In early common law the crime of mayhem was committed by inflicting a wound that reduced a man's ability to fight. Women were not expected to fight and so one could not commit mayhem against them. The crime was committed against the king also in that he required the use of fighting men.
The loss of an ear or nose did not count because these do not affect the ability to fight; however the loss of a penis was deemed to be mayhem (which would seem to imply that rape is part of a soldier's duty).
With time the military angle faded out and mayhem is today regarded as injury to normal bodily functioning or disfigurement. Today one can commit mayhem against a woman. Castration is definitely an act of mayhem if it is committed maliciously.
Is transsexual surgery mayhem?
Sally Barry was approved for surgery in Wisconsin in 1948, but had her operation vetoed by the state attorney general’s office as it would constitute mayhem. She was also declined surgery in California in 1949 based on advice from that state’s attorney general’s office.
++In the early 1950s no British doctor would do an orchidectomy. Both Roberta Cowell and Dorothy Medway sought such. Roberta obtained hers from the about-to-qualify doctor Michael Dillon, and Dorothy went to the Netherlands.
++ In 1956 twelve New York physicians testified that Hedy Jo Star should have gender surgery but the New York State Medical Society refused permission because of the mayhem laws.
For a long time surgeons in the US declined to do transsexual surgery because of fear of being charged with mayhem. Elmer Belt, the pioneering US surgeon, preserved the testicles in trans women, pushing them into the abdomen, to preserve the hormones that they produced and to avoid such charges. Some patients got around this by doing a self-castration, or having a castration done in Europe, before going to Dr Belt. However no US surgeon was actually ever charged with mayhem.
Twice in Argentina, surgeons have been charged with mayhem after sex-change surgery. In 1966 a surgeon, Ricardo San Martin, was convicted of assault. The patient's consent was considered invalid because of 'his' low mental and emotional age and 'the fact that his neurotic craving for surgery made his consent involuntary'. In 1969 another Argentinian surgeon, Francisco Sefazio, was charged with aggravated assault but was acquitted on the technicality that all of the patients were actually ‘pseudohermaprodites’ and that he had clarified rather than changed their sex.
- Melvin M.Belli, JD. “Transsexual Surgery: a New Tort?”. Journal of the American Medical Association. May 19, 1978 Vol 239, # 20.
- Joanne Meyerowitz. How Sex Changed: A History of Transsexuality in the United States. Cambridge, Ma, London: Harvard University Press. 363 pp 2002: 120-1.
- Susan Stryker and Nikki Sullivan. “King’s Member, Queen’s Body: Transsexual Surgery, Self-Demand Amputation, and the Somatechnics of Sovereign Power”. Archive.
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