Female Genital Mutilation: The First Prosecution And The Way Ahead
Female genital mutilation (FGM) means all procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons including partial or total removal of the external female genitalia. These mutilations are carried out by traditional circumcisers, mainly women, called ‘cutters’ using a variety of instruments, most often razor blades or glass.
What Is FGM?
However, according to the World Health Organisation, more than 18% of all FGM is performed by health care providers, and the trend towards medicalisation is increasing. More than 125 million girls and women alive today have been cut in the 29 countries in Africa and the Middle East where FGM is concentrated (http://www.who.int/mediacentre/factsheets/fs241/en/).
Female genital mutilation is classified by the World Health Organisation into four major types, but it is important to realise that this is a broad classification developed for statistical purposes and was not intended as a formal definition, either medically or in law. The four major types are (1) partial or total removal of the clitoris, (2) partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora, (3) sewing together the labia (or remaining scar tissue if the labia have been removed) covering the urethra and vagina and leaving a small hole for urine and menstrual fluid. This is often referred to as infibulation. (4) all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.
FGM is recognised internationally as a violation of the human rights of girls and it reflects deep-rooted inequality between the sexes, constituting to an extreme form of discrimination against women. FGM has no health benefits and as it involves removing and damaging healthy and normal female genital tissue it interferes with the natural functions of a woman’s body. For example, the FGM procedure that seals or narrows a vaginal opening (type 3 above) prevents normal urination and menstruation and needs to be cut open later to allow for sexual intercourse and childbirth.
Cultural, Religious & Social Causes
In most societies, FGM is considered a cultural tradition, which is often used as an argument for its continuation. Where FGM is a social convention, the social pressure to conform to what others do is a strong motivation to perpetuate the practice. FGM is often considered a necessary part of raising a girl properly, and a way to prepare her for adulthood and marriage.
FGM is often motivated by beliefs about what is considered proper sexual behaviour, linking procedures to premarital virginity and marital fidelity. FGM is in many communities believed to reduce a woman’s libido and is therefore believed to help her resist sexual acts. When a vaginal opening is covered or narrowed (type 3 above), the fear of the pain of opening it, and the fear that this will be found out, is expected to further discourage sexual intercourse among women with this type of FGM.
Though no religious scripts prescribe the practice, practitioners often believe the practice has religious support. Religious leaders take varying positions with regard to FGM: some promote it, some consider it irrelevant to religion, and others contribute to its elimination.
FGM In The UK
Because of the hidden nature of the crime, the prevalence of FGM in the UK is difficult to estimate. However, a report published in July 2014 by Equality Now and City University estimated that approximately 125,000 women who have migrated to England and Wales are living with the consequences of FGM. The latest data published by the Department of Health show that, for the period of September to December 2014, 1,946 newly identified cases of FGM were reported nationally, and 47 newly identified cases of FGM reported nationally were under the age of 18. Within the FGM service at one central London hospital, 6 girls under the age of 16 were seen in 2014 with FGM; although it is very hard to establish whether the FGM was performed in the UK or abroad.
FGM & Healthcare Providers
Women with FGM make up approximately 1.5% of all maternities and there are 14 specialist FGM clinics listed on the NHS Choices website, 10 in London and none in Wales or Scotland. According to one of the experts that gave evidence in the recent FGM trial at Southwark, there is no national requirement to include FGM as part of the undergraduate syllabus for doctors and whilst FGM is included in the current curriculum for all trainees in Obstetrics and Gynaecology, it is one of several competencies that can be signed off without clinical exposure to it. This means that doctors can be awarded the Certificate of Completion of Specialist Training (CCST), pass both parts of the MRCOG exam and take up a consultant post without being able to manage FGM independently and having had no clinical exposure to FGM.
In the WHO report 2001 entitled “Management of pregnancy, childbirth and the post partum period in the presence of FGM” it is stated that; “Once delivery is complete and the placenta delivered, the incision and any tears should be sutured. The edges of the anterior incision should be over sewn (my emphasis). The incision should not be closed to recreate a barrier at the introitus…demands for re-suturing to create a small opening (re-infibulation) should be resisted and the potential future health problems of such a situation should be explained”. Childbirth therefore presents a healthcare professional with a natural opportunity to permanently repair the FGM so that the labia or scar tissue is no longer fused together. The Clinical Management Guidelines published internally throughout the NHS adopt the WHO approach; “The raw edges on either side are then oversewn with an absorbable suturing material”.
However, the Royal College of Obstetricians and Gynaecologists (RCOG) current guidance, contained in a ‘Green Top’ guideline on FGM dated May 2009 is less clear, stating; “It is possible that obstetricians and midwives may be asked to re-infibulate a woman following vaginal delivery. Any repair carried out after birth, whether following spontaneous laceration or deliberate de-infibulation, should be sufficient to appose raw edges and control bleeding, but not result in a vaginal opening that makes intercourse difficult or impossible. The WHO recommends suturing of raw edges to prevent re-infibulation.” Therefore, whilst the RCOG references the WHO approach, it does not make clear that the WHO recommend that the suturing of raw edges should be by over sewing. Crucially, the current RCOG guidance condones apposing (joining together) the raw edges.
The Law
As would be expected during any prosecution which is the first of its kind, the law came under considerable scrutiny. The trial judge, Mr Justice Sweeney, ruled on an application to dismiss, a renewed application as to the definition of infibulation and a submission of no case to answer, twice. Other less formal legal arguments filled the gaps in the evidence (so we spent most of the time discussing the law? You might think that, I couldn’t possibly comment). Space prevents me setting out s1 (1) of the Female Genital Mutilation Act 2003. The edited highlights of the rulings are:
- ‘Infibulates’ means fastening together of the whole or any part of a girl’s labia major and/or minora. It makes no difference whether the infibulation is original or a re-infibulation.
- To amount to an offence, the infibulation need not necessarily significantly occlude the vaginal introitus.
- The prosecution must prove to the criminal standard that the defendant’s conduct did not come within either s1(2)(a) [it was not necessary for the woman’s physical or mental health] or s1(2)(b) [it was not for purposes connected with the labour or birth]. These sections are not defences to be raised by the accused; rather they are statutory exceptions that the prosecution has to prove to the criminal standard do not apply.
- The statutory exceptions (above) require the application of an objective not a subjective test. Therefore it may not matter whether the clinician is aware of the guidance as to best practice at the time. It became clear that the effect of the statutory exceptions had not been properly understood by some of the medical experts, even at the end of week one of the trial, who erroneously believed that Sweeney J’s definition of infibulation (above) would make it illegal for a doctor to repair a tear or incision by joining the edges together, even where this was clinically indicated and in the patient’s best interests. This is manifestly not the case. At the time of going to press it is understood that RCOG has formed an FGM Task Force and that the Green Top guidance is being rewritten; hopefully in a way that unambiguously adopts the WHO recommendation of over sewing the raw edges and that also reflects the law as it has been clarified.
Comparison With France
France has achieved more than 40 prosecutions since 1979, resulting in the punishment of more than 100 parents and cutters despite the fact that there is no specific law against FGM in France; instead perpetrators are prosecuted under general provisions of the penal code, such as acts involving intended bodily harm, causing permanent infirmity or mutilation and it is an aggravating factor in these crimes when they are committed against a minor. A key feature of the French system is the use of regular medical check-ups on children up to the age of six, which includes examination of the genitals. The system is not mandatory, though receipt of social security is dependent on participation. Furthermore, girls identified to be at risk of FGM are required to have medical examinations every year, and whenever they return from abroad. This approach is reinforced by a requirement on medical practitioners to set aside patient confidentiality and report cases of physical abuse against children. French law also criminalises acts of omission; failure to assist a person in danger can result in a heavy fine or imprisonment. Again, this approach has proven effective both in protecting girls in France from FGM, but also providing the evidence to mount a prosecution where FGM has taken place. The UK does not have an equivalent system of regular checks for all children, and the Government has declined to go down this route; the Home Affairs Committee report published on 25June 2014 pinned its hopes instead to “a number of successful prosecutions would send a clear message to practising communities that FGM is taken seriously in the UK and will be punished accordingly”. On 12 February 15, eight days after Dr Dharmasena and Mr Mohammed were acquitted, the Government announced its intention to introduce a new mandatory reporting duty through amendments to the Serious Crime Bill.
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