Lawsuits as Strategy

I resisted commenting on this story. I don’t think it’s worth our time as activists for several reasons. One, the petitioner, Dean Cochrun, is an inmate in prison for kidnapping. He’s not exactly a sympathetic individual, even though I agree with the gist of his claim. Two, He’s representing himself. He’s going to make a mess of this, on the off chance it proceeds beyond his initial filing. I read his self-written complaint to judge it. I’m not an attorney so I’m not sufficiently qualified in much of the debate. Still, it’s clear how unfocused and emotional his claim is, when there’s a legitimate approach based on objective facts about circumcision and the unethical disparate treatment of healthy boys and girls. We can do better.

There are some relevant topics to discuss, though, which are brought out in this report by Stephanie Rabiner, Esq. at FindLaw. (Again, the caveat applies that I’m addressing these concerns from a layman’s perspective.)

Can circumcision rob you of your, uh, “sexual prowess”?

A South Dakota man thinks so, which is why he has filed a federal circumcision lawsuit against the hospital where he was born. He claims he only recently learned of his missing foreskin, and that doctors misled his mother into believing the procedure was medically necessary.

This is a fair reading of the complaint, but I don’t think it’s complete to say the he claims doctors misled only his mother. Mr. Cochrun wrote “Unknown Doctor who performed this procedure had misled my mother by failing to inform her that there are no medically necessary reasons for performing this procedure and so by the Unknown Doctors acts or omissions I was permanently and irreversibly scarred and deformed.” In the next two sentences he wrote: “By doing so the Unknown Doctor infringed upon the rights of my mother, father, and self. My mother and father were unable to make an informed decision because they were not provided with the facts necessary.” He references both his parents. This speaks to my claim that his suit is unfocused and poorly structured.

His argument is also problematic because it implies that parents have a right to impose non-therapeutic genital cutting if they’re sufficiently informed. They don’t, partly because they can’t be. The only rights involved in non-therapeutic genital cutting, those that were violated, belong to Mr. Cochrun. That should be the approach for any lawsuit, even if arguing that parents are insufficiently informed of the harms and risks of circumcision is a path to the inevitable, eventual recognition of genital integrity for all children.

Ms. Rabiner’s analysis continues, after a bit of laughing because of his name (an immature aside suggesting she hasn’t quite applied a sufficient openness to the general claims represented within Mr. Cochrun’s suit):

Cochrun, 28, is currently in prison on a kidnapping conviction, according to the Associated Press. This may explain why he had both the time to file such a strange lawsuit and why he only recently became aware that he was lacking in the foreskin department.

Unnerved by this revelation, he now claims he “was robbed of sensitivity during sexual intercourse.” The circumcision lawsuit further states that he lost “the sense of security and well-being I am entitled to in my person.”

Whether or not Mr. Cochrun is truthful in his claim, I do not find it difficult to believe that someone would not know he is circumcised (or intact). It’s common, as demonstrated in studies and anecdotal reports. Culture is weird in many ways. Dismissing such a revelation because it contradicts an assumption suggests we should check the assumption.

But, to the analysis within her post (link in original):

This is all well and good — and a little sad, to be honest — but it’s almost certain that a judge will toss Dean Cochrun’s suit. Here’s why:

  1. Consent. Cochrun was an infant when he was snipped, which means his mother had the legal right to consent to the procedure. There’s no indication that doctors lied to her.
  2. Statute of limitations. Personal injury lawsuits can’t be filed 28 years after the events in question. Sure, some states may toll – or pause – the clock and only restart it when the victim first learns of the injury. But it’s highly unlikely Cochrun didn’t know he was circumcised.
  3. Lack of jurisdiction. Cochrun lives in South Dakota. The hospital he is suing is in South Dakota. He has filed a state law tort claim. He filed his circumcision lawsuit in federal court. Federal courts have no jurisdiction to hear his claim.
As to this third point, even if Dean Cochrun re-filed his circumcision lawsuit in state court, the first two points will still apply. His lawsuit will undoubtedly be cut short.

In reverse order… The last point is the key here, which I didn’t process on my first reading. (Give me an ‘F’ in Civil Procedure, I suppose.) But, yes, that’s the best defense of my request not to get behind this suit or make too much of it. But even if he refiled in a state court, my opinion doesn’t change.

On the second point, from the included link:

… A child or a person with a mental illness is regarded as being incapable of initiating a legal action on her own behalf. Therefore, the time limit will be tolled until some fixed time after the disability has been removed. For example, once a child reaches the age of majority, the counting of time will be resumed. …

If this South Dakota code is what would apply in state court and I read it correctly¹, the clock began on Mr. Cochrun’s 18th birthday and ran out on his 19th birthday. Arguing that this suit is faulty because he filed 28 years after his circumcision seems to be incorrect. It should be that he filed 9 years too late. For purposes here, I’m granting that Mr. Cochrun’s “[m]ere ignorance of the existence of a cause of action” did not toll the statute of limitations because “the facts could have been learned by inquiry or diligence”, even though I’ve already demonstrated that it’s possible he may not have known his circumcision status until recently. Whether or not it’s true, it could be. It deserves serious consideration, even if it doesn’t change the conclusion on Mr. Cochrun’s claim.

Speaking of what deserves serious consideration, the correct consent argument relevant to non-therapeutic child circumcision is not presented in Ms. Rabiner’s analysis. I have no doubt that she’s correct that the consent involved rests on legal rather than right. It’s also probably nuanced and complicated with a long history in the common law. But that’s what needs to change. It already has with respect to female minors, so the notion that parents have a right to surgically alter (i.e. harm) a healthy child, but only a male child, is odd and needs to be relegated to the past as a relic of flawed, inexcusable human thinking. If it’s a right, it’s a right against all healthy children, not just male children. Any continued defense of a discriminatory distinction as a parental right is a problematic continuation of our shallow, uncritical thinking on the harm of circumcision. Non-therapeutic genital cutting on a non-consenting individual is either wrong or it’s not.

The best way to achieve full protection of genital integrity and bodily autonomy is through cultural change. It’ll be the most likely to last. But that’s slow, and real individuals have their rights violated while that change develops. Thus, other methods are valid to achieve the same result. Next best is to have elected officials extend the protection we provide to everyone but male minors to male minors, as well. Given how likely that is(n’t), other options are necessary. Which leaves us with lawsuits. The courts are (hopefully) an impartial place to work out these issues to respect the rights of all individuals. Punishing those who violate the rights (and bodies) of children, even if punishment occurs only in civil court, will circle back as an incentive on cultural change. The idea of Mr. Cochrun’s lawsuit is spot on, even where it’s execution is misguided and flawed.

¹ Any lawyers who may read this, please don’t be afraid to correct me on this.

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