We must set limits, for the sake of little girls

There’s no place for ethnic arrogance, but genital mutilation is different, writes Karen Kissane.

NINETEENTH-CENTURY Westerners, confident of their cultural superiority, had no qualms about trying to stamp out ugly foreign customs. Britain’s empire builders banned the Indian tradition of suttee, in which Hindu widows were burnt on their husbands’ funeral pyres; Europeans led the fight against foot-binding in China.

Colonialism had many evils, but it shone a few lights in dark places, stopping some peoples from eating their enemies and others from leaving their girl babies out to die. But ethnic arrogance has no place in multicultural worlds like today’s Australia. How, then, do we deal with minority group traditions that the majority abhor, such as genital mutilation of little girls? How far should tolerance for diversity and respect for the values of others stretch? It has been known for some time that people in some ethnic communities, particularly those from Africa and the Middle East, are circumcising their daughters. Some girls are done on kitchen tables here, some are sent back to the old country and others, police alleged several years ago, are done by Australian doctors. “Female circumcision” ranges from removal of the hood of the clitoris or the clitoris itself to infibulation, in which the clitoris, the labia majora and the labia minora are cut out and the remaining flesh sewn together, leaving a small opening for urine and menstrual flow.

It effectively castrates women, leaving them with sexual pain instead of pleasure and ensuring their chastity as maidens and their fidelity as wives. It is a 5000-year-old tradition that parents still inflict on their daughters in order to make them marriageable and acceptable to their own communities. While no hard figures are available, federal health and legal authorities have heard anecdotal evidence of it here and say it is reasonable to assume that migrants such as African refugees are bringing the custom with them.

Australia has been slow to deal officially with the problem. Chief Inspector Vicki Fraser, the head of Victoria’s community policing squad, warned six years ago that the issue was being ignored because of a reluctance to create tensions in a multicultural society. Federal officials contacted for this story sighed that they knew the issue had been a time bomb, but that there had been concern about how best to deal with it without creating a racist backlash. How can you publicise an issue like this without arousing anger and disgust in other Australians? How do you convince women who have been circumcised that their daughters should not be deformed this way without making the mothers feel like freaks? Mutilation, after all, is in the eye of the beholder’s culture. Our criminal law does not recognise any right to consent to bodily harm, or any right by parents to consent to bodily harm to their children.

But we do have the right to consent to medical procedures that are painful and non-therapeutic, such as cosmetic surgery. The desire to have a nose broken and reshaped, a face cut open and tightened, or tissue removed from a large breast also springs from a longing to be accepted by the community. It may be sad but it is not, in our culture, considered bizarre.

But genital mutilation is different. It deprives women of a normal physical function, leaves them with serious long-term health problems and is done when they are children and cannot give informed consent.

Australian political leaders have long condemned it and threatened legal consequences for anyone involved, but its legal status is still unclear. The Australian Law Reform Commission has argued against special legislation criminalising it, saying that offenders could be charged under existing criminal law, and that, in any case, education would be a better tool for change than prosecution. The Australian Family Law Council, which advises the Attorney-General, recommends much stronger action.

The council’s discussion paper on the issue, due out next month, recommends federal legislation outlawing genital mutilation. It also proposes making it a criminal offence to send a child out of the country to have it done elsewhere. If the proposal is adopted Australia, like Europe, will jail offending parents. The council has rejected the argument that genital mutilation is a religious custom.

The chairman, John Faulks, says religious leaders deny that it is a Muslim practice or required by the Koran. Mr Faulks says it is important that laws be passed to clarify doubts about whether such cases can be prosecuted and in order for Australia to comply with its obligations under international conventions on the rights of the child. This, then, would be the limit of multicultural tolerance.

There have always been limits. We do not allow Muslims to cut off the hand of a thief or stone an adulteress. People from polygamous cultures must respect our bigamy laws and men from more patriarchal societies must learn that in this country, children of a broken marriage do not automatically belong to the father. Jehovah’s Witnesses are not permitted to refuse a sick child a necessary blood transfusion. The right of a child to protection outweighs the right of the parent to follow tradition.

Genital mutilation should be criminalised if migrants are to get a clear message about how serious a practice it is. Opponents of criminalisation argue that it sends the problem underground, causing more hardship for the girls. But that argument, like the argument against mandatory reporting of other forms of child abuse, makes no sense; the problem is already beyond the law. Even in the countries from which these migrants come, human rights activists oppose the practice.

But change must also come from within. Education programs should be set up to ask parents to examine their beliefs and to ask mothers to remember their own shock and pain and grief. The American writer Alice Walker, whose last novel was about a woman who had been mutilated, has been asked why women have helped weave such social and religious significance around what is, in essence, a horror. She said that people carrying an unendurable hurt create an alternative reality to make the pain more bearable, and that this is what must change if we are to stop attacks on the innocent face of the vulva.

First published in The Age.

When children kill

WHEN is a child not a child? Take the 13-year-old boy who stood on a bridge over the Eastern Freeway dropping rocks on to cars. The last rock, all 1.8 kilograms of it, struck the chest of a motorist with the force of sledgehammer. It ruptured his heart and killed him.
In America, that kind of offence loses a child his special status in law. “Adult crime, adult time,” is the catch-cry, and more than 40 states now automatically transfer juveniles charged with certain violent offences to the adult system, where they face life sentences.

In Victoria, children aged between 10 and 14 are automatically transferred to the Supreme Court when charged with murder or manslaughter. Juries make what they can of exchanges such as this one between police and the young rock-thrower, up for manslaughter:

“Whereabouts did you get the rocks from?”

“That little place where we were playing tiggy on our bikes.”

Adult crime, childish pastime. Should the boy be held responsible for the death he caused? What is the boundary of the age of innocence – or is the very concept an adult fantasy?

The question is becoming more urgent with cases such as that of Corey Davis, the six-year-old with an intellectual disability who drowned after a 10-year-old boy shoved him into a creek. The case triggered calls for Australian children to be held more culpable for their crimes.

The 10-year-old became the second-youngest child in Australia to be charged with a killing. He is even younger if judged by his mental age, which was said to be around seven. New South Wales police decided to charge the boy with manslaughter after he told them: “Yeah. I pushed him. So what?”

Last May, the NSW senior children’s magistrate, Stephen Scarlett, ruled that the case should not go to the Supreme Court because a conviction was unlikely, given the evidence provided by child witnesses. A jury would probably see Corey’s death as “an act of bullying that went horribly wrong”. The NSW Department of Public Prosecutions overruled Scarlett’s recommendation and decided the boy should stand trial.

Although he believed the boy should not face an adult hearing, Scarlett had questioned whether today’s children are too protected from culpability.

In NSW and Victoria, the law presumes that children older than 10 but younger than 14 are incapable of forming an intention to commit a crime. This is known as the doli incapax presumption. It can be overturned, or rebutted, in an individual case only if the prosecution manages to prove the child did understand the significance of his or her actions. The presumption developed in 18th-century English law to prevent the hanging or transportation of children.

Scarlett called for the doli incapax cut-off to be lowered to the 12th birthday. “Can it really be argued that a child of 13 does not understand that it is wrong to steal from a shop, or to attack someone with a knife or a gun? Does any child in high school not have an idea of the rules by which modern Australian society runs?”

Technology had made doli incapax dated, he argued. “It seems obvious that children in the final stages of the 20th century are better educated and more sophisticated than their counterparts 200 years ago. A child in Australia has access to television, radio and the Internet, and has a far greater understanding of the world than a 12-year-old in rural Britain in 1769.”

But children are not like computers; input does not necessarily translate into appropriate output. They must be taught how to process the information they receive. And for how long should they be buffered from adult consequences because of other aspects of their childish natures?

One of the two British boys who battered to death toddler James Bulger in 1993 was surprised when police told him they could prove he was at the scene. The boy did not understand that they were referring to forensic evidence. He asked them whether they had the power to bring James back to life and question him.

The director of the National Children’s and Youth Law Centre, Louis Schetzer, says: “I hardly think exposure to police shows on commercial television is necessarily an instrument by which children can be assumed to have a greater level of responsibility and knowledge of the context of their responsibilities and rights in the criminal justice system.

“Effectively, the principle of doli incapax allows that a young person has developing capacities and that there is no standardised model you could hold inflexibly to all 12 or 13-year-olds.”

He argues that children should not even be transferred to an adult court if they are under 14.

British lawmakers have leant more towards Scarlett’s view. They reversed the burden of proof regarding doli incapax, putting the onus on the defence to prove the child did not form the intent to commit the crime, following the Bulger murder. Two-year-old James was abducted from a shopping centre and killed by two 10-year-old boys.

Since then, in Norway, three boys aged six battered a five-year-old girl and left her to die; in France, three boys, one aged only 10, kicked a tramp to death; and in the US, two boys aged 10 and 11 dropped a five-year-old 14 storeys to his death for
refusing to hand over his lollies.

Public outrage at such atrocities has fuelled a push to find young people more culpable for their offending, says Terry Bartholomew, a lecturer in forensic psychology at Deakin University. “When society perceives a youth crime wave, the response is always to increase the state’s punitiveness. The majority of American states now transfer children who have committed homicide-related offences to the adult system. A private member’s bill in Queensland was recently submitted to try to reverse the presumption of doli incapax.”

Bartholomew has studied the 18 cases of juveniles charged with homicide-related offences in Victoria since 1990. They do not include this year’s three: a 15-year-old boy charged with killing a grandmother in her back yard; and two sisters, 13 and 15, charged with fatally stabbing a friend’s mother.

Bartholomew says the typical case involves a teenage boy disturbed during a burglary who panics and grabs a pair of scissors or a kitchen knife to fight his way out, with deadly consequences for the person confronting him.

He believes there are difficulties with transferring children to adult courts and sees contradictions in the way courts try to determine criminal responsibility by examining the offender’s background. “If Johnny comes from a good home, should he have known better? Is he more likely to be culpable than Jimmy, who comes from a broken home? … And where do you find a jury of their peers? The local high school?”

The manager of policy with Victoria’s office of public prosecutions, Bruce Gardner, says the age of qualification for jury duty has always been higher than the age of qualification for being an accused. He says the office assesses each juvenile case on its merits, and some do not proceed because it is assumed that doli incapax would apply.

A case would go to the Supreme Court only if it were thought appropriate because of the seriousness of the offence and the capacity of the child. “If it’s a serious case, they might get a technically more detailed and correct hearing in the Supreme Court than the Children’s Court. It might be more likely that they would be acquitted.”

Individual stages of intellectual and emotional development are not the only complex issues. Children now reach puberty earlier than in previous generations; they are taller and heavier as well as sexually developed at a younger age.

The barrister and psychologist Professor Don Thomson, of Charles Sturt University in NSW, says: “This issue looms large where you’ve got sex offences by 13-year-olds; because they’re sexually mature, when they commit rape or other sexual molestation, should you therefore invoke adult law?”

In Perth, 14-year-olds were among a group of six youths who recently appeared before the Children’s Court charged with pack rape.

Thomson says the trend is to treat juveniles more harshly and that this reflects a more punitive society. His research into views on sentencing has found that, while everyone surveyed said rehabilitation should be the main aim of the justice system, when asked to judge imaginary scenarios they wanted punishment to be severe.

“What people say and what they do are different,” Thomson says. “People focus on the consequences of the offence. They are not interested in mitigating factors, in looking at intent or whether a person shows remorse.

“This was reflected in the Lawrence Government in WA trying to introduce the most draconian laws in the British Commonwealth: curfews and making the penalties for juveniles more severe than for adults. In Western Australia and the Northern Territory, it’s reflected with three strikes and you’re in (jail), no matter what. And it’s reflected by the push for truth in sentencing.”

Thomson says research suggests that children must be at least 12 to have a proper understanding of consequences, but he believes many 14-year-olds have not developed this capacity. “That’s part of the reason why the age of adulthood is 18. We don’t allow children to enter into contracts because they don’t have a full appreciation of the consequences; we don’t allow them to marry, because they don’t appreciate the implications of that either.”

They also take a long time to develop control of their irrational impulses. “You can take children down to a road-safety place and they do all the road rules right. You send them off on their bicycles in the street and they violate everything they know. It’s the inability to integrate what they’ve learnt and apply it in a live system.”

The lawyer for the young rock-thrower appealed to that principle. He told the jury that “reasonable” teenagers – the imaginary yardstick by which the accused boy was to be judged – were capable of recklessness quite incomprehensible to adults; that “constantly you hear 13 and 14-year-olds who are quite reasonable asked this question by their parents: `How could you be so stupid?”‘ The rock-thrower and his friend (who had shared the activity with him but not the fatal throw) were acquitted.

But ambivalence remains about the appropriate response to children whose actions have monstrous consequences for others. In the Corey Davis case, the original magistrate thought charges should not be pursued, the public prosecutor thought they should, and the jury last week concluded that they could not convict the boy.

Internationally, there is neither consensus nor consistency. In Britain, James Bulger’s killers faced waves of punitive rage over their horrific crime. Their initial sentence was increased from eight years to 10. Then the Home Secretary intervened and tried to make it 15 (the House of Lords overruled him).

The boys were recently deemed by the European Commission of Human Rights to have been unfairly treated during their original trial. In a major turnaround, there are now calls to free them, the most notable coming from Britain’s chief inspector of prisons, General Sir David Ramsbotham.

Meanwhile, in the United States, a Michigan boy last month became the youngest American to be convicted of an adult charge of murder. Nathaniel Abraham now faces the possibility of life in jail. When he shot his victim, he was 11. He, too, has below-average intelligence but the jury decided he knew the gun was dangerous.

The mother of the slain man had no doubt about the verdict. “Justice has been served,” she said. But Nathaniel’s lawyer had no doubt about the verdict either. “He doesn’t understand it,” he said. “He literally never has.”

First published in The Age.