Abstract
The vulvar nick, a laceration just long enough to draw a small amount of blood, has been used as a primary ritual in children and has been proposed as a substitute for more extensive ritual female genital alteration. Metzitzah b’peh, or direct oral suction of blood from the penile head, is employed in some Jewish ritual circumcisions, and rarely transmits grave herpes infections. We assume for purposes of argument that neither is ethically justified. Even so, a punitive criminal approach directed at restricting these procedures is not warranted. From a utilitarian standpoint, punishment is likely to cause more harm than good. From a retributive standpoint, punishment is disproportionate to the nature of the offense. In contrast, harm reduction approaches, whether directed toward reducing the frequency of these procedures, to ameliorating their impact, or to substituting a less for a more harmful procedure, are ethically justified.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Metzitzah b’peh means “suction by mouth” in Hebrew.
- 2.
We use the term “female genital alteration” rather than other terms such as “mutilation,” cutting,” and “female circumcision” that are used to name these ritual acts because “alteration” is more neutral and accurate than any of the alternatives. For a more in-depth discussion of this nomenclature, please see Arora and Jacobs (2016).
- 3.
It is not useful to try to categorize FGA as being either religious or cultural. Whether or not Islamic or other texts require it, popular belief is not necessarily congruent with canonical interpretation. Any practice with a spiritual basis has religious meaning to its practitioners (Orsi 2003). Also, distinctions among spheres of human activity such as religion, sexuality, culture, and politics that many scholars in the West take for granted (Walzer 1983) are not universally applicable, as the main concern of many religions is praxis, which can pervasively affect most life activities. It is also not useful to distinguish between religious and cultural norms and “mere” social pressures, as the former are reinforced by the latter. Consider, for example, the likely effect on your social status if you served at a dinner party a dog barbecued on a spit. Consider, also pressures on new Jewish, Hindu, or Mahayana Buddhist parents to assign names to their children based on traditional constraints.
- 4.
The study cited is the most extensive, and best designed, to date. However, and contradictory to the title, it is not a prospective study, as patients were not enrolled until they went into labor. Consequently, the study did not optimally control for differences between women who had undergone FGA and those who had not, though attempts were made to compensate for this problem through the statistical design.
- 5.
The entire classificatory scheme is as follows:
Category 1: Procedures that have no lasting effect on vulvar morphology or function.
Category 2: Procedures that create morphologic changes, but not functional changes.
Category 3: Procedures that are likely to impair the ability of the recipient to engage in or enjoy sexual relations. If a procedure also is likely to impair reproduction function it should be placed in Category 4.
Category 4: Procedures likely to impair reproductive function, either by reducing the chances of conception or by making vaginal delivery more dangerous.
Category 5: Procedures likely to cause major physiological dysfunction outside the vulva, including death, even if performed correctly.
- 6.
Plural form of mohel.
- 7.
Strict scrutiny is a constitutional test applied to government actions that impinges on certain liberties or rights the Supreme Court considers fundamental. It requires that the restrictive measure the narrowest possible remedy available to address a compelling government interest. This test does not consider practicality or cost of alternative measures, and is a hard hurdle for the government to overcome.
- 8.
There is an informal agreement between the city and communities practicing MBP that mohelim who transmit HSV through circumcision will be permanently banned from practicing. It is not known whether either the city government or the communities that practice MPB have taken any steps to implement this understanding or to monitor compliance.
- 9.
An example is the Nebraska Revised Statutes, §28–710: “(2) For purposes of the Child Protection and Family Safety Act: … (b) Child abuse or neglect means knowingly, intentionally, or negligently causing or permitting a minor child to be: (i) Placed in a situation that endangers his or her life or physical or mental health.” Most American states have language applicable to MPB; the Nebraska statute was chosen for quotation because of its breadth and the clarity of its language.
- 10.
A third possible utilitarian goal is rehabilitation, or providing the offender with the attitudes and tools to lead a lawful life.
- 11.
From 1992 to 2012 annual incidence of violent crime fell from 1,922,274 to 1,214,464 (36.8%) (Bureau of Justice Statistics, available at http://www.bjs.gov/ucrdata/Search/Crime/State/RunCrimeTrendsInOneVar.cfm).
- 12.
Damages are explicitly restorative, however. They do not constitute pure punishment in the sense that imprisonment, loss of parental care, or even fines punish people without restoring losses other than some dignitary losses to victims.
- 13.
The Supreme Court voided this law as unconstitutional (Texas v. Johnson, 491 U.S. 397 (1989)).
- 14.
For example, the Texas legislature enacted a statute requiring that abortion clinics conform to requirements of ambulatory surgical centers, and that providers have staff privileges in nearby hospitals. This statute has been overturned, however, by the United States Supreme Court (Whole Women’s Health v. Hellerstedt, No. 15–274; ___ U.S.___ (2016)) as unconstitutionally creating an undue burden on women’s reproductive choices. However, the Court previously upheld a statute requiring a 24 hour waiting period for elective termination of pregnancy (Planned Parenthood v. Casey, 505 U.S. 833 (1992)).
- 15.
For example, the New York Penal Code requires proof that the act had the purpose of “sexual gratification of either party” (§130.00). Each element of a crime, including intent to produce sexual gratification, must be proven beyond reasonable doubt.
- 16.
The New York Penal Code defines child endangerment as conduct performed knowingly and “likely to be injurious to the physical, mental or moral welfare of a child” (§ 160.10 (1). It is a Class A misdemeanor, punishable by up to 1 year imprisonment.
- 17.
A determination of fact ordinarily is not subject to reversal on appeal in a common law court. Appellate courts can only reverse errors in application of law. By failing to find that FGA had been performed, the judge insulated his judgment from hostile appellate review.
- 18.
Its present and past adherents include two former CIA directors (Stansfield Turner and William Webster), high Nixon aides John Ehrlichman and H.R. Haldeman, and former Treasury Secretary and Goldman Sachs CEO Henry Paulson.
References
American Academy of Pediatrics (2010a) Ritual genital cutting of female minors. Pediatrics 125(5):1088–1093
American Academy of Pediatrics (2010b) AAP publications reaffirmed and retired. Pediatrics 126(1):177
Arora KS, Jacobs AJ (2016) Female genital alteration: a compromise solution. J Med Ethics 42(3):148–154
Bengoetxea J (2013) Ultima ratio and the judicial application of law. Oñati Socio-Legal Series 3(1):107–124
Blocker JS Jr (2006) Did prohibition really work? Alcohol prohibition as a public health innovation. Am J Public Health 96(2):233–243
Borland J (1994) #184 Sentence Enhancement. Repeat Offenders. California Voter Foundation. http://www.calvoter.org/archive/94general/props/184.html. Accessed 12 Apr 2015
Broyde MJ (2002) Informing on others for violating American law: a Jewish law view. J Halacha Contemp Soc 43:5
Bullen C, Howe C, Laugesen M, McRobbie H, Parag V, Williman J, Walker N (2013) Electronic cigarettes for smoking cessation: a randomised controlled trial. Lancet 382(9905):1629–1637
Bushman, RL (1960, Autumn) Mormon Persecution in Missouri, 1833. Brigham Young University Studies, III, 11–20
Cahn Z, Siegel M (2011) Electronic cigarettes as a harm reduction strategy for tobacco control: a step forward or a repeat of past mistakes. J Public Health Policy 32(1):16–31
Centers for Disease Control and Prevention (CDC) (2012) Neonatal herpes simplex virus infection following Jewish ritual circumcisions that included direct orogenital suction—New York City, 2000–2011. MMWR Morb Mortal Wkly Rep 61(22):405
Centers for Disease Control and Prevention (2015). Trends in current cigarette smoking among high school students and adults, United States, 1965–2011. http://www.cdc.gov/tobacco/data_statistics/tables/trends/cig_smoking/. Accessed 12 Apr 2015
Cherpes TL, Matthews DB, Maryak SA (2012) Neonatal herpes simplex virus infection. Clin Obstet Gynecol 55(4):938
Coleman DL (1998) The Seattle compromise: multicultural sensitivity and Americanization. Duke Law J 47(4):717–783
Corbett, S (20 Jan 2008) A cutting tradition. New York Times Magazine. http://www.nytimes.com/2008/01/20/magazine/20circumcision-t.html. Accessed 2 Dec 2015
Drucker E, Lurie P, Wodak A, Alcabes P (1998) Measuring harm reduction: the effects of needle and syringe exchange programs and methadone maintenance on the ecology of HIV. AIDS 12(Suppl A):S217–S230
EIGE (2013) European Institute for Gender Equality Report: female genital mutilation in the European Union and Croatia. http://eige.europa.eu/sites/default/files/documents/eige-report-fgm-in-the-eu-and-croatia.pdf. Accessed 14 Feb 2016
Eke N, Nkanginieme KEO (2006) Female genital mutilation and obstetric outcome. Lancet 367(9525):1799–1800
Fadiman A (1997) The spirit catches you and you fall down: a Hmong child, her American Doctors, and the collision of two cultures. Farrar, Straus & Giroux, New York
Forslind E (15 Jan 2015) 38 000 Kvinnor och Flickor i Sverige Kan Vara Könsstympade. Vårdfokustidning för Vårdförbundet (in Swedish). https://www.vardforbundet.se/Vardfokus/Webbnyheter/2015/Januari/38-000-kvinnor-och-flickor-i-Sverige-kan-vara-omskurna/. Accessed 20 Feb 2015
Galeotti AE (2007) Relativism, universalism, and applied ethics: the case of female circumcision. Constellations 14(1):91–111
Gallup Organization (2015) Alcohol and drinking. http://www.gallup.com/poll/1582/alcohol-drinking.aspx. Accessed 13 Apr 2015
Gillespie D, Melching M (2010) The transformative power of democracy and human rights in nonformal education: the case of Tostan. Adult Educ Q 60(5):477–498
Goldberg D (9 Sept 2015) Board of Health Repeals Metzitzah B’peh Consent Form. Politico New York http://www.capitalnewyork.com/article/city-hall/2015/09/8576326/board-health-repeals-metzitzah-bpeh-consent-form. Accessed 7 Oct 2015
Gruenbaum E (2005) Socio-cultural dynamics of female genital cutting: research findings, gaps, and directions. Cult Health Sex 7(5):429–441
Habermas J (1988) Between facts and norms: contributions to a discourse theory of law and democracy (trans. W. Rehg). MIT Press, Cambridge
Harris A, Evans H, Beckett K (2011) Courtesy stigma and monetary sanctions toward a socio-cultural theory of punishment. Am Sociol Rev 76(2):234–264
Huo YJ, Smith HJ, Tyler TR, Allan Lind E (1996) Superordinate identification, subgroup identification, and justice concerns: is separatism the problem; is assimilation the answer? Psychol Sci 7(1):40–45
Jackson J, Bradford B, Hough M, Myhill A, Quinton P, Tyler TR (2012) Why do people comply with the law? Legitimacy and the influence of legal institutions. Br J Criminol 52(6):1051–1071
Jareborg N (2004) Criminalization as last resort (Ultima Ratio). Ohio State J Crim Law 2(2):521–534
Kerlee JC (2004) Too much religious freedom? Infants infected with herpes after Jewish mohel applies oral suction to circumcised penises. J Law Health 19(2):297–411
KNMG (Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst; Royal Dutch Medical Association) (2010) Nontherapeutic circumcision of male minors. http://knmg.artsennet.nl/publicatie/77942/nontherapeutic-circumcisionof-male-minors-2010.htm
Korobkin ND (28 Dec 2006). Metzitzah B’peh controversy: rabbinic polemics and applying the lessons of history. Jewish Action. https://www.ou.org/jewish_action/12/2006/metzitzah_bpeh_rabbinic_polemics/. Accessed 14 Feb 2016
Latham S (2016) The campaign against female genital cutting: empowering women or reinforcing global inequity? Ethics Soc Welf 10(1):1–14
Levin HY, Jacobs Allan J, Arora Kavita S (2016) To accommodate or not to accommodate: (When) should the state regulate religion to protect the rights of children and third parties? Washington & Lee Law Review 73:915–1016
Leye E, Powell RA, Nienhuis G, Claeys P, Temmerman M (2006) Health care in Europe for women with genital mutilation. Health Care Women Int 27(4):362–378
Leye E, Deblonde J, García-Añón J, Johnsdotter S, Kwateng-Kluvitse A, Weil-Curiel L, Temmerman M (2007) An analysis of the implementation of laws with regard to female genital mutilation in Europe. Crime Law Soc Chang 47(1):1–31
Marlatt GA, Tapert SF (1993) Harm reduction: reducing the risks of addictive behaviors. In: Baer JS, Marlatt GA, McMahon R (eds) Addictive behaviors across the lifespan. Sage, Newbury Park, pp 243–273
Marlatt GA (1996) Harm reduction: come as you are. Addict Behav 21(6):779–788
Marlatt GA, Witkiewitz K (2002) Harm reduction approaches to alcohol use: health promotion, prevention, and treatment. Addict Behav 27(6):867–886
Naser RL, Visher CA (2006) Family members’ experiences with incarceration and reentry. West Criminol Rev 7(2):20–31
Obermeyer CM (1999) Female genital surgeries: the known, the unknown, and the unknowable. Med Anthropol Q 13(1):79–106
Obiora LA (1996) Bridges and barricades: rethinking polemics and intransigence in the campaign against female circumcision. Case West Res Law Rev 47(3):275–378
Offit PA (2015) Bad faith: when religious belief undermines modern medicine. Basic Books, New York
One Hundred Professors of Obstetrics and Gynecology (2013) A statement on abortion by 100 professors of obstetrics: 100 years later. Am J Obstet Gynecol 209(3):193–199
Orsi RA (2003) Is the study of lived religion irrelevant to the world we live in? Special presidential plenary address, Society for the Scientific Study of Religion, Salt Lake City, 2 Nov 2002. J Sci Study Relig 42(2):169–174
Otterman S (12 Sept 2012) Denouncing city’s move to regulate circumcision. New York Times. http://www.nytimes.com/2012/09/13/nyregion/regulation-of-circumcision-method-divides-some-jews-in-new-york.html. Accessed 14 Feb 2016
Petersilia J (2001) Prisoner reentry: public safety and reintegration challenges. Prison J 81(3):360–375
Pittet D, Mourouga P, Perneger TV (1999) Compliance with handwashing in a teaching hospital. Ann Intern Med 130(2):126–130
Rawls J (1955) Two concepts of rules. Philos Rev 64(1):3–32
Resnicoff SH (2012) Jewish law and the tragedy of sexual abuse of children: the dilemma within the orthodox Jewish community. Rutgers J Law Relig 13(2):281–362
Ruderman R (2013) Female circumcision: the ethics of harm reduction policies. Michigan J Public Aff 10(1):95–107
Schrad ML (2007) Constitutional blemishes: American alcohol prohibition and repeal as policy punctuation. Policy Stud J 35(3):437–463
Shell-Duncan B (2001) The medicalization of female “circumcision”: harm reduction or promotion of a dangerous practice? Soc Sci Med 52(7):1013–1028
Shell-Duncan B (2008) From health to human rights: female genital cutting and the politics of intervention. Am Anthropol 110(2):225–236
Shell-Duncan B, Wander K, Hernlund Y, Moreau A (2013) Legislating change? Responses to criminalizing female genital cutting in Senegal. Law Soc Rev 47(4):803–835
Staub E (1999) The roots of evil: social conditions, culture, personality, and basic human needs. Personal Soc Psychol Rev 3(3):179–192
Steinberg MB, Delnevo CD (2013) Increasing the “smoking age”: the right thing to do. Ann Intern Med 159(8):558–559
Tadros V (2011) The ends of harm. Oxford University Press, Oxford
Topping A (5 Feb 2015) FGM affects three times more people in the US than previously thought. The Guardian. http://www.theguardian.com/society/2015/feb/05/fgm-numbers-affected-us-women. Accessed 14 Feb 2016
Tuori KH (2013) Ultima ratio as a constitutional principle. Oñati Socio-Legal Series 3(1):6–20
Tyler TR (2006) Psychological perspectives on legitimacy and legitimation. Annu Rev Psychol 57:375–400
Walzer M (1983) Spheres of justice: a defense of pluralism and equality. Basic Books, New York
Weiss KE, Falvo CE, Buimovici-Klein E, Magill JW, Cooper LZ (1979) Evaluation of an employee health service as a setting for a rubella screening and immunization program. Am J Public Health 69(3):281–283
Wicker S, Rabenau HF, Doerr HW, Allwinn R (2009) Influenza vaccination compliance among health care workers in a German university hospital. Infection 37(3):197–202
World Health Organization (2014) Female genital mutilation and other harmful practices: prevalence of FGM. http://www.who.int/reproductivehealth/topics/fgm/prevalence/en/. Accessed 25 Oct 2014
Wringe B (2012) Collective agents and communicative theories of punishment. J Soc Philos 43(4):436–456
Zaibert L (2013) The instruments of abolition, or why retributivism is the only real justification of punishment. Law Philos 32(1):33–58
Zhu S-H, Lee M, Zhuang Y-L, Gamst A, Wolfson T (2012) Interventions to increase smoking cessation at the population level: how much progress has been made in the last two decades? Tob Control 21(2):110–118
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Acknowledgment
Acknowledgment
Dr. Arora is funded by the Clinical and Translational Science Collaborative of Cleveland, KL2TR000440 from the National Center for Advancing Translational Sciences (NCATS ) component of the National Institutes of Health and NIH roadmap for Medical Research. This manuscript is solely the responsibility of the authors and do not necessarily represent the official views of the NIH.
The authors have no conflicts of interest to declare.
Rights and permissions
Copyright information
© 2017 Springer International Publishing AG
About this paper
Cite this paper
Jacobs, A.J., Arora, K.S. (2017). Vulvar Nick and Metzitzah b’peh: Punishment or Harm Reduction?. In: Campo-Engelstein, L., Burcher, P. (eds) Reproductive Ethics. Springer, Cham. https://doi.org/10.1007/978-3-319-52630-0_11
Download citation
DOI: https://doi.org/10.1007/978-3-319-52630-0_11
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-52629-4
Online ISBN: 978-3-319-52630-0
eBook Packages: MedicineMedicine (R0)