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Female genital mutilation – time for a prosecution

19 November 2012 4 Comments

Genital mutilation 150x150 Female genital mutilation – time for a prosecutionRex Features
By Felicity Gerry

There has been legislation in this country to criminalise female genital mutilation (FGM) for a long time and not one successful prosecution. The three cases referred to the CPS in the last two years had significant evidential difficulties and there was no realistic prospect of conviction.

The issue has been highlighted on Newsnight by some brave youngsters from Integrate Bristol. On the 7 November 2012, the association of women barristers (AWB) and the CPS held a joint seminar under the title “FGM – time for a prosecution”. Since then, tensions have reached the public arena with Bristol Somalis exchanging debate on Twitter as to whether or not this should be kept within the community or dealt with on a wider platform. In addition, concerns have been raised that local politicians are mixed in their support for public intervention. Let’s hope not. There have been messages of support for the AWB/CPS effort to highlight the issue from across the world. It seems that in the modern world, mutilation is still commonplace and some clinics are offering “designer vagina” treatment for children along with ear piercing. The procedure of cutting out a clitoris and/ or labia and reducing the size of the vaginal aperture is not decorative but a violent procedure that has appalling health and welfare issues for those affected.

  • FGM is practised by both African and non-African communities. Traditionally, it was believed that it preserved a girl’s virginity and was a prerequisite for marriage. Parents facilitated the mutilation on the idea that it would somehow purify their daughter and give her status. Some believe it is a religious requirement.
  • FGM can cause haemorrhaging, shock, chronic pain, recurrent urinary tract infections, cysts, menstrual problems and infertility. It also increases the risk of labour complications and newborn deaths.

In the past, slicing off the genitalia of girls has been low on the agenda of governments more concerned with commercial interests and remained a hidden issue for generations. Not so now. This is no longer seen as a difference in culture but as a procedure that has appalling health and welfare issues for those affected. At the AWB seminar, Dr Comfort Momoh, an FGM midwife and public health authority, described the appalling bladder, menstrual and psychological harm women and girls suffer having had their genital area altered and injured as babies and sometimes cut open on their wedding night.

In France and Holland analysis has been undertaken on the same issues. There have been some successful prosecutions in and around Paris, partly due to a high volume of mutilated women and girls and partly due to better reporting and invasive investigatory procedures. The situation has come under international scrutiny. In August 2012 the new constitution of Somalia prohibited female genital mutilation. This put the issue at the forefront of international debate. The new constitution of Somalia perhaps states the obvious: “Circumcision of girls is a cruel and degrading customary practice, and is tantamount to torture.”

On 17 October 2012, African member states of the UN submitted a draft resolution to the UN General Assembly on ending female genital mutilation. It urges states to “condemn all harmful practices that affect women and girls, in particular female genital mutilations… and to take all necessary measures, including enacting and enforcing legislation to prohibit female genital mutilations and to protect women and girls from this form of violence, and to end impunity”. The agenda item is headed “Advancement of women” and the title of the draft Resolution is “Intensifying global efforts for the elimination of female genital mutilations”. It invites the UN to recall all previous resolutions, conventions, platforms for action and protocols on the status and rights of women and to recall undertakings and commitments on ending female genital mutilations for the advancement of women. The draft resolution requests the Secretary General “to ensure that all relevant organizations and bodies for the United Nations system individually and collectively take into account the protection and promotion of the rights of women and girls against female genital mutilations in their country programmes, to submit to the General Assembly… an in-depth multidisciplinary report on the root causes and contributing factors on the practice of female genital mutilation, its prevalence worldwide, and its impact on women and girls, including with evidences and data, analysis of progress made to date and action oriented recommendations for eliminating this practice on the basis of information provided by member states and other relevant stakeholders”. A resolution is not legally enforceable but as Alvilda Jablonko, coordinator of the FGM programme of rights group No Peace Without Justice, said, if such data is available, a worldwide ban on FGM “would demonstrate the strong commitment of the international community to human rights and particularly the rights of women and girls, and be a real tool for change”.

Law in the UK

The Female Genital Mutilation Act was introduced in 2003 and came into effect in March 2004. A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris .It is also an offence to assist a woman or girl to mutilate her own genitals or to aid, abet, counsel or procure a person who is not a UK national or permanent UK resident to do a relevant act of female genital mutilation outside the UK. These offences only apply if the relevant act of mutilation is done in relation to a UK national or permanent UK resident so there are some limitations in relation to migrants.

The FGM legislation is international. Any act done outside the UK by a UK national or permanent UK resident will constitute the offence of genital mutilation and the UK courts will have jurisdiction. The maximum sentence is 14 years imprisonment.

According to the Home Office website: “In the UK, it is estimated that up to 24,000 girls under the age of 15 are at risk of female genital mutilation.”

  • An estimated 100 to 140 million girls and women worldwide are currently living with the consequences of FGM. It is mostly carried out on young girls between infancy and age 15 years.
  • In Africa an estimated 92 million girls from ten years of age and above have undergone FGM.

Multi-agency practice guidelines are available on the Home Office website. The document “seeks to provide advice and support to frontline professionals who have responsibilities to safeguard children and protect adults from the abuses associated with female genital mutilation (FGM). As it is unlikely that any single agency will be able to meet the multiple needs of someone affected by FGM, this document sets out a multi-agency response and strategies to encourage agencies to cooperate and work together”.

This guidance provides information on the following:

  • identifying when a girl (including an unborn girl) or young woman may be at risk of being subjected to FGM and responding appropriately to protect them;
  • identifying when a girl or young woman has been subjected to FGM and responding appropriately to support them; and measures that can be implemented to prevent and ultimately eradicate the practice of FGM.

The guidance asserts

FGM is a form of child abuse and violence against women and girls, and therefore should be dealt with as part of existing child and adult protection structures, policies and procedures. The guidance is intended for all frontline professionals and volunteers within agencies that work to safeguard children and young people from abuse and protect adults from abuse. This includes health professionals, police officers, social workers, and teachers

Policy

The Crown Prosecution Service has worked tirelessly to bring about change in law and policy in relation to violence against women and girls. In a relatively recent speech, the DPP, Kier Starmer QC welcomed improvements in prosecution statistics in relation to domestic violence and other offending where women are disproportionately the victim. He acknowledged however that, so far, there have been no prosecutions in relation to female genital mutilation and it is plain that there is real motivation to change that situation.

Evidence

Suspicions may arise from knowing that a family belongs to a community in which FGM is practised (Kenyans, Somalis, Sudanese, Sierra Leoneans, Egyptians, Nigerians and Eritreans and women from non-African communities including Yemeni, Kurdish, Indonesian and Pakistani women). A child may talk of going abroad and a “special procedure/ceremony” that is going to take place. There may be a prolonged absence from school. The child might exhibit bladder or menstrual problems, find it difficult to sit still, appear uncomfortable or complain of pain between their legs. In reality, the complexities of the collection of evidence in such cases mean that this is an inevitably slow process. Gathering sufficient evidence to create a realistic prospect of conviction in cases of female genital mutilation is a sensitive task. There are all sorts of obstacles from identifying a victim, securing a medical examination and then persuading witnesses to divulge who was responsible. The issues are culturally sensitive and in various communities those investigating will have to act sensitively to achieve cooperation and trust. Still, as I said in Counsel magazine in October, even Saudi Arabia sent women to the Olympics this year and Riyadh is apparently the 10th busiest city for tweeting so women’s issues are very much on the international agenda in places where one might never have expected progress.

Principles of fairness entrenched in our system of justice should enable suspects to be fairly tried even if it becomes necessary to rely on evidence of frightened or absent witnesses. In a recent case involving rape of a six-year-old child, I called evidence from the child without calling the child, where there was ample other evidence. FGM is one of the situations where the hearsay provisions could be of real use in relation to young or frightened children. Where there is medical evidence of FGM the issue is likely to be identification of those adults involved. Investigators will need to have regard to obtaining telephone, computer, Facebook and flight details. Proof in such cases rarely depends on the direct evidence of injury but on all the surrounding evidence. Making proper disclosure will be vital as there are bound to be vested interests amongst witnesses to lie or target the innocent. Defence expert evidence can be assisted by DVD recordings and agreement on medical findings and early analysis of any computer or telephone evidence (for example) will be vital. In international cases, cooperation will be key, as will proper interpretation.

Conclusion

States can ask for resolutions but sometimes the best message is the publicity that follows a criminal trial. These will be difficult trials but they are possible with a bit of will and a lot of effort. Frontline professionals need to be aware of what to look for and how to report concerns. Victims or those at risk need to know how to safely complain and that such complaints will be followed up. Wherever the first prosecution is brought, those investigating will have to act sensitively to achieve cooperation and trust which can be difficult when investigating why a family might be going on “holiday”.

Education is the key and that is why the Integrate Bristol project has been so successful. It may be that Bristol is in fact one of the safer communities and we should be following their example but, if twitter is anything to go by, even there tensions are high.

The issue is important enough to be a priority in a system which requires justice especially for the most vulnerable of children. The economic benefits of an un-mutilated workforce cannot be underestimated. It follows that it is time for the first FGM prosecution.

* A shorter version of this article appeared in The Guardian last week

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