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?