LAW & FGM
Examples of national and regional anti-FGM laws and cases in some low-prevalence areas (2019)
Fiona Coyle, director of the European Network End FGM shared their vision of legislation and prosecutions.
“Legislation and prosecutions are important, but not always enough. Ending FGM should not only be about prosecution but also, and most importantly, about prevention and protection.”
A few points;
- Istanbul convention
In 2011, the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (also known as the Istanbul Convention) was signed by EU member states and has since been ratified by the majority. This is the first legally binding instrument in Europe on preventing violence against women and domestic violence, protecting victims and punishing perpetrators. The comprehensive nature of the convention makes it a practical tool to address FGM. It incorporates existing international human rights law, standards and promising actions to address violence against women. It offers policy makers a wide variety of measures that can be introduced, and offers NGOs and civil society a sound basis for advocacy. To women and girls already affected by FGM, it sends the message that their stories are being heard. This an interesting document as it goes beyond looking at FGM solely from a criminality perspective. The End FGM European Network have produced this guide (The Council of Europe, End FGM European Network, Amnesty International, 2014) which shows exactly how the convention can be used and also highlights a number of promising practises;
- What do we mean by ‘law’ and exploring the concept of due diligence
When we talk about the law we should not only look at the perpetrator and the victim (the legislative element) but also at the legal obligations of the state especially under international law and treaties. In that regard, it’s interesting to look at due diligence. This is a concept which is recognised in existing international law standards and is central to the Istanbul convention. The Istanbul Convention requires state parties to organise their response to violence against women, including FGM, in a way that allows relevant authorities to diligently prevent, investigate, punish and provide reparation for such acts, as well as to provide protection to women and girls at risk (Article 5). In this respect, states are legally obliged to prevent FGM, protect its victims and prosecute its perpetrators by adopting a comprehensive approach involving all relevant actors and agencies in their actions. It’s a recognition that legislation alone is not the solution.
- Considerations in relation to the Law and FGM based on some of our experiences
Importance of recognising the cross-border element. In Europe, almost all laws contain a clause of extraterritoriality.
b) law enforcement
It is not enough to have a law. Enacting a law sends a strong message but this is weakened if there is no awareness of the law. In this regard, examples of promising practises can be found here (Council of Europe, 2017) but to highlight a few:
Some of our members have been working with their governments to produce statements opposing FGM (UK, Netherland, Germany). This is an official document in various languages outlining the health risks and the fact that FGM is a criminal offence in Europe.
Female Genital Mutilation Protection Orders (FGMPOs) offer a legal means to protect and safeguard victims and potential victims of FGM. FGMPOs are granted by a court and are unique to each case. They contain conditions to protect a victim or potential victim from FGM. This could include, for example, surrendering a passport to prevent the person at risk from being taken abroad for FGM or requirements that no one arranges for FGM to be performed on the person being protected. The UK issues the highest number of protection orders.
c) Court Cases
Very few criminal cases are brought to court in Europe. It has been stated that the underreporting of female genital mutilation is likely to be higher than that of any other form of gender-based violence, as it involves children, it has a secretive nature in closed communities and there is limited awareness of all aspects of the law among perpetrators, professionals and society as a whole. Furthermore, cases may not reach court due to a lack of first-hand witnesses or fear of disproportionate punishment for the parents. The paper linked above explores some of this and looks at promising practices.
France, where Female Genital Mutilation was criminalized in 1983, is often cited as an example of good practice in the implementation of the law to tackle FGM in Europe. The practice of FGM can lead to 10 years in prison or 20 years if the victim is under 15 years. Until 2014, more than 40 FGM cases were brought before criminal courts, and around 100 people were prosecuted, most in the mid-1990s. According to UEFGM, “The comparatively high number and visibility of cases prosecuted has played a major part in raising awareness within families and the general public” and the trials, together with community initiatives, have resulted in a decrease in prevalence since the 1980s. Currently, France is the only country to have prosecuted a substantial number of persons for practising FGM. (Berer M., 2015; United to End FGM
In the UK, the first law criminalizing FGM was passed in 1985 (revised in 2003). In 2015 several measures against FGM were included in the Serious Crimes Bill, including:
“making it illegal to fail to protect a girl from FGM, possibility to apply for a travel restriction for girls at risk, genital examinations, anonymity for victims to encourage reporting, a lower burden of proof than before.”
The first trial concerned a doctor who had treated an infibulated woman during an emergency delivery in 2013. The doctor, and another man who had been charged, were finally acquitted. This trial was criticized as reports indicated that the government was under pressure to have a “show trial” because no prosecution had taken place despite the law and several years of investigating potential cases. (Berer M., 2015, )
In the USA, where approximately 500.000 women and girls are thought to be either living with or at risk of FGM, 33 states have anti-FGM legislation. Out of these, 10 have Mandatory Reporting of FGM.
The Aha Foundation stress that 17 states have yet to criminalize FGM. However, others argue that FGM is already covered under more general laws on child abuse. The U.S. Congress passed a federal law in 1996 making it illegal to perform FGM, including if American girls undergo the practice abroad.
In 2006, a father was sentenced to 10 years imprisonment for having performed FGM himself on his 2-year-old daughter.
In 2017 an American doctor was charged in the Detroit federal criminal court for having performed genital mutilation on young girls from the (Indian) Bohra community. The “Michigan FGM trial” is the only case against the practice of FGM that has been brought to court under the federal law. However, in 2019 a federal trial court decision ruled that the federal law banning FGM was unconstitutional because the Constitution does not give Congress any general power to suppress crime, including murder, violence against women or child abuse.
Immediately following the FGM case in Michigan, the state passed the strongest and most comprehensive anti-FGM legislation in the US. Activists are calling for other states to pass their own anti-FGM laws. (Aha Foundation, 2019; Rashid A., Iguchi Y., 2019)
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