Female Genital [fill in the blank]

The debate over Female Genital Mutilation/Cutting (an earlier round of which was blogged about here by Sarah Waldeck), continues at Teirneylab. I won’t recount all the arguments and evidence on both sides. Instead, I want to ask a legal question: How should evidence of FGM/C weigh in a custody hearing? Should evidence that a immigrant mother has had her daughter ritually cut support an inference of poor parenting? What if the mother hasn’t yet cut the child, but plans to in the future (perhaps by returning to her country of origin)? Is the inference obvious, or does it depend on context? Were an adverse party to raise the issue against your client in a custody case, what would you do?

As you think about your answer, also ponder the role that cultural cognition might play in resolving this kind of legal question. Cultural cognition refers to the tendency of individuals to conform their beliefs about disputed matters of fact (e.g., whether global warming is a serious threat; whether the death penalty deters murder; whether gun control makes society more safe or less) to values that define their cultural identities. I, for example, find myself interrogating studies showing that women who undergo FGM/C are no less likely to have fulfilling sexual lives and pleasurable sexual experiences far more intensely and critically than I do those that suggest the rituals produce long-lasting trauma. I am not in a position to evaluate the primary evidence myself and, when I reflect on my own reactions, I’m not a neutral evaluator of the secondary evidence. Can we expect a judge or social worker to be immune to the same cognitive biases?

Here’s another question to close the loop: Apparently I think that FGM/C is harmful, at least in part, because I think it is base — but I also think it is base because I think it is harmful! And if I (admittedly) can’t trust my intuitive assessment that it is really harmful, can I trust my normative evaluation of the practice as wrong?

The issue is undoubtedly complex, and a thoughtful evaluation would view the FMG/C not as a single practice, but as a collection of very different practices, with normative and welfare evaluations depending on medical conditions, the extent of cutting/mutilation and the tissue cut/mutilated, the meaning attached to the act by the person being cut/mutilated, the social meaning of the act, consent, and so on. But this only makes the problem of assessing the practice in legal settings more complicated. And, because we tend to believe that our moral positions are based on objective assessments of harm, once we see that those harm assessments are based on our moral positions, we’re in a bit of a pickle. So what to do?

The answer, I think (as do other folks working on these issues) is that we need to create conditions in which people can more dispassionately assess empirical data (not just about FGM/C, but about all manner of contentious matters of policy grounded in assertions of fact). The way to do this, it turns out, is not to throw empirical studies at people. If you follow the debate over at Tierneylab, you’ll see that people tend to ignore those studies or use the ones that support their position — or just make more assertions about harm and morality. Very few are actually interested in or troubled by the fact that the studies point in several directions. Empirical studies have a place, but they are best evaluated in a context where people don’t feel like their cultural commitments, values, or identity are on the line. But how to create such conditions?

One strategy for overcoming this sort of problem is to have people who share the values of the skeptic vouch for the information being presented. For example, the fact that at least some of the women who experience some forms of FGM/C actually value it and find that it doesn’t effect their sexual lives pushes me to think about the issue in a more balanced manner. I still think there might be a use for a bright line rule about FGM/C in the US, but I’m also open to the idea that, when done safely and when not physically traumatizing/destructive (at least when it is no more physically injurious than the typical male circumcision) and when done in a social context that lends it positive meaning, it may not be as abominable as I was previously inclined to think.

But is vouching of that sort possible in an adversarial legal setting?

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6 Responses

  1. A.J. Sutter says:

    You seem not to give enough weight to the question of the subject’s consent to “FGM/C”. How widespread is it for women to be happy about this? How does it compare to say, rates of unhappiness about male circumcision by the subjects thereof? And is there a justice issue implied by the difference between men deciding to circumcize men and men deciding to “circumcize” women?

    I leave aside for the moment (a) the point, at least as reported in the popular press, that male circumcision has some health benefits for both women and men in lower STD rates, and (b) the question of whether FGM/C imparts any comparable staistically significant *benefit*, as distinguished from absence of statistically significant harm (per Shweder comment in Tierneylab), because I think you are overemphasizing the physical health aspects of the issue.

    Perhaps this kind of surgery could still be made available to those competent to consent to it. But doesn’t the fact that so many women have formed organizations against FGM/C suggest that its imposition on the incompetent is inappropriate?

    The larger question is what’s special about this issue as a case of “cultural” cognitive bias? How can we *ever* expect to control for all cognitive biases? Some, like the quantitative ones described by Kahneman & Tversy or Gigerenzer and his colleagues, might be avoided by becoming aware of them. But even the desire to overcome these derives from a cultural construct of “objectivity”. “Cultural cognitive biases” are a kind of endless loop — the desire to overcome them itself reflects a cultural judgment.

    And aren’t law and notions of justice part of culture, rather than outside it? If so, why not just accept that. That’s not to say that all biases are OK, but rather that every society needs to draw a legal line in the sand somewhere about which biases it will “interrogate” and which it will accept so that people can get on with living. (One of my “cultural cognitive biases” is I believe that members of the society should be allowed to continue to contest where that line is drawn, but in the meantime it’s reasonable for judges and legislators to draw it somewhere instead of endlessly wringing their hands or dithering.) Indeed, the need to get on with it instead of overthinking is believed by many to be why there are cognitive biases at all.

  2. Don says:

    A.J., your point about hand-wringing is an good one, and in re-reading my blog, it is a bit formless. Your point reminds of the stance taken by both Fish and Rorty: being liberal, they would say, doesn’t mean you’re excused from having values or making up your mind. We all have to live our lives, after all.

    So don’t wander into a theoretical miasma, just give me a sense of how *you* would resolve the issue: bright line rule or fact-specific inquiry? Either way, someone has to make an assessment, and I’d like for them to get it right.

    If, on the other hand, your point is that there is no right or wrong on the question of harm, just social norms, then I disagree. I think there is a right answer. I used to think I knew what it was, now I’m not so sure. But that doesn’t mean that I think the question is pointless or unanswerable.

  3. Tara says:

    Personally, I find both routine male and female circumcision violative of the child’s rights. I do not understand why, outside the context of medical necessity, it would be ruled that one person (even a parent) has the right to force another to undergo such a procedure that cannot be reversed. I have to admit that I also find it quite odd that proponents of routine male circumcision would have an absolute fit over female circumcision.

    On the other hand, I don’t know how it’s possible to separate the cultural issues from something like this. In some countries, a woman who is not circumcised would essentially grow up banished, begging the question as to whether the violation of her rights is a lesser evil than the life she might live without it?

  4. A.J. Sutter says:

    Don, thanks for your reply. You ask how I would resolve the issue; actually, in your original post you raise a couple of issues. I’m a bit out of my depth in both, since I’m not a litigator, much less a family law practitioner, and I’m also not an expert in this field. But since you ask, I will take a shot.

    The easier question is the one about an adverse party raising the issue in a custody case: assuming that I’d agreed to take the mother on as a client to begin with, the answer is I would make the best case I know how for my client’s position.

    As for the choice between bright-line rule and fact-based inquiry on the poor parenting issue, I probably would favor a rebuttable presumption of poor parenting. I don’t feel that such a proceudre is appropriate on a minor if the child will live in the US. If, as Tara suggests, the child would be banished within her own culture, I think that would be relevant — though not necessarily persuasive — only if it were clear that she would be soon returning to her parents’ country of origin. The age of consent for marriage and the age of majority for making decisions about elective medical procedures might be a few years out of synch in some US states, but if I understand this issue correctly, it seems that the child could, on reaching majority, decide to have the procedure if she felt it important for her marriage chances. If there is some exceptional circumstance that might justify the procedure in a partciular case, I would be prepared to hear evidence about it, but the presumptive bar should be pretty high, in my opinion.

    As for the difference between male circumcision and female circumcision, I am inclined to consider, among other possible factors, (i) the apparent medical benefits (vel non) to both men and women of men being circumcised, (ii) the degree of opposition to the process among adult males, (iii) the asymmetry, maybe unfairly perceived by me, that FGM/C is more suggestive of a chattel-like and dominating attitude toward women than male circumcision suggests about men. Personally, I underwent the male version at a tender age in a desert-originated, albeit schnapps-filled, ritual more than a half-century ago in the Old Country (Long Island), and I have no complaints on scores (i)-(iii); nor am I aware of this being as militizing an issue among others who have undergone it (as distinguished from some parents) as FGM/C is among women. I do think parents should have the right not to get their child circumcised, BTW. So while my default rules may seem inconsistent to some, I don’t worry about that too much in light of the totality of the circumstances.

  5. Donald Braman says:

    A rebuttable presumption is a nice compromise!

    Your third point (chattel connotations) is especially well taken and, I think, is largely what has caused me to overestimate the amount of physical and psychological harm done in typical cases of FGM/C (I had previously thought of it as typically quite damaging, physically and psychologically). Accounts describing the practice as something that is generally motivated by a desire that women have to empower themselves and each other casts a very different hue on the ritual than more typical accounts describing it generally as something men impose on women.

    I suspect that the messy truth is that it in many cases *both* motivations and experiences are intermingled. I take it that one of the goals of the anti-FGM/C movement is to disambiguate the social meaning of the practice, and recast it in unequivocally negative terms. And if that’s the case, then it will be very hard to halt the practice because there is an odd coalition of support for the ritual among differently-minded individuals. Indeed, we’re likely to see (as we already have) resistance to the anti-FGM/C movement both by third-wave feminist *and* patriarchal supporters of the practice. So maybe a little hand-wringing is in order — it would be nice to have legal tools and strategies that aren’t so blunt that they hit our feminist friends when we’re aiming for patriarchal oppressors.

  6. Jim Bradley says:

    All this, while right here in the US, we engage in the primitive practice of male genital mutilation………………

    What about all the men and boys who have had 14 feet of nerve endings removed from the most sensitive parts of their bodies?