Time for the first FGM prosecution?

Neelam Sarkaria asks whether it is time for the first prosecution under the Female Genital Mutilation Act 2003

The making of an allegation of Female Genital Mutilation is affected by a number of factors, including cultural taboo and the reluctance to report the crime to the police, especially as other family members may be involved. This makes it even harder for the victim to come forward to report the crime and to make a statement. Criminal justice agencies are working closely together to raise awareness and to ensure that whenever cases are reported, they are thoroughly investigated. Support and protection is also offered to victims and witnesses throughout the criminal justice process. Educating communities to abandon the practice is considered the best way forward to break the cycle of mutilation.


The Law
The Female Genital Mutilation Act 2003 came into force on 3 March 2004 and repealed and replaced the Prohibition of Female Circumcision Act 1985. This legislation made it an offence for the first time for UK nationals, or permanent UK residents, to carry out female genital mutilation abroad, or to aid, abet, counsel or procure the carrying out of FGM, even in countries where the practice is legal. To reflect the serious harm that this practice causes, the 2003 Act also increased the maximum penalty from five to 14 years’ imprisonment. The 2003 Act is intended to help prevent FGM from happening in the first place.

What is Female Genital Mutilation?
FGM involves procedures which include the partial or total removal of the external female genitalia for cultural or other non-therapeutic reasons. The practice is medically unnecessary, is extremely painful and has serious health consequences, both at the time when the mutilation is carried out, and in later life.

Prosecutions
Despite the Female Genital Mutilation Act 2003 Act having been in force for eight years, there have been no prosecutions.

Key developments
There is cross-government commitment to addressing violence against women and girls. The Crown Prosecution Service (CPS) published its first Legal Guidance on FGM on 7 September 2011 to support prosecutors in understanding the sensitivities and complexities often involved in FGM offences, and to ensure that the CPS is able to prosecute every case of FGM that satisfies the evidential and public interest tests within the Code for Crown Prosecutors. The Director of Public Prosecutions also hosted a Roundtable Discussion on Female Genital Mutilation in September 2012. This saw more than 30 interested and expert parties come together to discuss the issues with identifying, investigating and potentially prosecuting such cases. A number of action points were suggested as a result of the meeting and this will now be taken forward. A new pocket guide on FGM, “A Declaration Against Female Genital Mutilation (FGM) for Families and Girls”, has recently been announced by the Home Office and will soon be made available to girls at risk to help them speak out against the practice.

The Association of Women Barristers will be hosting a joint evening seminar with the CPS on Female Genital Mutilation on 7 November 2012  at the Bar Council offices as part of their Women in the Criminal Justice System series of events. Felicity Gerry will be speaking under the title “FGM – Time for the first prosecution?”

Neelam Sarkaria, Head of the Criminal Justice Unit at the Crown Prosecution Service and Vice-Chair of the Association of Women Barristers.

Felicity Gerry explains the law on FGM

Female Genital Mutilation Act (FGMA) 2003 introduced the offence of female genital mutilation. Section 1 provides as follows:

1. Offence of female genital mutilation
(1) 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 under Section 2 to assist a girl (see footnote 1, below) to mutilate her own genitals. Section 3 provides that it is an offence for a person to aid, abet, counsel or procure a person who is not a United Kingdom national or permanent United Kingdom resident to do a relevant act of female genital mutilation outside the United Kingdom. These offences only apply if the relevant act of mutilation is done in relation to a United Kingdom national or permanent United Kingdom resident (see footnote 2). They are triable either way.

Defences
By sections 1(2) and 1(3) of the same Act, no offence is committed by an approved person who performs a surgical operation (regardless of whether it was believed the operation is required for the purpose of custom or ritual) (see footnote 3).
(a) Which is performed by a registered medical practitioner on a girl when it is necessary for her physical or mental health, or
(b) Which is performed by a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.

Mutilation committed abroad
By Section 4(1) any act done outside the United Kingdom by a United Kingdom nationa (see footnote 4) or permanent United Kingdom resident (see footnote 5) will constitute the offence of genital mutilation and the UK courts will have jurisdiction; and by section 3 FGMA 2003 it is an offence to assist a non-UK person to do a relevant act of female genital mutilation outside the UK. The defence for surgical operations by approved persons still applies by virtue of section 1(4) (see footnote 6).

Sentence
- 14 years' imprisonment on indictment or a fine or both.
- 6 months' imprisonment on summary conviction or a fine or both.

There are currently no ancillary orders which can be made as notification does not apply, and although it was possible to apply for a Sexual Offences Prevention Order for offences under the repealed Female Circumcision Act 1985 (see footnote 7), there appears to be no corresponding provision for the FGMA 2003. The Safeguarding Vulnerable Groups Act 2006 may apply should the Independent Barring Board be asked to bar the Defendant from working with children or other vulnerable people.

Recent news that the new constitution of Somalia prohibits female genital mutilation puts the issue at the forefront of international debate and makes it even more important that the courts of England and Wales be given the opportunity to test the legislation. There are all sorts of obstacles to creating a realistic prospect of conviction, 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, even Saudi Arabia sent women to the Olympics this year 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. These will be difficult trials but they are possible with a bit of will and a lot of effort. The new constitution of Somalia perhaps states the obvious: “Circumcision of girls is a cruel and degrading customary practice, and is tantamount to torture”. The issue is important enough to be a priority in our system which requires justice especially for the most vulnerable of children. FGM may never be a topic for a conversation over dinner but it is definitely time for the first prosecution.

Footnotes
1. Section 6(1) defines girl to include woman
2. Section 3(2) FGMA 2003
3. Section 1(5) FGMA 2003
4. By section 6(2) UK national is defined as a “British citizen, a British overseas territories citizen, a British National (Overseas) citizen, a person who under the British Nationality Act 1981 is a British subject, or a British protected person within the meaning of that Act”
5. By section 6(3) a permanent United Kingdom resident is defined as “an individual who is settled in the United Kingdom, within the meaning of the Immigration Act 1971”
6. Corresponding legislation was introduced in Scotland on the 1st of Sept 2005
7. Still listed at Sch 5, para 44 SOA 2003

Felicity Gerry, 36 Bedford Row, “Of Counsel” in the US and co-author of The Sexual Offences Handbook.

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