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Criminal Law Essay on Case of Private Human Behavior

Question

Task: You are required to write a criminal law essay on the topic ‘The criminal law is a very limited tool for regulating human behavior. It should be used as little as possible to limit private choices, where everyone is consenting.’ Do you agree? Discuss with reference to two of the following areas of law covered in the course:

  • boxing or other contact sports;
  • tattooing;
  • body piercing;
  • extreme cosmetic surgery;
  • male circumcision;
  • B&D (‘Bondage and Discipline’ practices)

You should discuss the role of the criminal law, drawing on the ideas (for example) in the Hart/Devlin debate, and use the principles discussed there to outline and critically evaluate the law in relation to the two chosen areas in light of the essay question.

Answer

Introduction
The concept of criminal law explored in the present context of criminal law essay refers to the body of law that deals with offences. A crime is described as an act committed in violation of a law that prohibits it or an act excluded in violation of a law that orders it. In addition, criminal legislation should be passed prior to the commission of the offence. Keeping this in mind, the following essay outlines the scope and content of criminal law in the case of private human behaviour, the caveat being that everyone involved is consenting. To establish the mentioned topic, the implications of criminal law are first discussed. It is followed by a discussion on whether criminal law is applicable in two unique scenarios -male circumcision and body piercing.

Implication of criminal law
The definition of criminal law can be defined in various ways. A lot of examples can chrome to this definition like murder, robberry, manslaughter and many others like this. All the violent activities related to crime are called crime. The rules and regulations of the constitution regarding crime are called criminal law. Basically criminal laws are bound to make punishments for the criminals and to make solutions for avoiding any criminal offence. Criminal law is a different section from the entire structure of law and it may vary to the judgement power. The main target behind the formation of criminal law is to punish the criminals and make them afraid of their crime.

Implication of criminal law depends on some priorities. It depends on the subject of crime, what type of criminal offence it is, on the percentage of harm, impact on other people and specially what kind of punishment of law does the criminal deserve. First thing to justify is that to find out the exact nature of crime, means whether it is crime or not. As an example we can take the stock market or share market. Stock market or share market is a type of trading with a risk factor. To invest money in the stock market or share market is a legal and not a criminal offence. People invest their money in different sections of stock market and share market and make profit from buying and selling products or shares to the open market. Though it has a risk factor and can be harmful to money to some persons, it varies from man to man and it can not be mentioned as a criminal offence. These are people’s personal choices. Body piercing is another example like this. It should be used as little as possible to limit private choices, where everyone is consenting

Discussion
Male circumcision

Male circumcision can sometimes be required for medical reasons but it is also performed for religious or cultural purposes. This is referred to as "ritual" or "non-therapeutic" circumcision. Doctors are permitted to refuse to perform the procedure for "ritual" or "non-therapeutic" purposes if to do so will go against their conscience. In both circumstances, male circumcision is an irreversible surgical procedure. "Ritual" or "non-therapeutic" circumcisions are often performed on male children when they are very young. Because the procedure is permanent and because these children are often too young to be able to provide informed consent themselves, the practice is the topic of some controversy. For some, ritual circumcision is considered to be fundamental to someone's cultural or religious identity and conformity. To others, it is seen as permanent disfigurement which risks causing future physical and psychological harm. Many countries and cultures have passed laws limiting, controlling, or prohibiting male circumcision, some of which date back to ancient times. Circumcision is usually assumed to be lawful in western nations, but statutes relating to abuse or child custody have been enforced in circumcision cases. No country outright prohibits infant male circumcision for non-therapeutic purposes. In the case of non-therapeutic circumcision of infants, proponents of legislation in favour of the practise often point to the interests of the parents or doctors, namely the right of religious freedom. Many opposed to the operation argue that the child has the right to freedom from religion.

Circumcision is believed to be practised by one-third of the world's male population.1Per year, about 30,000 ritual circumcisions are held in the United Kingdom.2 The vast majority of them are provided by general practitioners and non-medical religious practitioners outside of the National Health Service (NHS).3 Both Jewish and Islamic law sanction and even encourage male circumcision. Many have expressed concern that, considering the existence of sizable faith groups in Britain that follow this ritual, state availability of religious circumcision services remains, at best, patchy. Religious minorities seek the freedom to exercise their religion, although medical opinion in the United Kingdom has traditionally dismissed religious circumcision, claiming that there is, at best, no solid evidence that the treatment is beneficial, and, at worst, that it a form of genital mutilation. Males born in the United Kingdom who are Jewish or Muslim continue to be circumcised; however, the difficulties in securing religious circumcision on the NHS necessitate regular recourse to the private sector for the execution of this important rite. Mohels, or specially qualified rabbis, may usually cater to the needs of the Jewish people. Because of a scarcity of suitably qualified Muslim practitioners in some parts of the UK, the population often looks to mohels for convenience. Usually, a Muslim general practitioner (GP) or a paediatricianpractising in private practise is consulted to perform the operation, which costs £50–100 on average. Attempts by the Muslim community to convince health authorities to provide religious circumcision on the NHS have largely failed, with only a few authorities actually providing this service. The support, regulation, and training for medical and non-medical practitioners involved in ritual community circumcision are severely lacking. In secular Western societies, the issue of male circumcision continues to elicit substantial controversy2, and although papers continue to be published suggesting that the procedure may provide advantage by protecting against conditions such as HIV infection.3It is possible to infer that many physicians regard the discipline with disdain.

Male circumcision is usually considered lawful in the United Kingdom, providing that valid permission is obtained and the treatment is carried out by someone who is "competent." When the person undergoing the treatment is too young to consent, anyone with parental authority over the infant or the Court must provide consent. Without any permission, the act is likely to be considered an offence. Those with parental responsibilities can make decisions for and on behalf of a child who is too young to make such decisions on his or her own. A mother, like a married father, would naturally have parental responsibilities for her kids. Unmarried fathers, step-parents, and grandparents do not have parental responsibility by default, however they may obtain it. In a 2016 high court case, the parent of two young boys argued that circumcising them would be in their best interests because of his Muslim faith. Their mother was not convinced. The judge refused to provide an order for them to be circumcised, thus agreeing that the ruling could be postponed before the boys were mature enough to have their own approval. If two adults with parental responsibilities cannot consent on whether or not an infant can be circumcised for non-therapeutic reasons, the surgery must not be carried out without leave of the court.

It is clear from the preceding discussion that criminal law plays a very minor part in male circumcision. In the case of small male infants, both parents' permission is required for the operation to be carried out. Children who may share their opinions on circumcision should be included in the decision-making process. In England, the legality of ritual male circumcision is governed by the protection of consent. Evidently, ritual male circumcision is a legal practise for which consent is a legitimate defence, even if that consent is granted by the child's parents rather than the child himself. Criminal Law is not a part of this narrative. The police and the Crown Prosecution may be sluggish and hesitant to respond in reaction to reports of illegal circumcision, perhaps because of the cultural and familial background in which they often occur. The lack of an even balance of parental and child rights in ritual male circumcision shows the criminal law's relegation of core criminalisation values in the name of parental power and religious freedom. Indeed, it prioritises parental interests over children's interests, notwithstanding the fact that the criminal code safeguards all human life and aims to criminalise actions or omissions based on (among other things) protection from injury.

While, as previously said, medical opinion is currently overwhelmingly against circumcision, it is a very significant religious symbol for both Muslims and Jews and is here to stay. All groups would vigorously oppose any law opposing it. Worse, whether it is deemed illegal, as some critics have proposed, it would almost definitely be forced underground, as female circumcision6. So, for the betterment of society ritual male circumcision procedures should not be criminalised but controlled. This would allow the appropriate authorities to provide properly for the child in question with necessary help like local anaesthesia, proper observation to counteract infections and sterile environment. Voluntary male circumcisions occur with full consent negating the need for legal involvement.

Body piercing
Concept of body piercing

Body piercing is a type of art, it is a creation of body decoration in a kind of surgical form. People can modify their body style and give a new art form to their body by this body piercing. People in the new generation as well as in the old generation are getting interested day by day by this form of body art. Body piercing is not at all a new art form in modern days. In ancient times, people were used to body piercing7. When we find old pictures of ancient times we can see the people of that time, having this form of body art. Body piercing is a type of body surgery where the professionals usually cut some portions of the human body where jewellery or other objects can be implanted. Jewellery is meant to give a new, beautiful look to the human body. People from ancient times are using jewellery to different body parts to create an elegant look. This tradition is still in high demand5. Body piercing is part of our trendy fashion not only from today but also from ancient times. People, especially the younger generation, have taken this tradition of body piercing as a highly demanded style to get a beautified look.

People love to do body piercing to make a different look. There are a lot of body piercing styles, like ear piercing, nose piercing, lip piercing and so many. Ear piercing and nose piercing are very common both in eastern as well as western culture. The form of ear piercing is very popular in the entire world and wearing earring has become a global style in the entire style of the world. Nose piercing is also very common among all cultures of the world, while lip piercing and tongue piercing is still uncommon to all. These two types of piercing were found mainly among American and African tribals in the ancient times. Nipple piercing is a different form of body piercing which is getting popular gradually. Behind this form of body art, there are a lot of factors. People from different cultures have different beliefs regarding body piercing. Some people do body piercing only for religious or devotional issues, some people do body piercing only for style and appearance, especially the young generation. Even sometimes people take body piercings as a protestant to some issues. Body piercing is a body art which is done in a minor surgical form by the professionals8. It can be a reason for skin allergy to some extent, physical disorders like fever and even mental stress. By taking some precautions like using modern medical tools, proper sanitization and good professionals, these issues can be avoided. If body piercing is done from renowned professionals and branded clinics, they usually do the job in an efficient manner. They use optimised machines which are automated and are made in a way to do minimal harm on skin. The machines are modernised and give less pain which prevents patients from huge physical damage.

Body piercing and criminal law
Body piercing is a personal choice of people. Body piercing is a type of art, it is a creation of body decoration in a kind of surgical form. People can modify their body style and give a new art form to their body by this body piercing. This form of body art is interesting people in the new generation as well as in the old generation day by day. Criminal law can not be a barrier to body piercing. There can not be any boundary for any art form. At the time of body piercing, if the patient is an adult and if proper consent is taken, then body piercing can not be a criminal offence. If anybody is pressured to do body piercing without his willingness and if this becomes very harmful for him without his consent, only that time it can be a criminal offence6. Body modification to some extent is illegal but doing body piercing with proper consent of the adult customer is legal and it is not to be affected by any criminal law. It is completely people’s personal opinion.

Criminal law is a different form of law in the entire structure of law and it may vary to the judgement power. People who are engaged to any kind of violent activities like murder, robbery, kidnapping or violent attitude regard property, should be assigned under criminal law. The main motivation behind the formation of criminal law is to punish the criminals and make them afraid of their crime9. Criminal law is meant to maintain a proper balance on social behaviour among different cultures of people in a society. The law is made to make a justified circumstance in every society.

Conclusion
Body piercing is considered a type of mutilation by some cultures, especially where it includes areas such as the tongue and genitals. Muslims have a similar perspective on tattooing, and other cultures may hold a similar mindset on ritual circumcision. Given the religious background, it is evident that criminal law should not be included in the cases discussed. Male circumcision and body piercing are personal decisions that are often influenced by social and religious factors. In such a scenario, the most significant factor is consent. If there is consent, none of the above actions should be considered illegal in nature. So, in conclusion, it can be said that criminal law is indeed a limited tool for regulating human behaviour. It should not be used to limit private and personal choices.

Bibliography
1. Williams N, Kapila L. Complications of circumcisions. Br J Surg1993;80:1231–4.

2. Palit V, Menebhi DK, Taylor I, Young M, Elmasry Y, Shah T. A unique service in UK delivering Plastibell circumcision: review of 9-year results. PediatrSurg Int. 2007;23:45–8.

3. Abboud, P., Quereux, C., Mansour, G., Allag, F., &Zanardi, M. (2000). Stronger campaign needed to end female genital mutilation. Bmj, 320(7242), 1153.

4. Szabo, R., & Short, R. V. (2000). How does male circumcision protect against HIV infection?.Bmj, 320(7249), 1592-1594.

5. Barré?Sinoussi, F., AbdoolKarim, S. S., Albert, J., Bekker, L. G., Beyrer, C., Cahn, P., ...& Godfrey?Faussett, P. (2018). Expert consensus statement on the science of HIV in the context of criminal law. Journal of the International AIDS Society, 21(7), e25161. Retrieved from:https://onlinelibrary.wiley.com/doi/pdf/10.1002/jia2.25161%4010.1002/%28ISSN%291758-2652.wha19_vi

6. Carvalho, H. (2017). The preventive turn in criminal law. Oxford University Press. Retrieved from:https://www.arca.fiocruz.br/bitstream/icict/24829/2/Carvalho%20CMN% 20Evolution%20of%20acute%20infection%20.........pdf

7. Coca-Vila, I. (2018). Self-driving cars in dilemmatic situations: An approach based on the theory of justification in criminal law. Criminal Law and Philosophy, 12(1), 59-82. Retrieved from:https://www.academia.edu/download/63657666/Coca-Vila2018_Article_Self-drivingCarsInDilemmaticSi.pdf

8. Ormerod, D., & Laird, K. (2018). Smith, Hogan, and Ormerod's Criminal Law. Oxford University Press. Retrieved from:https://tspace.library.utoronto.ca/bitstream/1807/88954/1/Dubber%20The%20Citizen.pdf

9. Robinson, P. H. (2017). A functional analysis of criminal law. In The Structure and Limits of Criminal Law (pp. 175-232). Routledge. Retrieved from: http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1609&context=faculty_scholarship

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