Circ Wars

Another round in the 'circ wars' coming up, with release of the Tasmanian Law Reform Institute's final report [PDF] on non-therapeutic circumcision.

The report offers 14 recommendations -

1 The Institute supports the enactment of legislation to reform the law governing circumcision. 

2 The Institute recommends reform to provide a clear legislative basis for the legality of circumcision performed at the request of an adult or capable minor. 

3 The Institute recommends the enactment of a new and separate offence generally prohibiting the circumcision of incapable minors in Tasmania. The new legislation ought to create an exception for the performance of some well-established religious or ethnicity motivated circumcision on incapable minors. 

4 The Institute recommends the enactment of legislation to require joint parental authorisation for the circumcision of an incapable minor. 

5 The Institute recommends the enactment of a law to require court authorisation for a circumcision whenever parents disagree about the desirability of performing a circumcision. 

6 The Institute does not recommend the enactment of legislation mandating court authorisation for the circumcision of minors. 

7 The Institute recommends the enactment of a law to require that all circumcisers provide accurate information as to:

• the financial cost of the procedure; 

• the non-therapeutic nature of the operation; 

• the purpose and function of the foreskin; 

• the procedure itself; 

• the procedure’s effect on the functioning of the penis; 

• the risks of the procedure; 

• the nature and significance of the evidenced prophylactic benefits of circumcision in an Australian context; 

• the potential for children to grow up into adults who resent their circumcision (this may include a discussion of the common rationales and prevalence of circumcision); 

• the availability of the procedure in adulthood; and • the legality of the procedure.

8 The Institute recommends that health policy, community and industry leaders use non-legislative avenues of reform to improve the dissemination of accurate information on the known and potential effects and significance of circumcision. 

9 The Institute recommends the enactment of a criminal law that sets general principles against which to judge the acceptability of a circumciser’s practice. These principles should set minimum standards that all circumcisers of incapable minors must meet in the provision of their service. Parliament should give an existing health regulatory body the responsibility of formulating regulations to qualify the general standards set in statute. The Institute recommends the setting of standards as to matters such as:

• the pain relief provided; 

• the instruments used; 

• the skill of the person performing the operation; 

• the skill with which the procedure is performed; 

• the adequacy of the wound care and post-procedure monitoring. 

The standards set by statute and in regulations ought to reflect the minimum standards the community would expect circumcisers to meet at the time of the operation in the circumstance in which they are operating. In particular, the standards should ensure that no minor be put at a needlessly high risk of pain or complication from a circumcision. 

10 The Institute recommends further investigation into whether the law governing the use and sale of human tissue would benefit from reform. 

11 The Institute does not recommend reform to the law regulating the commercial aspects of a circumciser’s service. 

12 The Institute recommends the enactment of reform to create a uniform period in which individuals harmed by a circumcision as a minor may bring an action against their circumciser. This period should extend for an appropriate time after the harmed person has reached the age of majority. This new limitation period should be enacted in a provision in a new Circumcision Act. 

13 The Institute recommends the enactment of legislation to require circumcisers to transmit information relevant to actions that may be brought for harm they cause to a minor to an appropriate government authority. 

14 The Institute does not recommend the enactment of a no-fault compensation scheme for harm caused by a circumcision performed upon an incapable minor.

The report follows the more problematical 2007 ‘First Do No Harm’ the Liability of Medical Practitioners Performing Non- therapeutic Male Circumcision on Minors in Tasmania Discussion Paper by the Tasmanian Office of the Commissioner for Children and the Institute's 2009 Non-Therapeutic Male Circumcision issues paper. As I've elsewhere commented, non-therapeutic circumcision poses interesting legal philosophical and regulatory problems because of tensions between perceived injury to minors and respect for the deeply-held values of particular communities.

The Institute's 2009 issues paper asked eight questions - (

1. Do you think the criminal law relating to non-therapeutic circumcision requires clarification? 

2. Under what circumstances do you think a non-therapeutic circumcision should be lawful (under the criminal law)? 

3. Do you think the law relating to the authorisation of non-therapeutic circumcision requires clarification? 

4. Under what circumstances should a parent be able to legally authorise the circumcision of their child? 

5. Should the authorisation of a court, or some other form of independent body, be required to legally perform a circumcision in some, or in all, circumstances? 

6. Should the law clearly establish that medically qualified and non-medically qualified circumcisers have the same legal duties in the provision of their service? 

7. Should the law set specific duties for circumcisers in the provision of their service? 

8. Should there be a special limitation period for civil law actions brought by an adult for a circumcision performed on them as a minor?

It was released after consultation with members of Tasmania’s Jewish, Muslim and health communities. The paper

took no position on the appropriateness of non-therapeutic male circumcision from a medical, religious or ethical viewpoint. 

It found that there has not been significant legal action relating to, or legislative regulation of, male circumcision in Tasmania. The Institute also found that there is a dearth of current, thorough and reliable commentary on the application of the law to circumcision in Australia. The Institute concluded that uncertainties abound in the application of Tasmanian law to circumcision.

Copyright Reform

The ALRC has released its important and thoughtful discussion paper on Copyright and the Digital Economy.

The paper features 55 questions, with the ALRC seeking responses by 16 November.

The questions are as follows -

1. The ALRC is interested in evidence of how Australia’s copyright law is affecting participation in the digital economy. For example, is there evidence about how copyright law: affects the ability of creators to earn a living, including through access to new revenue streams and new digital goods and services; affects the introduction of new or innovative business models; imposes unnecessary costs or inefficiencies on creators or those wanting to access or make use of copyright material; or places Australia at a competitive disadvantage internationally. 

2. What guiding principles would best inform the ALRC’s approach to the Inquiry and, in particular, help it to evaluate whether exceptions and statutory licences in the Copyright Act 1968 (Cth) are adequate and appropriate in the digital environment or new exceptions are desirable?  

3. What kinds of internet-related functions, for example caching and indexing, are being impeded by Australia’s copyright law? 

4. Should the Copyright Act 1968 (Cth) be amended to provide for one or more exceptions for the use of copyright material for caching, indexing or other uses related to the functioning of the internet? If so, how should such exceptions be framed? 

5. Is Australian copyright law impeding the development or delivery of cloud computing services? 

6. Should exceptions in the Copyright Act 1968 (Cth) be amended, or new exceptions created, to account for new cloud computing services, and if so, how? 

7. Should the copying of legally acquired copyright material, including broadcast material, for private and domestic use be more freely permitted? 

8. The format shifting exceptions in the Copyright Act 1968 (Cth) allow users to make copies of certain copyright material, in a new (eg, electronic) form, for their own private or domestic use. Should these exceptions be amended, and if so, how? For example, should the exceptions cover the copying of other types of copyright material, such as digital film content (digital-to-digital)? Should the four separate exceptions be replaced with a single format shifting exception, with common restrictions? 

9. The time shifting exception in s 111 of the Copyright Act 1968 (Cth) allows users to record copies of free-to-air broadcast material for their own private or domestic use, so they may watch or listen to the material at a more convenient time. Should this exception be amended, and if so, how? For example: should it matter who makes the recording, if the recording is only for private or domestic use; and should the exception apply to content made available using the internet or internet protocol television? 

10. Should the Copyright Act 1968 (Cth) be amended to clarify that making copies of copyright material for the purpose of back-up or data recovery does not infringe copyright, and if so, how? 

11. How are copyright materials being used for social, private or domestic purposes—for example, in social networking contexts? 

12. Should some online uses of copyright materials for social, private or domestic purposes be more freely permitted? Should the Copyright Act 1968 (Cth) be amended to provide that such use of copyright materials does not constitute an infringement of copyright? If so, how should such an exception be framed? 

13. How should any exception for online use of copyright materials for social, private or domestic purposes be confined? For example, should the exception apply only to (a) non-commercial use; or (b) use that does not conflict with normal exploitation of the copyright material and does not unreasonably prejudice the legitimate interests of the owner of the copyright? 

14. How are copyright materials being used in transformative and collaborative ways—for example, in ‘sampling’, ‘remixes’ and ‘mashups’. For what purposes—for example, commercial purposes, in creating cultural works or as individual self-expression? 

15. Should the use of copyright materials in transformative uses be more freely permitted? Should the Copyright Act 1968 (Cth) be amended to provide that transformative use does not constitute an infringement of copyright? If so, how should such an exception be framed? 

16. How should transformative use be defined for the purposes of any exception? For example, should any use of a publicly available work in the creation of a new work be considered transformative? 

17. Should a transformative use exception apply only to: (a) non-commercial use; or (b) use that does not conflict with a normal exploitation of the copyright material and does not unreasonably prejudice the legitimate interests of the owner of the copyright? 

18. The Copyright Act 1968 (Cth) provides authors with three ‘moral rights’: a right of attribution; a right against false attribution; and a right of integrity. What amendments to provisions of the Act dealing with moral rights may be desirable to respond to new exceptions allowing transformative or collaborative uses of copyright material? 

19. What kinds of practices occurring in the digital environment are being impeded by the current libraries and archives exceptions? 

20. Is s 200AB of the Copyright Act 1968 (Cth) working adequately and appropriately for libraries and archives in Australia? If not, what are the problems with its current operation?   

21. Should the Copyright Act 1968 (Cth) be amended to allow greater digitisation and communication of works by public and cultural institutions? If so, what amendments are needed? 

22. What copyright issues may arise from the digitisation of Indigenous works by libraries and archives? 

23. How does the legal treatment of orphan works affect the use, access to and dissemination of copyright works in Australia? 

24. Should the Copyright Act 1968 (Cth) be amended to create a new exception or collective licensing scheme for use of orphan works? How should such an exception or collective licensing scheme be framed? 

25. Are uses of data and text mining tools being impeded by the Copyright Act 1968 (Cth)? What evidence, if any, is there of the value of data mining to the digital economy? 

26. Should the Copyright Act 1968 (Cth) be amended to provide for an exception for the use of copyright material for text, data mining and other analytical software? If so, how should this exception be framed? 

27. Are there any alternative solutions that could support the growth of text and data mining technologies and access to them? 

28. Is the statutory licensing scheme concerning the copying and communication of broadcasts by educational and other institutions in pt VA of the Copyright Act 1968 (Cth) adequate and appropriate in the digital environment? If not, how should it be changed? For example, should the use of copyright material by educational institutions be more freely permitted in the digital environment? 

29. Is the statutory licensing scheme concerning the reproduction and communication of works and periodical articles by educational and other institutions in pt VB of the Copyright Act 1968 (Cth) adequate and appropriate in the digital environment? If not, how should it be changed? 

30. Should any uses of copyright material now covered by the statutory licensing schemes in pts VA and VB of the Copyright Act 1968 (Cth) be instead covered by a free-use exception? For example, should a wider range of uses of internet material by educational institutions be covered by a free-use exception? Alternatively, should these schemes be extended, so that educational institutions pay licence fees for a wider range of uses of copyright material? 

31. Should the exceptions in the Copyright Act 1968 (Cth) concerning use of copyright material by educational institutions, including the statutory licensing schemes in pts VA and VB and the free-use exception in s 200AB, be otherwise amended in response to the digital environment, and if so, how? 

32. Is the statutory licensing scheme concerning the use of copyright material for the Crown in div 2 of pt VII of the Copyright Act 1968 (Cth) adequate and appropriate in the digital environment? If not, how should it be changed? 

33. How does the Copyright Act 1968 (Cth) affect government obligations to comply with other regulatory requirements (such as disclosure laws)? 

34. Should there be an exception in the Copyright Act 1968 (Cth) to allow certain public uses of copyright material deposited or registered in accordance with statutory obligations under Commonwealth or state law, outside the operation of the statutory licence in s 183? 

35. Should the retransmission of free-to-air broadcasts continue to be allowed without the permission or remuneration of the broadcaster, and if so, in what circumstances? 

36 Should the statutory licensing scheme for the retransmission of free-to-air broadcasts apply in relation to retransmission over the internet, and if so, subject to what conditions—for example, in relation to geoblocking? 

37. Does the application of the statutory licensing scheme for the retransmission of free-to-air broadcasts to internet protocol television (IPTV) need to be clarified, and if so, how? 

38. Is this Inquiry the appropriate forum for considering these questions, which raise significant communications and competition policy issues? 

39. What implications for copyright law reform arise from recommendations of the Convergence Review? 

40. What opportunities does the digital economy present for improving the operation of statutory licensing systems and access to content? 

41. How can the Copyright Act 1968 (Cth) be amended to make the statutory licensing schemes operate more effectively in the digital environment—to better facilitate access to copyright material and to give rights holders fair remuneration? 

42. Should the Copyright Act 1968 (Cth) be amended to provide for any new statutory licensing schemes, and if so, how? 

43. Should any of the statutory licensing schemes be simplified or consolidated, perhaps in light of media convergence, and if so, how? Are any of the statutory licensing schemes no longer necessary because, for example, new technology enables rights holders to contract directly with users? 

44. Should any uses of copyright material now covered by a statutory licence instead be covered by a free-use exception? 

45. The Copyright Act 1968 (Cth) provides fair dealing exceptions for the purposes of: research or study; criticism or review; parody or satire; reporting news; and a legal practitioner, registered patent attorney or registered trade marks attorney giving professional advice. What problems, if any, are there with any of these fair dealing exceptions in the digital environment? 

46. How could the fair dealing exceptions be usefully simplified? 

47. Should the Copyright Act 1968 (Cth) provide for any other specific fair dealing exceptions? For example, should there be a fair dealing exception for the purpose of quotation, and if so, how should it apply? 

48. What problems, if any, are there with the operation of the other exceptions in the digital environment? If so, how should they be amended? 

49. Should any specific exceptions be removed from the Copyright Act 1968 (Cth)? 

50. Should any other specific exceptions be introduced to the Copyright Act 1968 (Cth)? 

51. How can the free-use exceptions in the Copyright Act 1968 (Cth) be simplified and better structured? 

52. Should the Copyright Act 1968 (Cth) be amended to include a broad, flexible exception? If so, how should this exception be framed? For example, should such an exception be based on ‘fairness’, ‘reasonableness’ or something else? 

53. Should such a new exception replace all or some existing exceptions or should it be in addition to existing exceptions? 

54. Should agreements which purport to exclude or limit existing or any proposed new copyright exceptions be enforceable? 

55. Should the Copyright Act 1968 (Cth) be amended to prevent contracting out of copyright exceptions, and if so, which exceptions?

Breathwork

One of the zanier ideas embraced by some legal theorists is holotropic breathwork, with people supposedly 'connecting' with their 'past lives' or with the 'consciousness' of inanimate objects if they modify their breathing.

A hoary old cynic such as myself would note that if you stop breathing long enough you are dead, but that is apparently not a problem for enthusiasts who espouse the notion that dead are still alive, just "not in a familiar form" ... a notion that collides very uncomfortably with Australian evidence law. The ghost, rather than the butler, did it?

There is of course another breathwork, that practiced by some aficionados of S&M. 'Asking for it: Erotic Asphyxiation and the Limitations of Sexual Consent' [PDF] by Ingrid Olson in 4(1) JGLR (2012) 171-200 comments that -

The contentious practices of the sadomasochism (S/m) community provide a template for investigating consensual sexual practices that are often deemed excessive. A recent Supreme Court of Canada (SCOC) decision convicted the defendant in an assault case regarding sexual activity performed during a sex partner’s brief loss of consciousness due to consensual erotic asphyxiation. The SCOC cited law that requires continual consciousness for sexual consent and rejected the defendant’s argument of prior consent. That is, despite prior consent for sexual activities the SCOC ruled on the legal parameters of sexual autonomy. Several contemporary court decisions regarding S/m practices in England and Canada have placed legal limitations on the permissible level of sexual consent, and subsequently, one’s sexual autonomy. Legal parameters on sexual practices often conflict with the contemporary community standards of sexuality. This article argues that the autonomy to consent to the sexual practices one desires should not be limited by consciousness. There is a new sexual movement underway, fuelled by the discourses of feminist, sexuality, and queer theorists that seek to shift anti-porn and sexual assault dialogues to a positive project of sexual empowerment and queer sexualities. It is a call for sexual agency, the autonomy to negotiate sexual boundaries and pursue one’s sexual desires. This sexual liberation movement desires a revaluation of sexual values, and the right to say ‘yes’. Sexual autonomy, borne from negotiation and enthusiastic consent, is a re-imagination of the term ‘asking for it’.

Olson states that -

In a May 27 2011 Supreme Court of Canada (SCOC) decision, the defendant in an assault case, R. v. J.A., was convicted regarding sexual activity performed during a sex partner‘s brief loss of physical consciousness. The brief loss of consciousness occurred during breath play, or erotic asphyxiation, which involved a tempered amount of manual choking9 during a consensual sadomasochism scenario. The SCOC cited law that requires continual consciousness for sexual consent and rejected the defendant‘s argument of prior consent. That is, despite consent prior to specific sexual activities, the SCOC ruled on the legal parameters of sexual autonomy. 

The upheld conviction of the J.A. case in Canada comes almost two decades after a group of sadomasochism (S/m) practitioners in England had their convictions upheld on charges of assault causing bodily harm despite claims of consent. Both cases involved relationships of consensual S/m, that took place in private homes and did not require medical attention. Nor were the police summoned during or immediately following their S/m activities. Neither case received police attention until well after the events with which the defendants were charged. Our sexual relationships are perhaps our most intimate ones. I suggest that sexual intimacy is an integral part of human life; most persons desire some form of sexual relationship, regardless of their placement in the plethora of diverse demographic classifications. Human sexuality denotes physically intimate activities that often involve touching other persons, caressing, kissing, and engaging in various sexual practices for the purpose of sexual pleasure. Furthermore, this level of intimacy has the capacity to create an emotional or spiritual bond between persons. Sexual consent is constitutive of sexual agency. It is the negotiation of intentional sexual activity and should not be limited by the loss of physical consciousness where prior consent exists. 

This article addresses the most intimate level of safety: the negotiation, trust and consent between persons within the context of sexual relationships. Specifically, I address the linkage between consciousness and consent in the SCOC judgement in the R. v. J.A. decision and argue that sexual autonomy means that consent does not cease with loss of consciousness. Several contemporary court decisions regarding S/m practices in England and Canada have placed legal limitations on the permissible level of sexual consent and, subsequently, one‘s sexual autonomy. Legal parameters on sexual practices conflict with contemporary discourses of feminist and sexuality movements seeking to shift anti-pornography and sexual assault dialogues to a positive project of sexual empowerment. This article interrogates the restriction of sexual consent based on legal decisions of S/m practices and argues that the impact of these laws negatively effect sexual autonomy. 

There are three legal cases regarding sadomasochism that I examine here. They are, in both chronological order and their order of appearance in this article, the 1993, England, House of Lords R. v. Brown (sadomasochism) assault case. Second, the 2004 British Columbia (Canada) provincial court, R. v. Price (pornography) obscenity case. My explanation of the British Columbia R. v. Price case includes an abbreviated explanation of Canada‘s obscenity law, generally referred  to in Canada as the ‘Butler decision‘. This explanation is included because it is a vital part of the contemporary community standard of sexuality for which I argue. Third, the 2011, SCOC, R. v. J.A. (sadomasochism) assault case that centred on the issue of sexual activity following loss of consciousness. I examine these three cases together because they represent significant legal decisions on S/m practices in the contemporary secular, industrialised West. These cases also work together in highlighting the distinction of the public/ private divide and how legal decisions of S/m are influenced, or not, by contemporary S/m practices and the community standard of sexualities and tolerance. What I argue through these three separate legal decisions is that what the court understood and applied correctly in R. v. Price and what the courts failed to recognise in the Spanner and J.A. cases, is the contemporary community standard of tolerance regarding sexuality and the significance of autonomy and self-determination in adjudicating sexual consent.

'Affirmative Sexual Consent in Canadian Law, Jurisprudence, and Legal Theory' by Lucinda Vandervort in 23(2) Columbia Journal of Gender and Law (2012) meanwhile

examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions.