contempt for the falsely accused and the wrongly convicted in 2002, [4]

The biggest miscarriage of justice in today’s system [is] when the guilty walk away unpunished.

Helena Kennedy QC observed that in a single sentence he had—[5]

sought to overturn centuries of legal principle, a complete reversal of the approach to justice that every mature democracy in the world respects, whereby the conviction of an innocent man is deemed the greatest miscarriage of justice.

This, of course, was Blair’s point: to change the law so that a mere allegation would result in conviction without the tiresome necessity of proof – who could possibly object if it protected a child from abuse?

This is the danger the Independent Inquiry into Child Sexual Abuse (IICSA) now faces (under its fourth chairman).  Although it’s “believe the victim” focus is well-intentioned, it will inevitably identify innocent men – some aging, some dead – as the perpetrators of historic abuse.  The inquiry risks becoming bogged down in these cases – consider, for example, the determination of Lord Janner’s family to have his name removed from the inquiry – rather than identify positive ways of enhancing child protection in the future.

This brings us to the second huge failing of the system, which is a tendency to believe all men capable of abuse, but no women.  Why have all the people identified by Theresa May and her successor, Amber Rudd, as suitable to lead the IICSA been women?  How many women have there been amongst the thousands of accused named in the inquiries and police operations since this witch-hunt began?  Remember the words of May’s rival, Angela Leadsom?[6]

As an employer we’re not, let’s face it, most of us don’t employ men as nannies, most of us don’t.

Now you can call that sexist; I call that cautious and very sensible when you look at the stats.

Your odds are stacked against you if you employ a man.

We know paedophiles are attracted to working with children.

I’m sorry but they’re the facts.

This presumption that paedophiles can only be male is on the same intellectual level as Queen Victoria’s belief that women cannot be homosexual,[7] a belief reflected in our laws which have never sought to control the behaviour of lesbians.  It is a belief founded in blind prejudice: a determined resolve not to let the true “facts” intrude.

As I have said before, all the allegations on which the IICSA was founded have crumbled: the complainants have been exposed as liars and fantasists and the police lines of enquiry have been closed.  This leads the Inquiry floating in space, unsupported by anything other than these prejudices.  Alexis Jay must now keep this vast and growing edifice in the air.  She will not find it easy.

 

[1] Holmes, S. (2016, August 11). Woman tells police she was RAPED by a Pokemon Go character after she felt an ‘assault’… and the virtual reality game detected the creature in her bedroom. Daily Mail.

[2] McCulloch, C. (2016, August 05). Fifty Shades Incest Acquittal. Retrieved from http://www.stedmund.co.uk.

[3] The Telegraph. (2013, April 16). Crime novel inspired woman to falsely accuse priest of rape. The Telegraph.

[4] Blair, T. (2002, June 18). Full text of Tony Blair’s speech on reforming the criminal justice system. The Guardian.

[5] Kennedy, H. (2004, November 27). For Blair there is no such thing as legal principle. The Guardian.

[6] Sculthorpe, T. (2016, July 15). May urged to SACK Andrea Leadsom just a day after putting her in the Cabinet as it emerges she claimed it was ‘sensible’ not to have a male nanny in case he’s a paedophile. Daily Mail.

[7] Yes, I know this is actually a myth, invented by Australians in 1977, but I’m sure you can see the point I’m making.

How Operation Hydrant became Operation Hydra

False allegations have featured prominently in the media over the last few days.  Whether this is meaningful, and indicative of something in the air, or merely coincidental, remains to be seen.  Before I go further, I have enormous sympathy for the genuine victims of childhood sexual abuse; there are a number of such people in my family and their views have influenced my own.  This article isn’t about them – it’s about allegations which are false.  News items which have caught my attention include some truly awful stories which demonstrate what happens when people make false allegations; this has now received academic confirmation in a study into the effects of false allegations by the University of Oxford; finally, we have had the latest episode in the long-running farce that is the Independent Inquiry into Child Sexual Abuse (IICSA).

First, to make it clear what we are talking about, those true stories.  A year ago, a vulnerable teenager, Jay Cheshire, hanged himself following a false allegation of rape by a fellow teenager, despite the fact that she had retracted the allegation two weeks after making it.  Jay’s mother, Karin, had been at Jay’s hospital bed-side when his life support was turned off.  This year, on July 18th, unable to live without her beloved son, Karin Cheshire hanged herself.[1]  The girl who was the cause of this dreadful double tragedy, of course, remains anonymous, a privilege accorded those who make false allegations, but not to their victims.

The second story concerns former fire chief, David Bryant, who was sentenced to six years for allegedly raping fourteen-year-old Danny Day in the mid-1970s.  He and another fireman, now deceased, had allegedly raped Day over a pool table in the fire-station.  When the Attorney General complained the sentence was too lenient, the Court of Appeal increased it to eight-and-a-half years.

Bryant’s indomitable wife, Lynn, worked incessantly to prove her husband’s innocence, uncovering, for example, the fact that the pool table in question had not been bought until the 1990s.  However, it was only when Day overreached himself, claiming compensation for the ruin of a non-existent boxing career, that she was able to persuade a number of lawyers and investigators to work on the case pro bono and expose Day as a compulsive liar.  Bryant was eventually released on July 15th after serving three years of his sentence.[2]

The cases showed that the theoretical protections for the innocent – a jury of one’s peers, the presumption of innocence, the burden of proof on the accuser to prove their allegation, the Court of Appeal itself – had been entirely inadequate to prevent the conviction of an innocent man AGAINST WHOM THERE WAS NOT A SHRED OF CORROBORATIVE EVIDENCE.  It showed how willing both professionals and the public are to dispense with these safeguards when presented with lurid allegations of sexual impropriety.

Barrister Barbara Hewson blamed this on former Director of Public Prosecutiond Keir Starmer’s “believe the victim” ideology; a “narrative of victimology and vulnerability” had “encouraged a toxic band of opportunists, attention-seekers and fantasists, for whom the compensations of being a victim are impossible to resist”.  She called for “much more exacting standards” from the criminal justice system.[3]  To be fair to Starmer, he cannot take credit for “believe the victim” which has its origin in the “believe the child” movement of the 1980s.

In May, Oxford University published a report into the impact of false allegations.[4]  It noted that a combination of the “prevailing cultural discourse and consequent preconceptions about sexual predators and their alleged victims” and a belief that in the past allegations had not been taken sufficiently seriously had led to “the moral imperative not to ‘let down another victim’ or to leave a possible sex offender free to cause further harm” and an increased likelihood that innocent people would be “presumed or found guilty”.  The burden of proof had been reversed: “The risk now is that mistaken or dishonest allegations of child abuse or rape are more likely to be taken as true, unless there is objective evidence to invalidate the claim”.  In this culture, the risk of a miscarriage of justice is “unusually high”.

The report notes the exploitation by the police of a weakening of case law limiting the use of similar fact evidence to facts which were “strikingly similar”.  This followed the rulings by former Lord Chancellor, Lord Mackay, in DPP v P [1991] 2AC 447 and R v H [1995] 1 AC 596 which meant that henceforth the courts would presume similar allegations to be true, thus ensuring that unreliable and prejudicial evidence would regularly form the basis on which criminal proceedings were tried.[5]  In 1988 The Criminal Justice Act allowed conviction purely on the evidence of an alleged minor victim; corroboration was unnecessary.  The Criminal Justice and Public Order Act 1994 extended this to adult complainants.  Juries were obliged to accept a complainant’s testimony as fact, and the “beyond reasonable doubt” principle was jettisoned.  The onus was now on the defendant to prove his innocence.

These developments enabled the police to conduct “trawling” or “dip sampling” operations, contacting potential witnesses who had not yet been implicated; this was particularly applicable to allegations concerning residential schools and care homes.  Simultaneously, the police used personal injury solicitors to recruit witnesses using the lure of substantial compensation pay-outs, particularly targeting prisons where so many care home children end up.  It is almost impossible to gather dependable evidence by this means.  For genuine victims, financial compensation for sexual abuse is nothing short of prostitution.

The report revealed the enduring trauma, destroyed careers, damaged reputations, huge financial penalties, lost friendships, relationships and professional associations, damaged mental health, reasonable fears of further allegations.  Much anger is directed, not just at the accusers, but also at the employers, police and criminal justice system which enable false allegations and fail to protect the victims.  The researchers were shocked by the extent to which a false allegation can impact every aspect of a victim’s life; they observed that a quarter of school and college staff report being the victims of false allegations and that this drives good people out of the profession and deters others from joining: false allegations are a serious social problem and the dominant “believe the victim” discourse needs to be re-evaluated.

The Independent Inquiry was built on very shaky foundations.  To understand this story, we need to go back a few years to 3rd October 2012 and the broadcast of an ITV documentary, Exposure: The Other Side of Jimmy Savile, presented by moral crusading copper-turned-TV investigator Mark Williams-Thomas.  In the programme, a number of women claimed they had been assaulted by Jimmy Savile as teenagers; following the broadcast, more claimants came forward.

On the 9th October, the Metropolitan Police announced Operation Yewtree, to be run jointly by the Met and the NSPCC.  The alarming feature of the investigation was the pledge made by the police that they would unquestioningly believe whatever the “victims” told them.  With the media, MPs and charities like the NSPCC and NAPAC (National Association for People Abused in Childhood) jumping on the bandwagon, the only certainty was that allegations would increase.  Many, if not most, often more than fifty years old, were without evidence and could not be proven, despite the belief of the police that the sheer number, inflated by trawling exercises, was evidence enough.

Peter Spindler, the Metropolitan Police Commander who led the operation, clearly failed to comprehend the implication of the word “alleged” when he said,

We are dealing with alleged abuse on an unprecedented scale.  The profile of this operation has empowered a staggering number of victims to come forward to report the sexual exploitation which occurred during their childhood.[6]

Spindler had formerly been in charge of a Metropolitan child abuse team and had sent its members on an “satanic ritual abuse” awareness course run by self-proclaimed survivor, Lee Moore.[7]

The fact that Savile had died in 2011 meant the allegations against him would never be tested in court, allowing the investigators to give them greater credence than they would otherwise have merited.  Complainants were infantilised by introducing the principles of child welfare and “therapeutic jurisprudence” into criminal proceedings, under which the traditional legal safeguards were gravely eroded or eliminated, such as the separation of powers between the judiciary and the executive, judicial independence and objectivity, the right to be presumed innocent until proven guilty, the right to due process, the right to be tried in public, the right to confront one’s accusers, the right to equality of arms, the right to consult an expert of one’s choice, and even the right to communicate in confidence with one’s own lawyers.

The final joint report by the Met. and NSPCC in January 2013, Giving Victims a Voice, relied heavily on the sheer number of alleged victims – 589 – rather than on solid evidence, and treated every complainant as a victim, every allegation as evidence and every accusation as a crime,

Taken together their accounts paint a compelling picture of widespread sexual abuse by a predatory sex offender.  We are therefore referring to them as “victims’ rather than “complainants’ and are not presenting the evidence they have provided as unproven allegations.[8]

[My emphasis]  Unproven allegations, however, is what the evidence was.  Former editor of The Telegraph, Charles Moore, wrote, not in defence of Savile (“I believe that Jimmy Savile did horrible, criminal things to young people”), but in horror at the manner in which normal legal process had been subverted,

[The report] assumes that because allegations were made, the offences were committed.  It declares that 214 incidents have now been “formally recorded” as crimes.  It treats allegations as facts.  By doing so, it undermines justice.[9]

Operation Yewtree involved the arrests of a further eighteen men.  Freddie Starr, Jim Davidson, Jimmy Tarbuck, Paul Gambaccini, Cliff Richard, and others were released without charge (though Starr later lost a defamation case, held without a jury).  To date, the operation has uncovered only two genuine and relatively obscure paedophiles: Chris Denning, a former Radio One disc-jockey and Michael Salmon, a doctor at Stoke Mandeville.

The publicist, Max Clifford, was found guilty on eight of eleven charges and sentenced to eight years’ imprisonment.  The prosecution bragged that it gave “confidence to other victims” that a conviction could be secured after so long and with no corroborative evidence.[10]  Lacking corroboration, prosecutors relied again on the quantity of allegations to establish a pattern of behaviour.  The jury was never asked to find on the worst allegation, an assault on a twelve-year-old; they accepted only one allegation involving a fifteen-year-old, and his other “victims” were all adults, but that was enough to see him branded a predatory child sex offender by the tabloids.

Dave Lee Travis was found guilty of a single assault out of fourteen historic charges and received a suspended sentence but was left financially ruined.  His “victim”, a stand-up comedienne whose clothed breast he had allegedly touched, had joked about the incident in her act and admitted in a radio programme that she could not be sure whether the deed had been deliberate or accidental.  Her vivid victim impact statement was clearly written for her by lawyers.

Eighty-four-year-old Rolf Harris was found guilty on all twelve charges against him.  Again, no corroborative evidence was offered to support the allegations, and an examination of the counts makes disturbing reading.

Count one, for example, involved an allegation by a woman who claimed Harris had touched her inappropriately at a tiny community centre in Leigh Park, Hampshire, in 1969 when she was seven or eight.  An extensive trawl of local papers and council records several years either side of the date, and letter drops appealing for witnesses, provided no evidence whatsoever that Harris had ever been there.

It is improbable that any of the allegations against Harris, individually, would have persuaded a jury, but collectively they carried more weight, as each allegation supported its fellows and established a pattern of behaviour.  Further allegations were presented relating to incidents in Malta, Australia and New Zealand, but these had never come to court and had not been proven.  Had Harris been tried in Australia, where evidence of this kind is referred to as “evidence of tendency and coincidence”, it is likely there would have been four separate trials; the reason such practices are forbidden in some jurisdictions – and used to be in the UK – is that they gravely erode the presumption of innocence and the rule of law.

Yewtree was severely criticised, not least for allowing ideologically-driven pressure groups like the NSPCC (which wants the monopoly on what constitutes child abuse) and NAPAC (which wants to replace the NSPCC as the go-to organisation for child abuse) to influence the progress of a police investigation; it was a “runaway train” and the police operated an “arrest first, gather evidence later” policy.[11]  Yewtree undermined the rule of law and turned policing into entertainment; it was a “prurient charade”:[12] a crude cultural “carnival”[13] in which the icons of our childhoods became the scapegoats of today; it put the past on trial, judging the hedonism and sexual license of the 1960s and ‘70s by the priggish moral standards of 2013.  Sociologist Frank Furedi observed that Yewtree was never about investigating or fighting crime: it was “more like a propaganda campaign or a moral crusade”.[14]  An unnamed barrister said,

This country is now completely fucked-up over anything to do with accusations of abuse; it’s produced a licence for the individual to get compensation and for charitable organisations to bleed people dry, all in the name of protecting children.

Everyone is afraid to criticise today’s abuse gravy train for what it is and the built-in bias of the police and CPS has provided both the perfect blunt weapon for anyone looking to take revenge against someone they don’t like and a simple way for opportunistic individuals to make some money.[15]

More allegations were made in 2012 by an individual still identified only as “Nick” against former Home Secretary, Leon Brittan, former Chief of the Defence Staff, Lord Bramall and the late Edward Heath.  “Nick” said it was all “just a joke, to start with”, but his claims were taken up by the now defunct website Exaro News which also published allegations by another witness, referred to as “David”.

The case against Brittan, concerning a rape allegedly committed in 1967, had been so insubstantial that the Metropolitan Police Service did not even inform him of the initial complaint.  This had led one complainant – a Labour Party Activist with a history of false allegations – to complain further to the police, the media and Tom Watson MP – now deputy leader of the Labour Party; this time Brittan was interviewed, and a file sent to the CPS who told the police no fewer than three times to drop the case due to the complete lack of credible evidence.[16]  The police feared, however, that in the highly charged atmosphere of the time, taking no action would have been unacceptable to the public and the media, so they allowed a sick man they knew to be innocent to be hounded literally to his death in January rather than face the fury of the mob.  In October, Scotland Yard eventually apologised to Brittan’s widow[17] and released a statement which exposed their contempt for justice and the rule of law, and their utter subservience to public hysteria,

A decision to take no further action in respect of this allegation would undoubtedly have resulted in media criticism and public cynicism.  Lord Brittan could not therefore, at that point, have been informed that no action was to be taken…

“Nick” accused the D-Day veteran, Lord Bramall, of having abused him at an army base in the 1970s and ‘80s.  The case was so weak that the police did not refer it to the CPS; even Nick’s family submitted evidence which contradicted his claims.[18]

Theresa May had launched the Independent Inquiry on the day Leon Brittan was accused.  There was political pressure on her and the government to appear tough on child abuse and be entirely transparent about the past.  This pressure had been generated by the dredging up of old allegations by the late MP Geoffrey Dickens.

Claims were made that Dickens had compiled an “explosive” dossier of paedophile allegations which he had allegedly handed to Leon Brittan in 1984 when he was Home Secretary, and that this had since disappeared.  A copy had apparently been given to the Director of Public Prosecutions.  No one knew who was accused in this dossier or what the allegations were; this imprecision enabled an assortment of fantasists and political opponents to make a series of wild allegations.  The Metropolitan Police established Operation Fairbank as an umbrella operation to determine their scope.

Operation Fernbridge was launched in February 2013 to investigate claims made by Tom Watson that during the 1970s and ‘80s a paedophile ring had operated a brothel out of the Elm Guest House in South West London, supplying boys from Grafton Close Children’s Home in Richmond to politicians and other prominent men.  Regulars were rumoured to have included the Liberal MP Cyril Smith, Anthony Blunt and several Labour and Conservative politicians.

In 2015, Operation Fernbridge was shut down and replaced by Operation Athabasca, which also included investigations by the Greater Manchester Police under Operation Jaguar into allegations that Cyril Smith had raped boys at the Knowl View School and Cambridge House Hostel.  The owners of Elm Guest House, Haroon and Carole Kasir, were convicted of running a brothel, but no other allegations were proved.

It is almost certain that Dickens’ dossier, if it had existed at all, had been no more than anti-Semitic and homophobic raving.  Together with his colleague, David Wilshire MP, Dickens had been engaged in anti-occult activity, convinced that Satanists were sacrificing children, and had helped drive the satanic panic of the 1980s and ‘90s.  Dickens had wanted occult literature banned, and proposed to introduce a Private Member’s Bill making the practise of witchcraft illegal,

If we are to protect children from their sordid, sexual and diabolical grasp, we must bring in new laws to wipe witches off the face of the earth.[19]

Babies and young children, he said, were being sacrificed to the Devil in rituals all over Britain, “Six hundred children go missing every year.  At least 50 of these children are simply never found again…. With witchcraft sacrifice nothing is ever found”.[20]

The Independent Inquiry, despite receiving up to 100 fresh allegations each week and expected to run for 10 years,[21] had named only one suspect, Labour peer and prominent Jew, Lord Janner; this was, respected legal journalist, Joshua Rozenburg, pointed out, beyond its remit, even unlawful.[22]  At the time Janner was identified he was suffering from severe dementia and was deemed by Alison Saunders, the Director of Public Prosecutions, unfit to face prosecution, but the decision was overturned following a public outcry; in December 2015 Janner died, but the investigation, and the allegations, some dating back to the 1950s, continued.  In July 2016, the Mail on Sunday found that the principal witness against Janner, a registered sex offender himself, had made false allegations of abuse against the head of a care home he had attended at the same time as he made his allegations against Janner.[23]  It was also reported that another allegation had been dropped after passport records revealed Janner had been in Australia at the time, and not in Scotland;[24] the hearing into Janner was postponed until March 2017; Janner’s children insisted on his innocence and began moves to have him removed from the inquiry altogether.  Eleven police investigating the case were themselves  investigated for alleged criminality and gross misconduct.

In June 2014, Theresa May, the Home Secretary, announced Operation Hydrant, which became the overall coordinating operation, led by the National Police Chief’s Council; by December 2015 it was investigating 2,228 suspects, all of them men.  302 were prominent figures and the rest had worked at 761 religious, medical, educational, young offenders’ and other institutions.  286 were deceased, but this inconvenience didn’t seem to deter the investigators.  Former prime minister, Edward Heath, was investigated by more than a dozen police forces – principally Wiltshire, under Operation Conifer – despite having died in 2005 and despite a lack of credible evidence against him.  Former MP Harvey Proctor called a press-conference in which he revealed in graphic detail the allegations against him – including the torture and murder of two boys –  and claimed he was the victim of a “homosexual witch-hunt”.  Chris Fay, the social worker who had accused Procter and others had been exposed as a convicted fraudster.  Another, unnamed, “victim” had been convicted for making hoax bomb calls and had falsely confessed to murder.[25]

Operation Midland was set up by Scotland Yard in November 2014 to investigate Nick’s claims of a high profile paedophile ring centred around the Dolphin Square estate in Pimlico, and the alleged deaths of three boys.  Senior officer Detective Superintendent Kenny McDonald called the allegations “credible and true”, but Scotland Yard retracted this view in December, admitting they had given the impression they were “pre-empting the outcome”.[26]  By September 2015 the operation had uncovered no evidence at all.

Operation Cayacos investigated allegations of a paedophile ring centred on the founder of the Paedophile Information Exchange, Peter Righton, resulting in two convictions.

Operation Whistle ran under the auspices of Hydrant in the States of Jersey, following allegations against 45 individuals either dead or unidentified and 13 high profile suspects, including Heath and Jimmy Savile.  Again, nothing substantial was found and an item initially identified as a fragment of a child’s skull turned out to be a bit of coconut shell.

Operation Garford reviewed a 1992 investigation into historic allegations centred on Kesgrave Hall School and two other schools in Suffolk.

Further inquiries were run by the Independent Police Complaints Commission into allegations of corruption and cover-up by the Met.; by the NSPCC’s chief executive, Peter Wanless, into allegations the Home Office had covered up and mishandled historic allegations (which found no evidence); in Northern Ireland to establish whether there had been systemic failings by institutions or the state in their duties towards children in their care between 1922-95; in Scotland, following scandals involving alleged child abuse at institutions including those run by the Roman Catholic church; in North Wales to investigate allegations of abuse in children’s homes between 1963 and 1992; and on Jersey, Frances Oldham QC began an inquiry into historical allegations against the island’s care system.

The total cost to the taxpayer of this extraordinary moral panic can only be guessed at; Dame Lowell Goddard was being paid around £500,000 to head an inquiry employing 155 staff and dozens of lawyers and estimated to cost £100 million if run for 5 years.  The remit is huge, covering Parliament, the armed forces, the Roman Catholic and Anglican churches, schools, children’s homes, the internet, etc.  The question Goddard was tasked with answering was whether these institutions had adequately protected young people in their care, but if the question whether the abuse alleged ever took place cannot be asked, the primary question cannot be answered.  In some police forces it is claimed that a quarter of their staff are engaged on these operations.[27]  It’s powers are similarly unrestricted, able to label someone a paedophile without evidence, trial or due process.  One commentator suggested the inquiry “seems to have a remit to examine every instance of institutional sexual abuse of a British child anywhere in the world, dating back to 1945“.  Recent estimates that it could last 20 or 30 years are simply another way of admitting that it may never end: Operation Hydrant has become Operation Hydra.

It has become hijacked by child abuse charities and campaigners which promote a scare-mongering agenda that the bulk of child abuse isn’t reported, that it goes on behind closed doors, that we are living through an epidemic of child abuse, but who can offer no evidence at all for their claims.  They have dictated the selection of the inquiry chairmen and the character of the inquiry.

Far from being a forensic analysis of the extent of child abuse and the competence of institutions to tackle it, therefore, the Goddard Inquiry became a vast state-funded propaganda machine in which allegations are accepted without question or cross-examination and claimants are treated, prejudicially, as “survivors”.  This raises the purpose of the inquiry, which can have no practical application, can never deliver justice, and seems rather to be an exercise in offering the victims a therapeutic experience and emotional closure

All of the initial allegations upon which the huge edifice of the Independent Inquiry was built have crumbled: the accused were innocent, their accusers were liars, crooks and fantasists, there were no paedophile rings, no establishment cover-ups.  The only appropriate course of action now must be to end this travesty.

 

 

[1] Criddle, C. (2016, July 29). Mother of son who hanged himself after being falsely accused of rape commits suicide a year later. The Telegraph.

[2] Scott, M. (2016, July 21). The shocking case of David Bryant reveals the fallacy that we can always spot a sliar. Retrieved from http://www.barristerblogger.com.

[3] Hewson, B. (2016, August 04). False Allegations: a stain on justice. Retrieved from http://www.spiked-online.com.

[4] Hoyle, C., Speechley, N.-E., & Burnett, R. (2016). The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’ Voices. Oxford: University of Oxford, Centre if Criminology.

[5] R v H [1995] 1 AC 596.

[6] Rayner, G. (2012, October 19). Jimmy Savile: police launch criminal investigation after victims claim some abusers are still alive. The Telegraph.

[7] Black, T. (2013, July 01). Jimmy Savile: the Satanic panic resurrected. Retrieved from Spiked Online.

[8] Gray, D., & Watt, P. (2013). Giving Victims a Voice. London: Metropolitan Police Service & NSPCC.

[9] Moore, C. (2013, January 11). Treating every allegation against Jimmy Savile as a “fact” undermines justice. The Telegraph.

[10] Hume, M. (2014, May 01). Clifford is a creep, but what’s that got to do with Savile? Spiked Online.

[11] Martin, A. (2013, August 22). Jim Davidson WON’T face court over sex assaults claims by ten women. Daily Mail.

[12] Hewson, B. (2013, May 08). Yewtree is destroying the rule of law. Retrieved from Spiked Online.

[13] Betts, H. (2012, December 07). The search for paedophiles is more carnival than witch-hunt. The Guardian.

[14] Dathan, M. (2016, January 28). Even the FAMILY of the man who accused war hero Lord Bramall of sex abuse say his claims are ‘fantasy’. Mail on Sunday.

[15] Peytors, R. (2013, August 17). False abuse allegations may increase after new guidelines. Retrieved from The Opinion Site.

[16] McTague, T. & Cohen, T. (2015, October 16). Revealed: CPS told police to drop the rape case against Leon Brittan THREE times but they refused even though they knew there was “not a strong case” against him. Daily Mail.

[17] Joshi, A. (2015, October 16). Police Apology Over Lord Brittan Rape Case. Sky News.

[18] Dathan, M. (2016, January 28). Even the FAMILY of the man who accused war hero Lord Bramall of sex abuse say his claims are ‘fantasy’. Mail on Sunday.

[19] Op. Cit. Glasgow Herald. (1988).

[20] Canberra Times. (1988, September 20). Devil sacrifice of children “all over Britain”. Canberra Times.

[21] Mendick, R. (2016, July 26). Goddard child sex abuse inquiry could ‘last a decade’ as hearings into Lord Janner delayed after police object. The Telegraph.

[22] Rozenburg, J. (2016, June 20). Janner: a misguided inquiry. Law Society Gazette.

[23] Dathan, M. (2016, January 28). Even the FAMILY of the man who accused war hero Lord Bramall of sex abuse say his claims are ‘fantasy’. Mail on Sunday.

[24] Leask, D. (2016, August 01). Scottish abuse allegations against late Lord Janner have been dismissed, says peer’s son. Herald Scotland.

[25] Mendick, R. (2015, September 27). “VIP child abuse ring” accuser served time in prison for fraud. Sunday Telegraph.

[26] Barrett, D. (2015, September 21). Scotland Yard admits mistake over “credible and true” paedophile inquiry comment. The Telegraph.

[27] Hoyle, C., Speechley, N.-E., & Burnett, R. (2016). The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’ Voices. Oxford: University of Oxford, Centre if Criminology.

Angry Harry Passes Away

I was very sad to hear today of the sudden death of Angry Harry from a brain aneurysm.

Angry Harry has been a great inspiration to me over the years and was rare in the men’s rights community for being able to cut through the resentment, posturing and misogyny which characterises much of the movement.

He saw and explained things with great clarity and inexorable logic; his analysis of false allegations of rape, for example is a master-class.

Here he is on male psychology:

Stumbling at the Threshold

For many men that stumble at the threshold are well foretold that danger lurks within

The following is the revised entry on Threshold from our Family Law A to Z, but I thought it would make an interesting blog post in its own right.

 

The threshold is the point at which the neglect or ill-treatment of a child justifies the mandatory intervention of the state.

Ideally social services should provide parents with the support necessary to enable them to provide care for their children at home.  Section 22C of the Children act 1989 specifies that a local authority should first attempt to ensure that a child stays with his parents, then with a person who has parental responsibility for him, or with a person who has a child arrangements order naming him as a person with whom the child is to live.  If that is not possible they are obliged to find a home with a relative, a friend or finally another person who is also a local authority foster parent.  If none of these is possible they must find him accommodation in a children’s home.

Social services are also under a statutory obligation when making a decision to consider the wishes of the child and of his parents; Section 22(4) CA1989 stipulates that before making any decision with respect to a child a local authority (LA) shall, so far as is reasonably practicable, ascertain the wishes and feelings regarding the matter to be decided of the child, his parents, any person who is not his parent but who has parental responsibility for him, and any other person whose wishes and feelings the authority considers to be relevant.

Guidance on the principles and parameters of assessing the needs of individual children and organisational responsibilities for the safeguarding of children are to be found in Working Together to Safeguard Children, published by the Department for Education in 2013:

  1. Assessment must be carried out early in a case so that alternatives can be tried before engaging the child protection system. It must be undertaken by a lead professional who should provide support to the child and his family, act as their representative and co-ordinate the delivery of support services;
  2. Everything communicated to the family must be clear and consistent and confirmed in writing;
  3. Where the lead professional believes this early support cannot resolve concerns the case must be referred to the children’s department of the LA and a social worker will then take over. The LA must acknowledge receipt of the referral and confirm what action will be taken within one working day; the full assessment must then be completed within forty-five working days from the point of referral.

It is at this point that good intentions break down; the Children Act has been blamed for ending the system’s reliance on forensic evidence and replacing it with an erratic decision-making process enabled by broad, nebulous concepts such as ‘future harm’.  The quality of these decisions became even worse following the case of ‘Baby P’ in 2007.  Everyone in the system now goes along with these decisions because they fear being discredited if they resist, and there is thus little check on the process.  There is no evaluation of any harm social work might cause – by the forced night-time removal of children, for example – and no evidence it improves matters for children.  The impulse is to remove children from risk, with little thought of what will happen to them once in care.

The first test is to determine whether the child’s carers cannot be removed from the pool of potential perpetrators; the Court of Appeal had to decide on this issue in Re B and W [1999] 2 FLR 833 in which a baby had suffered serious shaking injury at the hands either of her parents or of her child-minder.  The LA made Section 31 applications to take both the parent’s baby and the child-minder’s ten-month-old child into care.

At the full care hearing the first instance judge could not find whether the injury had occurred while the baby was in the care of her parents or of the child-minder.  He dismissed the LA’s applications on the grounds that the threshold criteria had not been met.  Instead he made a Section 40 order placing both children in care pending the LA’s appeal.

The LA duly appealed and the Court allowed the appeal relating to the baby, but the appeal relating to the child-minder’s child was dismissed.  The Section 31(2) threshold criteria had been reached in respect of the baby and the harm suffered was attributable to the lack of proper care; the word ‘attributable’ did not require the Court to find that a specified individual was responsible for the harm caused, care was often shared by a number of adults.  Risk had been proved and the child should not be left at risk because it wasn’t clear which adult had failed in their duty of care.

In the case of the child-minder’s child there was no actual harm, so the criterion to be considered was the risk of future harm; because it could not be proved the child-minder had caused the baby’s injuries it could not be established that her child was certainly at risk of harm in the future.

The parents’ appeal against the care order (Lancashire County Council v B [2000] 1 FLR 583) was dismissed; the Court ruled that the phrase at Section 31(2)(b)(i), ‘the care given to the child’, could refer to the care given by any of the care givers where care was shared.  The parents could not be removed from the pool of potential perpetrators; this is now called a ‘Lancashire finding’ after this case.

For many years, parents have complained that LAs intervene before the threshold is crossed and that parents are therefore losing their children without justification.  One case was judged by James Orrell in a mere fifteen minutes; three children were taken into care on the flimsy grounds that a bruise on the ear of one of them could have been caused non-accidentally.  In the Appeal Court, Thorpe LJ exclaimed,

I am completely aghast at this case.  There is nothing more serious than a removal hearing, because the parents are so prejudiced in proceedings thereafter.  Once you have lost a child, it is very difficult to get a child back… There is a point where a judge’s brisk conduct of business in his search for protection of a child is just not acceptable.  This does not seem to me like acceptable process or natural justice.

In July 2013 the courts finally began to acknowledge and grapple with this issue in a series of Court of Appeal rulings.  A number of subsequent judgments have refined the approach which local authorities and judges must take.

An LA must prove, on a balance of probabilities, the facts on which it relies; must show that these facts amount to the child suffering, or being likely to suffer, significant harm; and must show that the proposed course of action is the only one possible, that ‘nothing else will do’.  The best interests of the child are paramount.

Failure to do this risks unacceptable social engineering: the Court has no mandate to improve on nature or secure that every child has a happy and fulfilled life; its single task is to be satisfied the threshold has been crossed.  The starting position must be Lord Templeman’s words in Re K D [1988] AC 806,

The best person to bring up a child is the natural parent.  It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered.

Hedley J elaborated on this in Re L (Children) (Care Proceedings: Significant Harm) [2006] EWCA Civ 1282 in which he dismissed the LA’s application for a care order on the basis that the parents’ deficiencies had ‘subtle and ambiguous consequences’ for the children but could not amount to significant harm,

Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.  Children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it.  It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability.  These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting… It would be unwise to a degree to attempt an all embracing definition of significant harm.  One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.

In Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, Lady Justice Hale defined the fundamental justification for interference in family life,

[34] Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end.  Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.

If the parents dispute a matter of concern, then it is in issue and the onus is on the LA to adduce proper evidence and prove their allegation.  It is not enough merely for the LA to allege the parents do not accept the allegation made or give it sufficient standing.  If the Court is to find that the threshold has been crossed it must evaluate the evidence presented and make a finding-of-fact.  In Re P (A Child) [2013] EWCA Civ 963, Lady Justice Black emphasised,

[115] …Allegations which are denied are not facts.  If the local authority need to rely upon them as part of their case, they will have to produce the evidence to establish them.

The LA must demonstrate that the harm or likelihood of harm is the result of the care provided by the parents being less than it would be reasonable to expect from them.  The harm must be attributable to a lack, or likely lack, of reasonable parental care.  The Court should identify the respects in which parental care is falling short, or is likely to fall short, of what it would be reasonable to expect.

The LA’s evidence must include all the realistically possible options for the child with an analysis of the options for and against each option, and an assessment of the benefits and risk of harm involved in each option.  There must be evidence for the lack of any viable alternative option for the child other than adoption.  Too often this is missing; in a case which has received much attention, Re B-S (Children) [2013] EWCA Civ 1146, the President, Lord Justice Munby, declared,

[30] We have real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments.  This is nothing new.  But it is time to call a halt.

[40] This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

The LA must next prove the link between the facts (if proved) and its claim that the threshold has been crossed.  It must explain why the facts justify a conclusion that the child is suffering, or is at risk of suffering, significant harm.  Both local authorities and the lower courts have based past decisions on flimsy evidence and a lack of proper analysis.  In Re V (Children) [2013] EWCA Civ 913, Lady Justice Black said,

[88] …Very careful consideration has to be given to whether these children’s welfare required that the parents’ consent to adoption be dispensed with and whether adoption is necessary.  I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering.

Before they make an application for care or adoption the LA must show they have fully considered all other possible options for the child.  In Re S, K v The London Borough of Brent [2013] EWCA Civ 926, Ryder LJ lamented the frequent absence of justification,

[24] …The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available.  Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available.

In Re G (A Child) [2013] EWCA Civ 965, McFarlane LJ expressed the crux of the issue,

[49] In most child care cases a choice will fall to be made between two or more options.  The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

[50] The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.

[54] …What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.

The final requirement is that no other option than the one proposed by the LA will do; the European Court had warned in YC v United Kingdom [2012] 55 EHRR 967,

[134] Family ties may only be severed in very exceptional circumstances and… everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family.  It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.

In the influential Re B (A child) [2013] UKSC 33 in June 2013, Lady Justice Hale introduced the now common phrase ‘where nothing else will do’,

[198] …the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.  In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions.

In Re P (A Child) [2013] EWCA Civ 963 Lady Justice Black cited Hale,

[102] …Re B is a forceful reminder that such orders are “very extreme”, only made when “necessary” for the protection of the child’s interests, which means “when nothing else will do”, “when all else fails”.  The court “must never lose sight of the fact that [the child’s] interests include being brought up by her natural family, ideally her parents, or at least one of them” and adoption “should only be contemplated as a last resort”.

Finally, in September the President, Munby LJ, gave his thoughts in Re B-S (Children) [2013] EWCA Civ 1146,

[22] The language used in Re B is striking.  Different words and phrases are used, but the message is clear.  Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”.

Social workers reacted angrily and Munby was criticised for his remarks which seemed to be at odds with the Government’s pro-adoption agenda.  He responded in April 2014 that it is Parliament and not the Government which makes the law and judges who must interpret it.  In Re R (A Child) [2014] EWCA Civ 1625, he clarified that he had not changed the law and that adoption still sometimes remained the only sensible option.  The evangelical adoption ‘tzar’, Martin Narey, accused LAs of misinterpreting the judgments and issued an alarmist ‘myth-busting’ guide written by Janet Bazely QC which ignored the fact that some children who would formerly have been adopted by strangers were now benefiting from Kinship Care.  It is true that the law did not change, but the understanding of it did, and practice improved accordingly.

In Re A (A Child) [2015] EWFC 11, Munby had to repeat yet again the logical process a court must follow:

  1. Establish the facts upon evidence and not suspicion or speculation; if the parents refute an allegation it is not a question of them not admitting or acknowledging it: the matter is in issue and the LA must prove it;
  2. The LA must demonstrate a link between the facts and the conclusion that the child has suffered or is likely to suffer harm;
  3. Finally, the LA must resist natural temptation; Munby quoted Judge Jack in North East Lincolnshire Council v G & L [2014] EWCC B77,

[16] …the courts are not in the business of social engineering.  The courts are not in the business of providing children with perfect homes.

In Re J (A Child) [2015] EWCA Civ 222 in the Court of Appeal, McFarlane LJ reiterated the single criterion for removing a child,

[56(vi)] It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other.  The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs” simply because those facts are established.  It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm.