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The Apparent Inadequacy of Female Genital Mutilation (FGM) Law

About The Author

Jessica Johnson (Criminal Editor)

Jessica is currently undertaking a study year abroad at the University of Copenhagen, Denmark, studying modules such as Law and Literature, The Law of Armed Conflict, and EU Development Law. She aspires to be a solicitor and is currently interested in personal law, specifically criminal and tort.

The UK prides itself on its robust and unforgiving attitude towards violence and discrimination within all areas of society. Nevertheless, an attitude alone is not enough to fashion real change. On July 22nd, London hosted the first global ‘Girl Summit’, in which world leaders were invited to discuss actionable solutions to female genital mutilation (FGM) and forced marriage.

Speaking at the summit, David Cameron stated that the solution is a simple but effective one:

Outlaw the practices of female genital mutilation, and childhood and early forced marriage, to outlaw them everywhere for everyone within this generation.

Perhaps this is easier said than done. The World Health Organisation (WHO) defines FGM as "All procedures that involve partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons." Nauseatingly common in Sub-Saharan Africa, and various regions of Asia and the Middle East, justifications for such an offence are as follows: custom and tradition, religion, the preservation of virginity, social acceptance, and increased male sexual pleasure. WHO estimates that these justifications have been used to impose FGM on 100-140 million young girls worldwide, typically without their consent or understanding. Such modern-day barbarism would ordinarily be associated with a tough and unforgiving law. This is not, as of yet, apparent in the English legal system.

Laws against FGM

The first legislative attempt to prohibit FGM was the Prohibition of Female Circumcision Act 1985, making it an offence ‘to excise, infibulate or otherwise mutilate the whole or any part of the labia majora or labia minora or clitoris of another person’, or to assist in such an act. The maximum punishment attached was five-years’ imprisonment; however, no successful prosecutions followed.

The law was reformed by the Female Genital Mutilation Act 2003, increasing the maximum sentence to 14-years’ imprisonment. Importantly, s.3 of the Act extended the law to FGM committed abroad to a UK national or permanent UK resident. This was to address the issue of girls being taken abroad to undertake the procedure. This piece of legislation proved just as ineffective as the one it replaced, suggesting it was intended as more of a political statement or deterrent, rather than a form of actionable enforcement.

Eleven years on, and the CPS have finally announced its first prosecution against Dr Dhanusan Dharmasena and Hasan Mohammed, for both committing and encouraging FGM respectively. Previous cases have always been dropped due to ‘insufficient evidence’; this will be the first opportunity for the law to effectively demonstrate its position and illustrate how it is to be interpreted.

Astonishingly, a 2007 statistical study by FORWARD estimated that ‘that nearly 66,000 women with FGM were living in England and Wales in 2001 and their numbers are likely to have increased since then.’ This quite frankly appalling ratio of 66,000 victims to 1 prosecution hardly encourages public confidence in the English legal system.

The Home Office stated in a 2014 report that:

The main reason why the CPS has struggled to achieve a prosecution until this year is because there have been very few investigations by the police. For example, between 2010 and 2013, the Metropolitan Police recorded just 20 referrals made to it as an FGM crime. The police and others told us two factors contributed to the small number of investigations —a reliance on victims or witnesses to report to the police, which they are unlikely to do, and the failure of health, education and social care professionals to refer cases to the police where they suspect FGM to have taken place.

I therefore seek to demonstrate that legislation is effectively useless without support and assistance from the following factors: public awareness and understanding, adequate professional training, and the additional fulfillment of international obligations.

Public awareness and understanding

FGM is the ‘perfect storm of taboo subjects’, as it is concerned with issues of ‘sexual violence, sexual liberty, and race.’ Consequently, there is a public reluctance to engage in relevant discussion. If the public feel unable to openly discuss it, this will undoubtedly transfer onto the victim. A victim’s ability to approach the authorities, and even testify in court, will be essential to a successful prosecution.

Efforts are already underway to address this issue. One of the key justifications for FGM is religious doctrine. A victim who believes that FGM is an indispensable part of their religion and community is unlikely to protest against it. However, in June 2014, religious and community leaders signed a declaration condemning ‘the unacceptable practice of female genital mutilation.’ Those wishing to condemn the practice included representatives from the International Relief Foundation, and the Muslim Women’s Network UK. Both the public and the victim must understand that the practice is not at all justified on the basis of religious doctrine; this is a misconception that must be quashed.

Speaking at the Girl Summit, Malala Yousafzai, a Pakistani schoolgirl who was shot by the Taliban for pursuing her education, captured this point perfectly:

We should have the right to change traditions and we should make the changes. We ask that there be no more FGM or child marriage. We should not be followers of traditions that go against human rights... we are human beings and we make traditions.

Professional training

The lack of awareness and understanding does not lie purely amongstthe general public. A 2013 report by the Royal Colleges of Midwives, Nursing and Obstetricians and Gynaecologists, entitled ‘Tackling FGM in the UK: Intercollegiate recommendations for identifying, recording and reporting’, outlines issues prevalent in the health care system. It is apparent that health care professionals have been known to turn a blind eye when they suspect FGM, due to an unwillingness to interfere in cultural matters. The report makes various recommendations to secure successful prosecution, including: improved documenting and collecting of evidence, thesystematic sharing of evidence, identifying and referring potential victims, the implementation of an awareness campaign, and holding frontline professionals accountable for failure to comply with the recommendations. A system similar to other EU member states is advised. For example, France has ‘responded with systematic screening of girls under six years of age, through annual physical examinations.’ Critics could argue that this is exceedingly invasive for girls of such a young age. However, it is far less abusive than the treatment it seeks to prevent. Since France has made more than 100 successful prosecutions, the UK could be wise to consider such action.

Other professionals who must be adequately prepared to identify and deal with potential FGM victims include teachers. In April 2014, Michael Gove, former Education Secretary, wrote to all head-teachers and issued guidance concerning FGM. This includes increased awareness of factors which could heighten the risk of FGM, indications that a child may already have been subject to FGM, and the statutory safeguarding duties of teachers to address FGM. These statutory safeguarding duties include school staff liaising with ‘other services such as children’s social care’, undertaking ‘appropriate child protection training’, and should ‘maintain an attitude of “it could happen here” where safeguarding is concerned'.

Efforts are also underway to better train the police when dealing with FGM cases. It was announced at the Girl Summit that the Government will issue 'new police guidance from the College of Policing and an inspection programme by Her Majesty’s Inspectorate of Constabulary (HMIC) that will look at how the police handle cases of FGM'. Such efforts will surely ensure more investigations and arrests are made in the area, thus increasing the likelihood of a successful prosecution.

International obligations

Nevertheless, the issue of families taking their daughters abroad for the procedure, in order to escape the flimsy grasp of the law, is as prevalent as ever. As referred to earlier, s.3 of the Female Genital Mutilation Act 2003 states that the victim must be ‘a United Kingdom national or permanent United Kingdom resident.’There is evidently a loophole for a victim not legally classified as a national or permanent UK resident. Perhaps the victim had only recently moved to the UK with her family. The English legal system would not be obligated to defend her from this sickening crime, and this is quite frankly disgraceful.

Thankfully, the Bar Human Rights Committee (BHRC) has brought this fundamental legislative failure to the attention of Government, alongside the support of the Home Office.

This gap in the law not only fails to reflect the highly mobile nature of the affected communities, but is morally indefensible. This loophole in the law must be closed.

The Government announced in the June 2014 Queen’s Speech that it intends to extend the scope of the 2003 extra-territorial offence to those who are merely ‘habitually resident’ in England and Wales. This is to accommodate those victims with only temporary residence status, such as students and refugees. Such efforts demonstrate the Government’s ever-emerging attitude to tackle FGM as a whole.

However, it must not be forgotten that a purely punitive approach is insufficient. In addition to violating any moral responsibilities, an over-reliance on legal prohibition does in fact infringe the UK’s international legal obligations.The BHRC has recently submitted that the UK is in breach of the UN Convention on the Elimination of All Forms of Discrimination Against Women, the UN Convention on the Rights of the Child, the International Covenant on Civil and Political Rights and the European Convention on Human Rights by failing to adequatelyprotect girls from FGM.

The UK’s obligations under international law require it to do more than simply prohibit FGM in law; it is obligated to take positive public policy action to eliminate FGM.

A key recommendation made by the BHRC is the use of civil protection measures. This would eradicate the necessity for vulnerable young girls to testify against family members, which is a key downfall of the current criminal procedure. Such measures could include specific civil injunctive orders, such as those found within the Forced Marriage (Civil Protection) Act 2007. The additional protection this could offer vulnerable girls is invaluable, as they could prevent FGM from occurring in the first place, as opposed to just dealing with the matter post-procedure. Purely punishing the offender will never restore the victim’s mental and physical wellbeing.

The Punitive Downfall

Even if the 2014 prosecutions were to be successful, this alone will by no means lead to the ultimate eradication of FGM. In their 2008 report, “Eliminating Female Genital Mutilation: An Interagency Statement”, The World Health Organisation stated that:

The effectiveness of any law depends, however, on the extent to which it is linked to the broader process of social change… imposing sanctions alone runs the risk of driving the practice underground and having a very limited impact on behavior.

The process of FGM runs enough risks, both physical and psychological, as it is. Having the girls taken abroad without the UK authorities’ knowledge will only enhance this danger.

There are of course safer, and arguably more effective, alternatives to a purely punitive approach, such as the BHRC’s recommendation of civil protection measures. Protection measures have already proven invaluable in cases of forced marriage, and there is no reason why they would not work equally as well here. Writing for the New Statesman, barristers Dexter Dias QC and Charlotte Proudman propose the setting up of an Anti-FGM Unit. This would entail a “Government-run centre providing expertise and a helpline for at-risk young women and frontline professionals”. Allowing potential victims to feel safe and supported when seeking help is, and should always be, the number one priority.

Conclusion

A law which relies almost exclusively on vulnerable girls speaking out against their family and community was never going to be wholly successful. Nonetheless, the Prohibition of Female Circumcision Act 1985 and the Female Genital Mutilation Act 2003 are powerful stepping stones to abolishing the procedure in the UK once and for all. The government must now ensure that the victims feel secure and supported in pursuing this goal. The £1.4 million FGM Prevention Programme 'launched in partnership with NHS England to help care for survivors and safeguard those at risk' at the Girls Summit, demonstrated the Government’s commitment to this issue. Assuming this pledge remains, the outrageous number of FGM victims will surely decline. All we need now is a successful prosecution.

If you wish to pledge to end FGM, or read further details about the summit, please visit http://www.girlsummitpledge.com/ 

Thanks to Dexter Dias QC for comments.

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Tagged: Family Law, International Law, Medical Law & Ethics, Religion

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