0

I recently asked this question describing a hypothetical grievous assault scenario. I thank those who answered for their specific / accurate info.

I want to further understand how it affects the scenario if the person is not an adult, but under the age of 18.

Possibly you can see where I'm going with this ...

  • Scenario adjustment #1: The victim is a minor
  • Scenario adjustment #2: The victim is an infant, and the suspect is a parent
  • Scenario adjustment #3: The victim is an infant, and the suspect is a non-medical person commissioned by the parent to do this
  • Scenario adjustment #4: The victim is an infant, and the suspect is a medical person commissioned by the parent to do this

UPDATE:

So my previous question had 3 answers after 6 hours. Somehow I feel this is going to be a tumbleweed question.

I am seeking to understand:

Why is such an action a felony crime or GBH on an adult, but not a crime on a minor?

What is the legal basis for that?

FURTHER UPDATE

I'm looking for a specific legal framework or document or law, which provides for / accounts for the difference in handling this scenarios, please.

Improve this question
4
  • 2
    An important part of your previous question was "against his wishes". For this question even to be meaningful, you would need to define the "wishes" of an infant. Even for a non-infant minor, forcefully expressed wishes not to go to school today have no legal force.
    – Tim Lymington
    Nov 22, 2018 at 20:41
  • Obviously an infant does not want part of his penis cut off. I don't see what there is to define. For your example of "forcefully expressed wishes not to go to school today have no legal force", I struggle to see how it's directly applicable. My own daughter does not go to school. She is home-schooled. This is 100% legal.
    – Stewart
    Nov 23, 2018 at 5:32
  • 4
    This series of questions begins to seem more like a way to introduce a rant about circumcision than an honest question. If you want to ask about the legal status of infant circumcision, please do so openly without circumlocutions; there is no sense in trying to drive the "debate" because this site is not for debates (please check the FAQs). Questions and dissertations about what should or should not be are not a good fit for this site.
    – SJuan76
    Nov 23, 2018 at 10:43
  • @SJuan76 Thank your pre-emptive judgement about my motivations. However, your telepathy failed you, and I have no intention of starting a rant at all. I want to understand the legal basis for an act being crime against an adult, which is not a crime against a child. There are other acts of violence which fit this, not just genital cutting. I don't need to know the legal status of circumcision, which is why I don't mention it. I want to understand the legal logic, the legal basis. Why is it OK to do to child, what you would never do to an adult?
    – Stewart
    Nov 24, 2018 at 7:32

2 Answers 2

Reset to default
5

In the US, there are no laws against surgical circumcision with informed consent (and I don't know of any such laws in any other country). Parents are generally allowed to grant surrogate informed consent. There is no requirement that circumcision be carried out by a licensed physician or other approved practitioner. A person can be held civilly liable for damage done by the procedure. There are no criminal prohibitions in the cases that you describe, but there could be civil interventions. In particular, the court could override parental consent – for instance, if a parent ordered circumcision of their 17 year old.

If some person does the circumcision without parental consent, that could be a crime. The key distinction is parental consent. The law grants parents the power to act on behalf of the child, under the premise that children do not have the capacity to act in their own best interest, and cannot reasonably be forced to bear the full consequences of their actions. These are long-standing pre-common law premises, which even predate the promulgation of English common law. "Best interest" is not a technical term requiring definition, but it is a factual matter that is very difficult to judge. Judges use solomonic wisdom to determine whether a surgery is in the best interest of a child when it is medically advantageous but psychologically detrimental. Just as an adult can consent to a circumcision thereby negating any accusation of assault, so too can a parent consent on behalf of their child.

Improve this answer
2
  • Thank you for this answer. I'm curious about two parts of it. One is the line "cannot reasonably be forced to bear the full consequences of their actions" - given that an infant or child is more likely in this example to favour inaction rather than action, does it still hold. As you mentioned US, which law or constitutional item makes this clear in a legal sense - that a child has not capacity? My second item of curiosity is the phrase "best interests". Where is this defined, in a legal sense?
    – Stewart
    Nov 24, 2018 at 7:37
  • How does a judge use "solomonic wisdom" in a case like this? He can't literally threaten to have the child cut in half!
    – Stewart
    Nov 30, 2018 at 6:12
3

The difference is one of intent and consent. In the linked question, the act was presented with no suggestion of benevolent intent on the part of the actor (and no hint that you were in fact talking about circumcision). Male infant circumcision is normally done with the consent of the parent or guardian on behalf of the infant, and is generally intended for the well being of the infant (whether one agrees with the practice or not, that is the intent). As another answer says, an infant is not able to give informed consent to this or any medical procedure, and the uninformed objections of an infant or a pre-rational child to any medical procedure, or indeed any act reasonably believed to be for the child's long-term benefit are not generally considered to be legally binding.

If an adult was found to be incompetent to make medical decisions (as is quite common in cases of dementia, and some other conditions), and if it were reasonably believed, on medical advice, that a circumcision would be for the benefit of the adult (unlikely but possible) then it could and would be carried out over the objections of the adult. It is not at all uncommon for a guardian to authorize surgery (for example the removal of a tumor) on an adult, over the adult's own wishes, when the adult is not considered competent to give or withhold informed consent. It is not the age but the lack of competences, and the benevolent intent of the guardian, that matters.

Improve this answer
7
  • You raise a most interesting example, regarding the older man with dementia. What would actually happen in that case, to make it legal? The doc says "We should do X." The man says, "I don't want X". A 3rd person, a "guardian", says "Do it anyway." Is that all it takes? Does the term "guardian" have a specialised legal definition?
    – Stewart
    Nov 24, 2018 at 7:40
  • 2
    @Stewart: The definition of, and requirements for, a guardian, will vary by jurisdiction. The important point is that an adult has the right to make his own decisions unless a court orders otherwise: a child's consent is given by a parent (again, unless a court orders that somebody else decide - I don't know of any circumstances where a minor can decide on medical treatment).
    – Tim Lymington
    Nov 24, 2018 at 10:06
  • 1
    @Stewart: Normally, family or friends file a petition with a court saying that Person X is incompetent and needs a guardian. There is a hearing. Medical and other testimony are presented. If the court decides that X cannot make decisions for himself, the court chooses someone to be a guardian. Often a family member, perhaps an adult child of X.The guardian then has p[ower to make both financial and medical decisions for X, including where to live, what to buy, and what medical procedures to allow. The guardian is supposed to act in the best interest of the subject.
    – David Siegel
    Nov 24, 2018 at 19:30
  • 1
    My father had dementia, and my siblings and myself considered having one of us appointed as a guardian. We never needed to, but towards the end, the people running the place that he lived accepted our directions. We did have both medical and financial powers of attorney, which is only one step short of a guardianship.
    – David Siegel
    Nov 24, 2018 at 19:32
  • 1
    Have a look at this AARP Magazine article about guardianships and some of they ways that they can go wrong.
    – David Siegel
    Nov 25, 2018 at 0:09

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .