The issue of Consent in anti- FGM laws

In Africa, many anti-FGM laws imply that if consent is given by a woman or girl, FGM is not a criminal offence (because she has “chosen” to be cut). (28 Too Many, September 2018b; Yusuf C., Fessha Y., 2013)

On the contrary, in most European countries, as well as in Australia, it is the fact that:

Whether or not a girl or woman has consented to FGM does not affect the legal status of the act. Nevertheless, in some European countries, consent may reduce the severity of the penalty. (United to End FGM)

The fact that FGM is not a criminal offence if a woman consents is often considered a serious weakness in the laws. Critics argue that families, friends and communities exert significant social pressure on girls and women to submit to FGM. Consent should therefore not affect the illegality of FGM and should not be accepted as a defence of the practice. (28 Too Many, September 2018b; Yusuf C., Fessha Y., 2013)

In many, but not all countries, FGM is illegal regardless of whether the girl or woman consented 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.
In Kenya, the debate has been carried to the legislative provisions surrounding the issue of FGM by a doctor as Annemarie Middelburg explained:

“Dr. Tatu is a woman doctor from Kenya. She has filed a complaint with the High Court of Machakos (Constitutional Petition No. 8 of 2017) to legalize FGM for adult women who she believes should have the right to freely choose FGM. She argues that the legal prohibition of female genital mutilation in Kenya (2011 Act) is unconstitutional and contends that adult women should have the freedom to consent to the practice and the right to have it removed under the supervision of a physician.”

Annemarie Middelburg reiterated the importance of distinguishing between underage girls, “too young to make their own decisions and unable to give free, informed and meaningful consent to FGM”, and adult women in addressing the issue of consent and FGM.

However, the question remains: Can adult women consent to FGM? 

Dr. Tatu argues the following (Bhalla N., Thomson Reuters Foundation, 2018): “If women can decide to drink, smoke, women can join the military, they can do all sorts of things that could cause them harm or injury, and yet they are allowed to make that decision. Women can also make the decision to have female circumcision and, once made, should be able to access the best medical care to carry it out”.

The same debate is currently taking place in Sierra Leone (Thomas A. R., The Sierra Leone Telegraph 2016,) and Liberia. I was in Liberia last year and had many discussions with adult women who said that once girls turn 18, they have the right to undergo FGM.

Brenda Dora elaborated further on the debate between FGM activists and activists and institutions in favour of strict enforcement of the 2011 law. Indeed, some argue that women performing FGM under strong social pressure to avoid stigmatization and to integrate into their communities should be considered to have consented to undergo FGM. Punishing these women would constitute a second punishment for some. They call for a version of consent motivated by cultural pressure to be enshrined.

The debate on consent and women’s autonomy over their body is a contested legal debate with communities and pro-FGM activists, claiming that women have the right to consent to cultural obligations affecting them, whilst the Direction of penal pursuits – ensuring the full law’s application – has ordered the arrest and pursuit of women and girls undergoing voluntarily FGM.

During the last three years, 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”. 

The debate within the legal fraternity in Kenya has been that it would be wrong to arrest, prosecute and convict such women as this amounts to a double penalty, given that they have been forced into FGM due to stigma and social pressure. Therefore, “perceived consent” is not consent in the real sense of the legal understanding of what consent is, but “coercion to tow the cultural line”. Civil society and legal practitioners have made concerted efforts to attempt to decriminalize these cases in light of the circumstances surrounding them, and to amend the law to fill legal gaps and address emerging socio-cultural and legal issues.

Annemarie Middelburg concluded by bringing to everyone’s attention the question: “Can women in these cases (where FGM is a strong social norm) give their free consent to FGM?”

Keyla Lumeka, jurist, stressed that in Belgium (Maryse A., INTACT Belgique, 2014) consent to FGM is not legally recognised under the three limits to the right to self-determination and the illegal nature of FGM cannot, in this sense, be subject to any exception. 

In Belgium, the law prohibits FGM and the consent of the victim is not a constituent element
“The basis for the exclusion of the victim’s consent is linked to the limits assigned to the individual’s right of 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 therefore not, for example, argue that he or she agreed to the practice of mutilation to justify social integration or a necessity for marriage, and thus exempt a perpetrator from his or her guilt. On the contrary, the victim’s consent, even if given, is irrelevant: the offence is in a way objective and disregards the state of mind of the mutilated person. This clarification is important since no grounds based on mistaken belief in health, religion, ethnic recognition, tradition or socio-economic integration may be invoked to justify mutilation.”

While the initial texts on the law criminalizing FGM were mainly aimed at protecting children in the context of harmful traditional or ritual practices, the issue of adult women and their willingness to undergo genital mutilation or alteration under medical supervision has not yet been fully resolved.

What about a woman who absolutely wants to be reinfibulated after childbirth, for example? Are all practices consented to, or even voluntarily requested by an adult person, legally justifiable? (Johnsdotter S., 2009)

Lastly, she recalled the protective approach to voluntary consensual violence adopted by Belgium in accordance with the European Court of Human Rights (ECHR).

“The Belgian Criminal Court has ruled that intentional assault and battery committed in the context of a sexual life is not justified by the victim’s consent. At most, such conduct may be excusable under Article 8 § 1 of the ECHR guaranteeing the right to privacy. However, there is one condition which delays such a right: the acts committed must not be of such a nature as to harm the health of the personsubjected to them and the consent must be legal. The ECHR has endorsed this approach (ECHR, Case K.A. and A.D. v. Belgium, 17 February 2005 (ECHR, 2005)).”

However, in Europe and the United States, the rise of cosmetic genital surgeries, such as “lip reductions”, which became particularly popular in the 1990s, raises important questions about why a woman or teenager may consent to having her lips ‘cut’ or even removed, when FGM is yet illegal. The “double standard” created by the criminalization of all forms of FGM (considered “traditional”) on the one hand, and the acceptance of similar types of medicalized genital alterations on the other, are the subject of increasing discussion among academics and NGOs in Europe and the United States. (Berer M. 2015)

Brian Earp expressed his concern about the existence of a double standard allowing cosmetic female genital alterations but penalizing female genital mutilation and drew parallels between the two practices.

“Western law is currently inconsistent in its treatment of medically unnecessary female genital mutilation as it is labelled “FGM”as opposed to “cosmetic female genital” surgery, as the two procedures overlap anatomically and are often performed in a similar manner. ” (Earp Brian D., Shahvisi A., Cambridge University Press, 2019)

Members were concerned about the comparisons made between the two practices whilst acknowledging the inconsistency of the law enshrining the existence of a double standard. Annemarie Middelburg put it this way:

“This issue of capacity to consent and social pressure is also closely related to Brian Earp’s remark (and Keyla Lumeka’s response) that Western law is currently inconsistent in the way it treats medically unnecessary female genital interventions. I am also very concerned about this situation, particularly with regard to the inconsistency of the law. I agree with Brian that some forms of FGM and female genital cosmetic surgery (FGCS) are often performed in the same way and/or include the same procedure.”

Further discussion on FGCS would be necessary to clarify this debate and to go into more detail in justifying this differential treatment. “Is it or would it be fair to be largely tolerant of one and extremely restrictive of the other? “Should there be consistency in the legal framework that prohibits both and does not prefer one over the other? What needs to be done to achieve this? “

« The Community of Practice on Female Genital Mutilation » is part of the « Building Bridges between Africa and Europe to tackle FGM » project, supported by the « UNFPA-UNICEF Joint Programme on the Elimination of FGM ».
The project is coordinated by AIDOS in partnership with GAMS Belgium.

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