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Painful / Potentially Harmful Religious Practices and Minors:

The Daily Mail (U.K.) reports:

Syed Zaidi faces up to ten years in prison for forcing [two] teenagers to whip themselves using a bundle of chains with sharp curved blades attached.

The device, called a zanjeer [for a photo, click on the link -EV], has been used for centuries by Shia Muslim men and boys to mourn the death of the Prophet Mohammed's grandson.

Zaidi lashed himself "until his bare back was covered in blood," then told a 15-year-old boy to do the same, and then "grabbed a 13-year-old boy by the arm, pulled off his T-shirt and made him flog himself as well. Both boys later needed hospital treatment for deep cuts to their backs."

It's apparently illegal in England for minors under the age of 16 to take part in such activities, even voluntarily (though of course it's often hard to tell with minors when such a decision is voluntary).

My sense is that the result is quite right on these facts, because this sort of behavior may well cause serious injuries. See also this post of mine about potentially, though rarely, life-threatening infant circumcision practices.

At the same time, the broader question of when it's improper to pressure children to engage in religious acts that are potentially physically painful or uncomfortable is a harder one. Fasting, for instance, is quite uncomfortable, which is one reason that people engage in it for religious reasons.

I'm inclined to say that it shouldn't be a crime to pressure your teenage children to fast, and that it certainly shouldn't be a crime simply to let them fast voluntarily -- again, noting the difficulty in determining voluntariness in many such situations -- despite the discomfort this might cause (unless the teenager has a medical condition that makes such fasting particularly dangerous). So my tentative sense is that the main distinction ought to be between (a) action that causes considerable physical pain or a significant risk of serious injury and (b) action that causes a modest amount of physical discomfort. At the same time, this strikes me as a pretty complicated question, even if the answer in some situations (e.g., whipping with blades until blood runs down your back) is pretty clear.

An extra twist: The law generally lets parents expose their minor children to considerable risk of pain and injury in typical kinds of sports (such as football), and even lets parents pressure their children to participate in such events. Should this be a benchmark for the kinds of risks that would be allowed for religious practices, so that the law would permit religious rituals that involve the same or lesser risk of pain and injury as playing football (or whatever is the riskiest sport that is generally allowed for minors)?

DG:
I think this issue is compulsion, here.
9.5.2008 6:27pm
Don Miller (mail) (www):
Issue is also this activity is designed intentionally to cause injury.

Sports carry an inherent risk of injury but their primary purpose is not injury.

Encouraging your kid to play football doesn't equal encouraging him to cut himself with razor blades
9.5.2008 6:43pm
BruceM (mail) (www):
Let religious people hurt and kill themselves, get them out of the gene pool. Ditto for their kids. Religion is a genetic disorder.
9.5.2008 6:53pm
Mother Theresa:
There we go. Newest authority for Eugene. Daily Mail reporting on Muslims.

Suppose it is true. If we were to discuss LEGAL merits of forcing religious fanatics to whip themselves, then I see trouble for certain Hitler Jugend activist residing in city state in center of Rome. His Opus Dei (sic!) fanatic in SCOTUS is forced to self whip by threats of being send to hell in due time.
9.5.2008 6:53pm
Soronel Haetir (mail):
Also sports that minors participate in (and most that adults participate in) take measures to mitigate the associated risks. Protective equipment and rules work to serve this purpose.

The described ritual instead seems to promote the injury itself as the end instead of just a potential risk.

A better example would perhaps be fire walking where measures are taken to mitigate the risk, yet substantial harm can result.
9.5.2008 6:56pm
one of many:
from the article I'm not certain if there really was compulsion instead of enticement, however the British law doesn't require compulsion and there was no need for them to examine it, but the reporting doesn't provide enough information to render a reasonable judgment.


I'm not certain how to handle the risk thing, while flagellation (even without razors) is risky I'm not certain how to quantify it relative to a sport. While one is more like to sustain some type injury from this type of flagellation, the probability of major injury (severed spine, broken limb etc) is much lower than for many sports. It seems to me that it would be impossible to accurately compare the risks of the two.
9.5.2008 6:58pm
Malvolio:
Issue is also this activity is designed intentionally to cause injury. Sports carry an inherent risk of injury but their primary purpose is not injury.
OK, why is that an issue? It's a distinction, but why is it a difference?

From the article:
At Zaidi's trial, prosecutor Andrew Nuttall said what was permissible in Pakistan was not necessarily permissible in Britain. 'In this country the laws are very different from those in Pakistan,' he added. 'If you want children to perform this act, then take them to Pakistan.'
Wow, discarding your trump card there, aren't you, Andy?

If coercing a child to mutilate himself is morally wrong, malum in se, why would it be OK to force the victim to visit Pakistan and mutilate himself there? Conversely, if it is merely custom, convention, why not let the family decided its own customs?
9.5.2008 7:03pm
tommears (mail):
Instead of self-flagellation, what about the situation of refusing life-saving medical care for juveniles. We've heard several cases in the US where Christian families have done this. The courts here have generally sided with the parents. (especially in the case of teenagers who have stated they are voluntarily refusing treatment).

Is this really any different?

btw I, personally, am definitely opposed to either situation, but I'm not the family, and I don't hold these religious convictions. The question is when does free expression of religion cross the line and who gets to draw the line?
9.5.2008 7:12pm
TomH (mail):
No one says it is malum in se. In modern western society, we have internalized, to a certain extent a level of moral relativism necessary to stop killing eachother over, say, which rite to use in a church service.

This worked pretty well (with exceptions) when everyone was within a limited degree of separation on religiou sissues (all christian, but differing denopminations). Now the ideas we have are being stretched by a wider degree of separation, this case in point, out policy tolerance to be applied equally to all including the customs of Pakistani Islam.

I think the practice is brutal and has no positive effect, but believers in the magic of religion (At least that one) I am sure know that they will go to heaven for their suffering. Good for them.
9.5.2008 7:13pm
Bill Poser (mail) (www):
Mother Theresa,

There we go. Newest authority for Eugene. Daily Mail reporting on Muslims.


Give us a break. The Daily Mail isn't WorldNutDaily or the National Enquirer. Do you really think it just makes up stories about Muslims? Here's the Times report on Zaidi's conviction. More detailed and better written, yes, but the content is substantially the same.
9.5.2008 7:13pm
Bill Poser (mail) (www):
By the way, the Times article makes it clear that the boys were coerced.
9.5.2008 7:20pm
Frater Plotter:
Does it matter whether the conduct is religious? If a parent is an aficionado of BDSM and pressures his teenage son to whip himself as a form of self-gratification, we would tend to think of the parent as a pervert and an abuser. But cloaking the same physical actions in religion seems to legitimize them in some people's eyes.

(Note that most BDSM practitioners would never consider it ethically acceptable to pressure an underage person into participating. That's another difference with religion.)
9.5.2008 7:22pm
Dave Hardy (mail) (www):
I'm just astonished that flogging is a crime in Great Britain. I was under the impression that it had been a major indoor sport for centuries. School days, school days....
9.5.2008 7:25pm
Dilan Esper (mail) (www):
Professor Volokh's approach seems correct to me. The only thing I would say, and this is more of a cultural than a legal point, is that we probably naturally have more aversion to whatever practices other cultures do than the ones we do ourselves. That's why the natural reaction of a lot of people is going to be to defend ritual male circumcision, even against some evidence of dangerousness. The key is to be aware of this tendency and try to judge these cases as best one can on the merits and not a cultural presumption.
9.5.2008 7:26pm
Don Miller (mail) (www):
Malvolio:

Issue is also this activity is designed intentionally to cause injury. Sports carry an inherent risk of injury but their primary purpose is not injury.

OK, why is that an issue? It's a distinction, but why is it a difference?


In general, all human activity has inherent risk to it. There is a risk whenever I get in my car that I will die. There is a risk whenever I climb a set of stairs that I will slip and hurt myself.

To a certain extent, the law allows parents to make reasonable distinctions based on the amount of risk that we, as parents, are willing to accept. youth sports, travel, life in general. At some point the risk of injury becomes so high that as a society, we tell parents that there are some risks that are too much. We make parents put baby's in car seats now for example.

If a group of parents tried to make their children participate in a no-pads full contact football league, I think society would step in and so no too much risk.

In the case of this ritual, it isn't a risk of injury, it is guaranteed that the child will be injured. It should not be outrageous for society to say that a child can't participate in such a ritual. The risk of permanent injury is just too high.
9.5.2008 7:27pm
Eugene Volokh (www):
Frater Plotter: The BDSM hypothetical is unfortunately influenced by our sense that sexual -- or sexualish -- behavior is inappropriate for children, especially when adults are pushing the children into it.

A crisper example would be a parent's encouraging children to deliberately hurt themselves to, for instance, better empathize with the suffering of other people or of animals or what have you, or to build up a tolerance for pain, or to otherwise improve their character. My sense is that this sort of infliction of pain or injury for character-building reasons would raise some of the same questions as similar infliction of pain or injury for religious reasons would.
9.5.2008 7:43pm
Malthus:
What the hell?

The Muslims and Jews have killed more boys, rendered them invalids, given them lifelong genital herpes and turned them into girls than all the flagellation ever done in the history of the world!

Get real! Rabbis' sticking tiny peckers in their mouths is disgusting! It is high time that genital mutilation be criminalized!
9.5.2008 7:43pm
Bandon:
Children should be protected from serious harm until they are adults who are able to decide for themselves what level of danger or pain is acceptable to them. If parents fail to protect their children from harm (through maltreatment, neglect, denial of critical care, etc.), the state should step in to protect the child. Religion, superstition, or any mental incapacity of the parent should not be used as an excuse for harming a child. The only question thus becomes where to draw the line between serious and minimal harm (or risk for harm).

The discussion of harm from sports raises a very interesting line of reasoning that could be applied to anything from pee-wee football to training Olympic gymnasts from infancy. There are certainly cultural difference that influence where that line is drawn.
9.5.2008 7:47pm
Scote (mail):
People need to click and read the original article to get a proper sense of scope. The device the kids were made to use on themselves is not a "whip" in the general sense at all. It is five medium/large knife blades on chains, attached to a wooden handle. Serious injury is all but guaranteed by this henious device.
9.5.2008 7:57pm
hey (mail):
There is a sport that's especially popular in the UK that is "full contact football without pads". It is of course rugby, though the no pad thing is breaking down. Rugby is noted for the low incidence of catastrophic injury as compared with American football - the lack of pads makes everyone rather more reticent. In rugby you get "hurt, not injured".

As to Shia bloodletting rituals - not my cup of tea, and especially barbaric to force minors into it. Good that it was held to be illegal.
9.5.2008 7:58pm
whit:

Instead of self-flagellation, what about the situation of refusing life-saving medical care for juveniles. We've heard several cases in the US where Christian families have done this. The courts here have generally sided with the parents. (especially in the case of teenagers who have stated they are voluntarily refusing treatment).

Is this really any different?


of course. a key distinction in law is between criminalizing ACTS and criminalizing FAILURE TO ACT.

in the cases of witholding medical treatment, it's NOT an act. it's a failure to act. flagellation is an act.

generally speaking, criminal law references ACTIONS not lack of actions.
9.5.2008 7:58pm
whit:

Children should be protected from serious harm until they are adults who are able to decide for themselves what level of danger or pain is acceptable to them.


england sets the age at 16, which is not adulthood (in america). however, it's the same age that many states set as age of consent, as well as the age at which many people think it's perfectly reasonable for a girl to get an abortion without parental notification/permission .

so, I think 16 is an interesting #
9.5.2008 8:01pm
Fub:
Soronel Haetir wrote at 9.5.2008 5:56pm:
The described ritual instead seems to promote the injury itself as the end instead of just a potential risk.

A better example would perhaps be fire walking where measures are taken to mitigate the risk, yet substantial harm can result.
So where does the distinctly American religious practice of snake handling fall in that continuum?
9.5.2008 8:25pm
Bill Poser (mail) (www):
With regard to parents denying their children medical treatment out of religious belief, this isn't simply "lack of action" because the parents have a duty of care, and not merely a civil duty of care, but one that is generally enforced by criminal statutes.

Parents have been criminally prosecuted for failure to obtain medical treatment for their children in the case of serious illness. Moreover, courts with some frequency issue orders permitting medical treatment at the request of doctors. The cases in which the courts have allowed the refusal of medical treatment for serious illness are, I believe, all cases in which the treatment was refused not only by the parents but by the child itself, where the child was old enough that the court determined that the child was capable of making an informed decision.
9.5.2008 8:41pm
whit:
bill, i'm aware of the duty of care distinction. but your original questions didn't address that. it merelyt said "what's the DIFFERENCE?"

so i explained a DIFFERENCE. an act vs. a decision not to act.

that is a significant distinction.
9.5.2008 8:51pm
Bill Poser (mail) (www):
whit,

That wasn't me. That was tommears.
9.5.2008 9:38pm
Dave Hardy (mail) (www):
"So where does the distinctly American religious practice of snake handling fall in that continuum?"

Snake handling is harmless when properly done. For example, I handle rattlesnakes with a 12 gauge shotgun, or by running them over in a car.
9.5.2008 9:49pm
Glenn W. Bowen (mail):
<blockquote>
to mourn the death of the Prophet Mohammed's grandson
</blockquote>

I get a little emotional every year around this time myself.
< /sarc >

key words: medieval, brutal, asinine
9.5.2008 10:06pm
Richard Nieporent (mail):
That's why the natural reaction of a lot of people is going to be to defend ritual male circumcision, even against some evidence of dangerousness.

Dilan Esper, is there any reason why you ignored the potential benefits of circumcision?

Circumcision appears to offer men even greater protection against the AIDS virus than thought and also partially shield them against a common sexually-transmitted disease, two studies presented at the world AIDS conference said Thursday.

US researcher Robert Bailey of the University of Illinois at Chicago put forward long-term data from a trial in Kisumu, Kenya, that in its initial phase enrolled 2,784 uncircumcised uninfected men.

Half of the group were circumcised, and the others were circumcised at a later date and they were later tested for HIV.

Previously-published research from this trial found that, after two years, circumcised men were 59-percent less likely to contract the human immunodeficiency virus (HIV) than uncircumcised counterparts.

The benefit was so astonishing that at this 24-month mark, the uncircumcised men were offered circumcision, as it would have been unethical not to have done so.


http://tinyurl.com/62my8n


Circumcising men may significantly reduce the rate of cervical cancer in women by decreasing the spread of a sexually transmitted virus that causes nearly all cases of cervical cancer, researchers are reporting.


http://tinyurl.com/5becb9
9.5.2008 10:13pm
frankcross (mail):
The withholding of care issue is interesting, and it often is an action. While "withholding" technically is not an action, there are cases where parents affirmatively prevent medical care that providers were preparing to give.
9.5.2008 10:28pm
Soronel Haetir (mail):
Unless there is some American form of snake handling that I'm not aware of, I would not call it distinctively American. I have seen numerous pieces about snake handling rituals from south and south east Asia.

As for the risk presented, I just don't know.
9.6.2008 12:01am
Fub:
Soronel Haetir wrote at 9.5.2008 11:01pm:
Unless there is some American form of snake handling that I'm not aware of, I would not call it distinctively American. I have seen numerous pieces about snake handling rituals from south and south east Asia.

As for the risk presented, I just don't know.
I wrote abbreviated and depended upon the link for clarification. I was referring specifically to American Christian religious snake handling rituals, distinct from the practical ones described by Dave Hardy at 9.5.2008 8:49pm.

The rituals developed in the 20th century. The faithful handle venomous snakes, and often quite vigorously, to demonstrate their faith in certain Bible verses. They apparently believe:

1. If they are sufficiently faithful, the snakes won't bite them; but

2. If they are bitten, then if they are sufficiently faithful they will not die; but

3. If they die, then they have been called home by God as a good and faithful servant.

The purpose of the ritual is not to promote injury on oneself, but no particular measures to mitigate or prevent injury are taken either. That's why I wondered how they fit into the scale or continuum of purposes you described.
9.6.2008 12:42am
one of many:
Ah, Hensley. Not sure how to handle it, but those who don't want to weigh probability of harm and only consider seriousness of harm would probably ban it. The problem is that it is impossible to accurate quantify the probably of harm occurring, the practice is somewhat underground so there is no way of knowing how often it occurs and how often it results in injuries/fatalities.

The whole continuum of intent (purposes) puzzles me, perhaps because of confusion over what is intended. Muslims such as M. Zaidi do not as a religious matter flagellate themselves with the intent of causing any injuries, just incidental cuts in the infliction of pain. As a practical matter there is a social component of being more pious by having more scars from it (although if you go too far people begin to think, as a bear might put it, that "you didn't really come here for the hunting"), but this isn't really part of the religious ceremony, just a social dynamic among a religious community. This causes problems if you're trying to decide on intent, do we just consider the religous intent or do we have to consider 'peer pressure' effects too?

I doubt anyone can create a valid calculus of acceptable risk by which we can calculate if a given practice like pee-wee football or dodge ball or self flagellation is acceptable or unacceptable. I know darn well that I cannot. I strongly suspect it must remain a 'I know it when I see it" sort of thing.
9.6.2008 4:06am
JeanE (mail):
One important distinction between fasting and flagellating is that every parent of a toddler has learned that you cannot force someone to eat against their will, short of putting them in the hospital on a stomach tube or IV feeding. OTOH, you can prevent them from doing things that could cause harm, like flagellating with chains and razors.

Also, fasting is uncomfortable, but unlikely to cause actual injury or harm unless taken to extremes, while flagellating with this sort of device is guaranteed to cause harm, and is intended to do so.
9.6.2008 10:15am
one of many:
Intent is a big red herring (as presented), however examining it does lead to a more reasonable scheme for deciding between permissible and impermissible practices, and not just for children. In the instantaneous case the intent of the ritual is not to cause harm, it is to create empathy (with the suffering of the Prophet upon his son's or was it grandson's death). The means of creating this empathy is through suffering, the means of creating this suffering is through the infliction of pain, the means of creating this pain is through self-flagellation, the technique of using the razor/chain flail is part of this self-flagellation. Without questioning the validity of the ritual or the intent of the ritual we can find various techniques unacceptable, and prohibit them.

This may have an incidental practical effect of prohibiting certain religious rituals, however at no point should the ritual itself or it's intents be the subject of scrutiny. To pick on Catholics, if transubstantiation required instead of a cracker the flesh of a live person, and the Eucharist continued to said person being slaughtered and fed to the congregation, it would be acceptable to ban the killing of the person. It would not be acceptable to ban attendance at a mass, not acceptable to ban the act of transubstantiation, questionably acceptable to ban the act of accepting communion (no eating human flesh even if it is part of your religion, not certain how you can really justify this as a legitimate exercise of police power), and unacceptable to ban the slaughtering of the transubstantiated person per se, only the act of killing as a means of effecting this slaughter which would effectively prevent the slaughter. (Of course this would open the whole right to commit suicide thing which is a major mess, so it's a good thing Catholics have learned how to transubstantiate bread into flesh.)

We can apply a similar line of reasoning to non-religious activities. Without infringing the right to play football, we can determine that a particular technique like knifing or spearing is to be banned, even though it's intent is not to cause injury (in theory...). This is where we have to reintroduce intent, performing a completely legitimate in football tackle on a sidewalk to a random passerby should be banned while it allowed on a football field Nevermind, we don't have to, in football a legitimate tackle can only involve the players and performing an otherwise legitimate tackle upon a coach, referee or other person is illegitimate.
9.6.2008 3:28pm
Seamus (mail):
Rugby is noted for the low incidence of catastrophic injury as compared with American football - the lack of pads makes everyone rather more reticent.

It makes them "reticent" (i.e., closed-mouthed)? Or maybe you meant something like "cautious" or "restrained"?
9.6.2008 8:06pm
one of many:
I suspect it is reticent Seamus. If we compare the Australian, NZ or US rugby injury rate to the American football injury rate (professional/union, amateur, school take your pick they all show the similar trends) rugby has a notably higher injury rate with a similar percentage of serious injuries. This would indicate that the padding is not the real reason for the lack of catastrophic injuries among UK rugby players but something else like acculturated restraint or caution. Cannot recall having seen UK rugby, but watching US, NZ and Australian rugby has convinced me that those groups do not, as a rule, exercise anything which could be called caution or restraint.
9.7.2008 12:55am
one of many:
The above is predicated on the UK rugby injury rate being lower than other rugby groups, something I haven't bother to check. Dang, now I wish I was still young enough to play rugby, and light enough to play, and had the endurance to play , and while I'm at it the alcohol capacity to handle the celebration after - don't grow old it's not fun.
9.7.2008 12:59am
markm (mail):
"Sports carry an inherent risk of injury but their primary purpose is not injury."

How about boxing?
9.7.2008 10:17am