In several countries, but not all, FGM is illegal independently on whether a girl or woman consents to it.
Members agreed that issues of consent and women’s autonomy over their bodies is a hotly contested legal debate; with communities and pro-FGM activists citing that women have the right to consent to cultural obligations affecting them. Members stressed the need to differentiate between minor girls and adult women when discussing content and FGM.
In Kenya, in the Kisii County in the Western region, a number of women and girls have been arrested for « willingly » undergoing FGM “to mitigate stigmatization from their community for being uncut as most of them are not allowed to till the land, fetch water from the river, or join other women in the marketplace, and ultimately declared marriageable”.
Some stressed the need to « differentiate between adult women and minor girls when we are discussing the issue of consent and FGM. (…) minor girls are too young to make their own decisions and are unable to give their free, informed and meaningful consent to FGM.
However, the question then remains: « Can adult women consent to FGM? »
In Kenya, a female physician has filed a case at the Machakos High Court seeking to have FGM legalized for adult women who – to her mind – should have the right to freely choose FGM. She claims that the legal ban on FGM in Kenya is unconstitutional and argues that adult women should have the freedom to consent to the practice and have the right to be cut under the supervision of a medical practitioner.
One member from Kenya commented: “despite the perceived comprehensiveness of our Anti-FGM law, serious legal gaps and loopholes within that law have emerged over the years. These have since been compounded by the filing of the High Court Constitutional Petition No. 8 of 2017 whereby a female doctor in Kenya is challenging the constitutionality of the Prohibition of FGM Act, 2011. She claims that this law infringes on the rights of women to full participate in their culture and denies them the autonomy over their bodies to participate in cultural activities of choice such as « female circumcision »
The doctor, Dr. Tatu, in Kenya, argued the following: « If women can decide to drink, to smoke, women can join the army, women can do all sorts of things that might bring them harm or injury, and yet they are allowed to make that decision. Women can also make the decision for female circumcision. And once she has made that decision as a woman, she should be able to access the best medical care to have it done.” »
Similar debates are currently taking place in Sierra Leone and Liberia, where adult women argue that once girls are 18 they have a right to chose to undergo FGM.
Members highlighted that FGM is a very strong social norm in communities, resulting in a situation where FGM is practiced on their daughters by women who oppose it and know of the consequences of the practice.
Annemarie Middelburg shared her experience of an interview with a mother in a very remote village in Kolda, Senegal : « We spoke about her dilemma in relation to the decision whether or not her daughter should undergo FGM, as she was reaching the age at which girls undergo the procedure. The mother shared with me that she had complications during childbirth a few years ago and her newborn died as a result of FGM. She also explained me her monthly problems and pains as a result of being cut. She explained me that – in the beginning – she thought that it was part of being a woman. However, later she later learned – due to education programs in her village – that these problems are linked to FGM.
Her daughter was playing outside the hut, and while she was pointing in the direction of her daughter, she said to me: “What do you advise me to do? I know the harmful consequences of FGM, as I have experienced it myself. But I also want my daughter to be part of this community, to find her a husband, and to get married.” Later on, she shared stories of what she called “strong mothers” who resisted to FGM for themselves and/or their daughters, but at the same time the horrible stories of how these women girls were being stigmatized, ridiculed and not accepted as community members. The mother really didn’t know what to do. And to be honest, it was a hard question for me to answer as well… »
In Belgium, as in all other European countries, FGM is also forbidden regardless the victim’s consent: « The basis for excluding the victim’s consent is linked to the limits placed on the individual’s right to self-determination over his or her body. These limits are of three types: respect for public order, strictly understood, the dignity of the person and the integrity of the species. A victim could not, for example, argue that he or she agreed to the practice of mutilation as a justification for social integration or necessity for marriage, thereby exempting an perpetrator from guilt and so no grounds based on mistaken belief in health, religion, ethnic recognition, tradition or socio-economic integration can be invoked to justify mutilation. » However, concent is an issue for adult women in the Belgian context , such as women who absolutely want to undergo type 3 for example after childbirth or undergo aesthetical genital surgeries (« designer vaginas »).
One member argued that« the Western law currently is incoherent in the way it treats medically unnecessary female genital cutting insofar as it is characterized as « FGM » as opposed to « female genital cosmetic » surgery, given that the two sets of procedures overlap anatomically and are often performed in similar ways . » while others agreed that there is a need to shed light on the incoherences of Western laws on FGM vs FGCS (female genital cosmetic surgeries), and raise issues of the right to bodily autonomy / agency / informed consent, comparing FGCS and FGM from a human rights law perspective.
Further light discussions would need be needed on the justifications for the differential treatment of the two practices (FGM / FGCS). Members questioned whether it is right to be broadly tolerant of the latter and extremely restrictive towards the former? Some were wondering if there should be more consistency in the legal framework, with a prohibition of both practices ?