The New South Wales doctor who excised a woman’s genitalia “for her health” has had his gaol sentence increased by a further 18 months. In March 2011 former south coast gynecologist Graeme Reeves was convicted of inflicting grievous bodily harm on a patient, Carolyn DeWaegeneire, and sentenced to two and a half years gaol. Both he and the prosecution then appealed, Reeves because he claimed the jury had been wrongly directed, the prosecution because the sentence was “manifestly inadequate” to the gravity of the offence. On 21 February 2013 the Court of Criminal Appeal rejected Reeves’ appeal and increased his sentence by a further 18 months.
The case goes back to 2002, when Mrs DeWaegeneire sought treatment for a small, discoloured (possibly pre-cancerous) patch on her labia. Instead of treating it medically or delicately cutting it out with minimal tissue loss, Reeves performed an operation under general anaesthetic during which he excised most of the woman’s external genitalia – much to her horror and dismay. Mrs DeWaegeneire then faced enormous difficulties and obstruction, and showed amazing fortitude and persistence, before the authorities took action, but eventually Reeves was charged under Section 45 of the NSW Crimes Act, covering female genital mutilation. At his trial in 2010 he claimed that the radical surgery he had performed was necessary to stop the cancer from spreading and thus essential for the woman’s health. In this case the jury was unable to agree on a verdict because Section 45 (3) (a) permits a defence to the cutting of the female genitals if it is “necessary for the health of the person on whom it is performed and is performed by a medical practitioner”. Although Reeves provided no evidence that the lesion was cancerous or likely to spread, sufficient numbers of the jury were evidently persuaded to give him the benefit of the doubt, and a new trial was ordered.
For those who are surprised at the absence of a third condition that must be met for a defence against genital cutting, namely, the consent of the subject, it must remembered that Section 45 does not allow consent as a defence against female genital mutilation. This is to ensure that young women are not coerced by their family into giving a consent they do not really feel; although this is a necessary safeguard, it prevents competent adult women from electing genital modification surgery even if they desire it. Without reducing the protection given to the young, it would be possible and a sensible precaution to add “informed consent of the patient” to the relevant sub-section.
At his second trial in March 2011 Reeves was charged under a different section of the Crimes Act – Section 33, covering wounding with intent to inflict grievous bodily harm. In this case the defence of “medical necessity” was not available, and although he tried it on, the jury was not convinced and duly found him guilty, largely on the basis that consent had not been given and the accused knew it had not been given. Announcing his appeal, however, Reeves was still trying to rely on “professional judgement” as the excuse for his actions. His barrister even tried to argue that the case should not have come to a criminal trial at all, since he “believed” that what he was doing was for the benefit of his patient. This defence will not hold, however, as doctors can believe (or say they believe) all kinds of cock and bull; the justification for surgical removal of functional body parts is not that a doctor “believes” such an excision to be in a person’s best interests, but if the operation is generally accepted by the medical profession as necessary in the circumstances and the patient has given explicit consent. Without such consent, any interference with another person’s body is assault – as the prosecution correctly argued in its recent appeal.
This point was emphasized in the court judgment, which rejected as totally spurious Reeves’ attempt to argue that a patient’s consent meant merely a general authorization for the doctor to do whatever he thought desirable or necessary. On the contrary, Bathurst CJ reiterated the understanding of consent that has prevailed in Australian law since the High Court decision in Rogers v Whitaker (1992) and confirmed the trial court’s verdict that Reeves knew he did not have the patient’s consent for what he did to her. On the question of the sentence, the Chief Justice stated that in view of:
the offence committed was
an objectively serious offence of a high order. The respondent did not, as he was bound to do, provide a clear explanation of the extensive and radical surgical procedure that he intended to carry out and did subsequently carry out. His failure to provide a proper explanation to the complainant, and his undertaking surgery without obtaining her consent, constituted a gross departure from accepted standards of surgical practice amounting to a grave offence.
Accordingly, the sentence was increased to 4 years with a minimum parole period of 2 years.
Implications for non-therapeutic circumcision
This saga may have implications for medical law in general and for doctors who perform surgery on the genitals in particular. It confirms the old legal principle that any interference with a person’s body without consent is a criminal assault, punishable by imprisonment. It establishes that deliberate wounding of the genitals constitutes grievous bodily harm. It makes clear that doctors may not rely merely on their professional opinion, but must produce evidence for the value of and necessity for any proposed treatment. And it drives home the point that no treatment is permissible without the informed consent of the patient. Because Reeves’ conviction was under gender-neutral provisions of the Crimes Act, these principles apply just as strongly to males as to females, with possible implications for non-therapeutic circumcision of male minors.
For there is something eerily familiar about Reeves defence that he was “only trying to save the woman’s life”, and “honestly believed” that the surgery was necessary for her health. We hear it every time enthusiasts for routine circumcision tries to justify the amputation of part of a boy’s external genitalia. “You may not like circumcision”, they say, “but it is necessary for your future health; and if you refuse to accept it voluntarily, it must be imposed on you by force, for your own good.” There is no difference between Reeves’ defence and the arguments of circumcision advocates, both in Australia and overseas. They, too, “honestly believe” that removal of part of a boy’s genitals is necessary to save his life, and they regard issues such as informed consent, medical ethics, human rights and personal preference as tedious, humanistic scruples that merely get in their way.
Increasingly, however, it is recognised that the double standard that allows female genital mutilation to be condemned and punished but male circumcision to be tolerated and even promoted as “necessary for health” (as Reeves claimed with respect to Mrs DeWaegeneire) cannot be sustained. If it is wrong to remove a female’s genitals without her fully informed consent, how can it be acceptable to remove part of a male’s genitals without his fully informed consent? In this age of gender equality, this is one form of discrimination that will come under ever-sharpening scrutiny.
The following definition was given by Justice Woods at Reeves' trial in 2011
As a matter of law, any person has a right to his or her bodily integrity. In the context of this case, the law says that medical surgery cannot be performed on an adult person except with the voluntary and informed consent of the patient. “Consent” means “agreement”. Consent may be in writing, or spoken, so long as it is voluntarily given. To be valid, consent must be “informed”. This means that the medical practitioner must at least explain to the patient the purpose of the operation, the part or parts of the body to be cut or removed, the possible major consequences of the operation, and any options or alternative treatments which may be reasonably available.
The explanation must be given at a time when the patient is conscious. If the patient is affected by drugs or anaesthesia, a purported consent at that time may be invalid if the patient cannot understand it. An explanation given in merely technical medical language may also fail to lead to valid consent, because the patient does not understand it or is misled by it. The purpose of the consent procedure is to inform the patient and to obtain the patient’s agreement to what is performed. If the explanation is not communicated adequately, by clear writing and/or words, the meaning of which she can grasp, the patient may not understand the explanation, or a vital part of it. If so, it cannot be said that there is “informed consent.”
Full judgement available at Caselaw New South Wales
A former New South Wales doctor who excised a woman’s external genitals during an operation to remove a small patch of discoloured tissue on her labia has been found guilty of assault occasioning grievous bodily harm. His victim, aged 58 at the time of the operation, told the court that the doctor had informed her that he was going to remove a lesion, but never mentioned removing anything else. If he had, she said “I would never have walked through that hospital door to start with”. The doctor’s defence, that the complete removal of the woman’s external genitalia was necessary to stop a cancerous growth from spreading, was rejected as spurious. The doctor’s name has been suppressed by the court, though will presumably be revealed when he comes up for sentencing at a later date.
The case outcome has been reported in most of the Australian news media and the ABC. The following report is from the Sydney Daily Telegraph.
A FORMER NSW doctor has been found guilty of maliciously inflicting grievous bodily harm on a patient whose genitals he removed without her consent. The doctor had told a nurse that the patient's husband was dead “so it did not matter anyway” that he had taken her clitoris during the operation, the Sydney jury heard. The doctor, who cannot be named for legal reasons, denied maliciously inflicting grievous bodily harm (GBH) on Carolyn DeWaegeneire with intent to cause her GBH in 2002. But late this afternoon, the NSW District Court jury found him guilty after another jury failed to reach a verdict last year.
Ms DeWaegeneire, 58 at the time of the operation, told the jury the doctor had informed her he was going to remove a lesion but never mentioned taking anything else, including her clitoris. If he had, “I would never have walked through that hospital door to start with”, she said, adding she “never, never, never, never” would have consented to the removal of her genitals. She had sought treatment for a small patch of discoloured skin on her labia, later identified as a form of pre-cancer.
Ms DeWaegeneire said the doctor told her of his intention when she was about to pass out from anaesthesia on the operating table. “He leaned over me and, for my ears only, he said: ‘I’m going to take your clitoris too’,” she said. She told the jury there was “nothing” left of her genital region. It was “all gone”. Theatre nurse Sharon Demmery said she remembered the operation because of the large size of the tissue which was taken from the patient. “I said, ‘That is fairly radical’, and (the doctor) said, ‘Yes, if I didn’t take that much, the cancer would spread’,” Ms Demmery said. She said something came up about the clitoris, and she told the doctor, “You wouldn’t be taking my clitoris, no matter what.” He then said that “the patient’s husband was dead so it did not matter anyway.”
The doctor had maintained that, far from having an intention to inflict harm on the woman, he was “trying to save her life”. He said he honestly believed the surgery was needed for her health.
Judge Greg Woods will sentence him at a later date.
Margaret Scheikowski, Former doctor guilty of removing Carolyn DeWaegeneire's genitals without consent, Daily Telegraph (Sydney), 11 March 2011
While we will all be shocked at this appalling example of medical mayhem, and will applaud the fortitude of Ms DeWaegeneire in facing public humiliation to bring this butcher to justice, we should also spare a thought for the many other victims of genital mutilation whose cases do not reach the courts or the newspapers. We refer, of course, to the thousands of unnecessary circumcision operations performed each year on male infants and boys in New South Wales, all of whom would also have fled from the hospital if they had known what was being done to them and if they had the power to resist or run away. Circumcision may not be as radical or as crippling a surgery as the excisions performed on Ms DeWaegeneire, but it is just as gross an affront of a person’s bodily integrity and human dignity, just as gross a violation of the principles of medical ethics, and just as unnecessary.
Without wishing in any way to minimise the enormity of this case, we suggest that in, some ways, routine circumcision of infants and boys is even worse than what was done to Ms DeWaegeneire. She really did have a pre-cancerous lesion on her genitals that needed limited surgery; none of the infants and boys routinely circumcised have anything wrong with their genitals, and did not need any kind of surgery at all. She gave limited consent to a minimal procedure; the infants and boys gave no consent at all. She had already experienced a full life with a complete body and a normal set of genital organs; circumcised infants and boys will never know what it is like to have a complete body and a normal set of natural genitals.
The doctor’s defence also demands analysis. He was, he claims, “only trying to save her life”, and “honestly believed” that the surgery was necessary for the woman's health. We have heard this defence somewhere before, namely, in every justification for routine circumcision that has ever been attempted. “You may not like circumcision”, say the circumcision promoters, “but it is necessary for your future health; and if you refuse to accept it voluntarily, it must be imposed on you by force, for your own good.” There is no difference at all between Dr X’s defence here and the arguments put forward by circumcision promoters, both in Australia and overseas. They, too, “honestly believe” that removal of part of a boy’s genitals is necessary to save his life, and they they regard issues such as informed consent, medical ethics, human rights and personal preference as tedious humanistic scruples that merely get in the way of their knives. We wonder whether this doctor was as fond of circumcising male infants and boys as he was of performing mutilating operations on women, and if so, why one of these hobbies is regarded as a monstrous crime and the other as medical treatment.
Increasingly, however, it is recognised that the double standard that allows female genital mutilation to be condemned and punished but male circumcision to be tolerated and even promoted as “necessary for health” (as this Dr X claimed with respect to Ms DeWaegeneire) cannot be sustained. If it is wrong to remove a woman’s genitals without her fully informed consent, how can it be acceptable to remove part of a man’s genitals without his fully informed consent? In this age of sexual equality, this is one form of discrimination that cannot be allowed to continue.
NOTE: We find it strange and unfair that the name of the doctor has been suppressed, while his victim must face the glare of publicity. We do not know his name, and so cannot reveal it, but we suspect that entering the term “Butcher of Bega” into Google will bring up much relevant and interesting information about somebody who appears rather similar.