Critiques of legal measures against FGM

Common critique against legal measures to tackle FGM vary depending on the context in the implementing country and on whether the country has a high or low prevalence of FGM.

Despite criminalization in many African countries, FGM prevalence remains high. Thus, legal measures have not yet resulted in enough decline of the practice in many countries.

This is partly explained by the fact that FGM is a deeply rooted practice, entrenched in culture and therefore change is slow. However, critiques also argue that laws are not always implemented, that they are not always adequate and that there are several challenges to enforcement. 28 Too Many consider that only 2 out of 22 countries with anti-FGM laws fulfil all criteria that they consider necessary for satisfactory prevention and protection. (1, 9)

In Europe and other low-prevalence Western societies, critical voices are challenging what is seen as excessive use of legal measures against communities originating from high-prevalence FGM countries, resulting in stigmatization and negative consequences on the well-being of both children and parents from affected communities.

It should be noted that prosecutions for FGM have been relatively few on all continents.

Lack of ownership among communities

Lack of acceptance of the laws condemning the practice is one of the reasons given for the remaining high prevalence in many practicing African communities. Some critiques argue that affected communities are often not involved in the law-making processes.[1] Thus, there may be a perception among communities that laws are imposed from the outside and that they challenge their norms and culture.

In fact, in some contexts traditional and religious leaders have more power and influence than national governments. Sometimes there is a conflict of interest for police, local political and community leaders who continue to support the practice.

To be effective and prevent FGM, laws need to be widely known and understood in all communities. Yet, 28 Too Many argue that affected communities in Africa too often lack knowledge about the law. They stress the importance of drafting laws in such a way that they are easy to understand, including in all local languages.

Furthermore, some diaspora communities affected by FGM lack information about their host country’s legal system.

Lack of reporting on cases of FGM or risk situations

Persons from FGM-affected communities may be unwilling to report the practice, either because they are positive to the practice or because of unwillingness to file charges against family or community members. With the presence of anti-FGM laws the practice is further done in the privacy of family and community to avoid detection by law enforcers. Moreover, where FGM is a strong social norm, community members who openly oppose the practice risk stigma and rejection and may feel alienated from their community.

For migrant communities (in low prevalence settings), fear of the host-country authorities may be further obstacle to reporting FGM. (1)

Professionals’ and law enforcers’ limited knowledge of FGM and of the legal measures seem to be an obstacle for identification and reporting of cases (girls/women at risk or submitted to FGM), both in Africa and in Europe.

Furthermore, according to UEFGM, professionals in Europe may not want to report a suspicion of FGM if it is vague because they fear ‘disproportionate responses’ which they believe not to be in the best interests of the child (14). While experts stress the importance of protecting all girls against FGM, others also argue that the fear of ‘disproportionate responses’ are not totally unfounded (see section below).

Lack of resources

In the African region, lack of accountability procedures and law enforcement mechanisms is one of the barriers for effective implementation of anti-FGM laws according to 28 Too Many. They particularly blame ineffective governmental coordinating bodies, weak human rights institutions and ineffective judiciary bodies. Shortage of police and governmental officials in remote rural areas in Africa (where FGM is most prevalent) is also an issue for reporting and prosecution.

Under-funding and practical challenges such as accessing remote, rural areas, also continue to be obstacles in Africa.

Barriers to prosecution

Although there have been prosecutions or arrests in some African countries (Burkina Faso, Egypt, Ghana, Senegal, Sierra Leone), they have overall been very few. In The Gambia, for example, the law against FGM was adopted in 2015 and since there have been only 2 cases.

Similarly, in Europe there have been very few court cases in all countries, with the exception of France.

Moreover, for the African region conflicts of interest are also a problem when local police and judiciary themselves come from practising communities. (15, 16, 17) Difficulties of gathering enough evidence can hinder a case of FGM being brought to court, particularly in Europe.

Loop-holes in the law

In some African FGM laws references to ‘therapeutic’ and ‘medical’ reasons to perform FGM create loopholes for the practice. This is particularly true in Egypt, were FGM is increasingly medicalized. (1)

In low-prevalence settings such as the US and Europe, aesthetical genital surgeries are not included in the legal definition of FGM. Thus, “medical” types of genital surgeries, which share similarities with “traditional types of FGM”, such as labia reductions, clitoral reductions or vaginal, are legal for adult women and adolescent girls.

Some laws do not address cross-border FGM

In 19 African countries the laws do not specifically address the issue of cross-border FGM, only 3 prohibit & punish it (Guinea Bissau, Kenya and Uganda). Yet, in countries where FGM has become illegal families sometimes cross borders to get their daughters cut, to avoid prosecution.

Some European countries and several US States lack a “principle of extraterritoriality” and make so call “vacation cutting” legally possible.

Legal measures are not enough… and may even have negative effects

Given the difficulties raised, there is general understanding, both in high and lowprevalence settings that legal measures alone cannot put an end to FGM.

However, some authors even argue that anti-FGM laws can have negative effects as they drive the practice underground and make it harder for communities to seek help in case of urgent problems such as excessive bleeding.

Moreover, in low-prevalence countries the main targets of anti-FGM law are migrant communities. Thus, some critics argue that the laws stigmatise and create unnecessarily suspicion against racial and religious minorities in the host country who are already victims of a harsh political landscape.

‘Disproportionate responses’ in Europe

In Europe, critical voices are arguing that legal measures and other strategies to tackle FGM are having negative effects for African-European girls and their communities (4, 7, 13, 14):

  • ethnic and racial profiling
  • stigmatization of certain communities and exaggerated suspicion against their members
  • compulsory genital examination on girls who are unable to consent, sometomes without informing parents
  • the detention of parents (without proof of any incident)[2]
  • children taken into custody

The use of mandatory genital examinations has been questioned in Europe: who should do these examinations? On what grounds? How often should girls deemed at risk be examined? A recent article by Johnsdotter shows that compulsory genital examinations have been used excessively for Swedish African girls with negative effects on their wellbeing, and that these examinations have not led to the identification of a single case of FGM performed in Sweden. (7)

Several authors also point out that even experts are not always capable of telling whether a small girl or infant has been subjected to FGM, thus making evidence for trials questionable.

Considering the lack of evidence of FGM taking place in the UK, Berer (4) questions the mere existence of a specific criminal law against FGM in the country. According to her, the UK Prosecution services have “spent several years trying to find suitable cases with enough evidence to secure a conviction.” She critiques the law which, according to her, seeks to “punish behaviour that has not been shown to take place within your own borders [the UK], and then go out looking for someone to punish for it”

[1] In Uganda, in 2012, practicing communities in one village were so strongly opposed to legal measures against FGM that they ended up “arresting” and attacking police officers who had come to arrest suspects of FGM. Another example of adverse effects of anti-FGM laws is the way, in Tanzania, the 1967 law resulted in practicing groups re-invented FGM as the only cure for a “disease” affecting children, lawalawa.

[2] In two UK cases parents were arrested at the airport because they were travelling with daughters. Both cases were later dropped. Critics emphasis that cases like these show that a mere accusation of FGM, without proof, is enough to remove small girls from their parents. (4)