Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.

Dissertation all together


Published on

  • Increasing Sex Drive And Getting Harder Erections, Naturally ◆◆◆
    Are you sure you want to  Yes  No
    Your message goes here
  • A greater amount of semen and climax is better. Keep going as you are! ♥♥♥
    Are you sure you want to  Yes  No
    Your message goes here
  • There are over 16,000 woodworking plans that comes with step-by-step instructions and detailed photos, Click here to take a look ♣♣♣
    Are you sure you want to  Yes  No
    Your message goes here
  • ★★ How Long Does She Want You to Last? ★★ A recent study proved that the average man lasts just 2-5 minutes in bed (during intercourse). The study also showed that many women need at least 7-10 minutes of intercourse to reach "The Big O" - and, worse still... 30% of women never get there during intercourse. Clearly, most men are NOT fulfilling there women's needs in bed. Now, as I've said many times - how long you can last is no guarantee of being a GREAT LOVER. But, not being able to last 20, 30 minutes or more, is definitely a sign that you're not going to "set your woman's world on fire" between the sheets. Question is: "What can you do to last longer?" Well, one of the best recommendations I can give you today is to read THIS report. In it, you'll discover a detailed guide to an Ancient Taoist Thrusting Technique that can help any man to last much longer in bed. I can vouch 100% for the technique because my husband has been using it for years :) Here's the link to the report ♥♥♥
    Are you sure you want to  Yes  No
    Your message goes here
  • Get BIGGER and LONGER Without Surgery, Forget Surgery, Pills And Extenders, DON'T Do This To Make It Bigger. ♣♣♣
    Are you sure you want to  Yes  No
    Your message goes here
  • Be the first to like this

Dissertation all together

  1. 1. 1 A critical evaluation of the Female Genital Mutilation Act 2003 and the Serious Crime Bill [HL] 2014-15 in their ability to effectively combat Female Genital Mutilation in the UK. Ashleigh Bird Student Number: 1912185 Supervisor: Dr Kay Goodall April 2015 Bachelor of Laws with Honours (LL.B) School of Law and Philosophy Word Count: 10834
  2. 2. 2 Acknowledgements Firstly,Iwouldlike tothankDr Elaine Sutherland,DrBelénOlmosGiupponiandmy supervisor,DrKayGoodall,whose teachingsinspiredme toundertake suchanemotive topic.I extendspecificthankstoDr Goodall forhervaluedguidance andinputthroughout thisprocess.Secondly,Iwouldliketoextendmygratitude tothe StirlingCitizensAdvice Bureauwhose DomesticAbuse Projecthasprovidedme withaninvaluable insightintothe challengesfacingvictimsof abuse.Thirdly,Iamgrateful to Mridul Wadha,the Education OfficeratShakti Women’sAid,whodeliveredthe ForcedMarriage inScotlandTraining. Wadha’spresentationsofferedme afrontline perspective of the specificchallengesfacing the victimsof cultural practicessuchas FGM and forcedmarriage.Fourthly,Iwouldlike to thankSoroptimistInternational of Stirlingforofferingme the opportunitytopresentmy workto its members.Finally,Iwouldlike tothankmyfamilyandfriendsfortheircontinued love andsupportthroughoutmylaw degree.Specifically,IwouldliketothankAllanGreen whose unwaveringsupporthasbeeninvaluable. I confirmthat thisdissertationisentirelymyownworkandcomplieswiththe University’s policyonplagiarism.
  3. 3. 3 Abstract Female Genital Mutilation(FGM) isprohibitedinthe UK(EnglandandWales) underthe Female Genital MutilationAct2003.1 However,“evenconservative estimatesindicate that it couldbe the most prevalentformof severchildabuse inthe UK.”2 The UK’s prolonged failure toadequatelyprotectitswomenandgirlsfromFGMis a violationof itsinternational legal obligations.3 InJune 2014 the Home Office publishedthe SeriousCrimeBill [HL] 2014- 154 whichseeksto“strengthen and updatelaw to protectvulnerableindividualsfrom… femalegenital mutilation.”5 Therefore,considerationisgiventothe reasonsbehindthe failedapplicationof the 2003 Act and whetherornotthe Bill’sprovisions willbe an adequate remedy.Overall,the provisionsof the Bill are tobe welcomed.However,the successful eradicationof FGMwill be dependentonadditional non-legal mechanismssuch as educationand communityengagementprogrammesinbothinthe UK and inthe practice’scountryof origin. 1 In Scotland,FGM is prohibited under the Female Genital Mutilation (Scotland) Act2005. The Female Genital Mutilation Act 2003 repealed and replaced the Prohibition of Female Circumcision Act1985 however; most of its provisionswerereinstated. See chapter 2. 2 House of Commons Home Affairs Committee: Female Genital Mutilation:the casefor a national action plan Second Report of Session 2014-2015 (HC201,25 June 2014) 9. (House of Commons Home Affairs Committee). An estimated 660,000 women between the age of 15 and 49 have undergone the procedure and 24,000 girls under the age of 15 are estimated to be at risk or may have already undergone FGM Type 3: Infibulation; Efa Dorkenoo, Linda Morison and Alison Mcfarlane, A statistical study to estimate the prevalence of female genital mutilation in England and Wales, (Forward UK, 2007). (Efa Dorkenoo) 3 Bar Human Rights Committee of England and Wales,Report of the Bar Human Rights Committee of England and Wales:To the Parliamentary Inquiry into FemaleGenital Mutilation (London, February 2014) 7 < _2014.pdf> accessed 07/09/2014 (BHRC, To the Parliamentary Inquiry into FGM) 4 The Serious Crime Bill [HL] (2014-15) [160].The Bill received Royal Assent on the 03 March 2015 and became the Serious CrimeAct 2015. 5 UK Government, “New Powers to tackle serious and organised crimeannounced” Gov.UK (6 June 2014) < announced> accessed 19/02/2015.
  4. 4. 4 Contents Title Page……………………………………………………………………………………………………………………….…1 Acknowledgement………………………………………………………………………………………….………….……2 Abstract…...………………………………………………………………………………………………………………………3 Table of Contents……………………………………………………………………………………………………………..4 Table of Abbreviations……………………………………………………………………………………………..………5 Introduction…………………………………………………………………………............................................6 Literature Review…………………………………………………………………………………………………7 FGM: Why ShouldBritainCare?.............................................................................9 Chapter1: The UK Legal PositionandInternational Obligations………………………..…………..11 Chapter2: The Female Genital MutilationAct2003……………………………………………………….16 Chapter3: The SeriousCrimesBill [HL] 2014-15…………………………………………………………….35 Chapter4: Legal andNon-legal Cooperation…………………………………………………….…………..57 Conclusion………………………………………………………………………………………………………………....…61 Bibliography…………………………………………………………………………………………….…………………...64
  5. 5. 5 Table of Abbreviations ACPO- Associationof Chiefof Police Officers BHRC- Bar Human RightsCommittee BME- BlackMinorityEthnic CSO- Civil SocietyOrganisation CPS- CrownProsecutionService FGCS- Female Genital CosmeticSurgery FGM- Female Genital Mutilation FGMPO- Female Genital MutilationProtectionOrder FMPO- Forced Marriage ProtectionOrder Professionals/Practitioners- referstoFront-Line ProfessionalsorPractitioners Victim/s- referstoa victimorvictimsof FGM WHO- WorldHealthOrganisation “the Act/the 2003 Act”- Female Genital MutilationAct2003 “the Bill”- SeriousCrimesBill[HL] 2014-15 “2004 Act”-DomesticViolence,Crime andVictimsAct2004 “2007 Act”- ForcedMarriages(Civil Protection) Act2007
  6. 6. 6 Introduction “It’s Black and Asian Vaginas. Who’s Interested?” -Felicity Gerry, 2013 on Channel 4’s “The Cruel Cut” (6 November 2013) Female Genital Mutilation (FGM) or female circumcision “comprises all procedures involvingthe partial ortotal removal of the external femalegenital organs for non-medical reasons.”6 The practice is prohibited in the UK under the Female Genital Mutilation Act 2003 (the Act).7 Despite criminalisationin19858 an estimated660,000 womenbetweenthe age of 15 and 49 have undergone the procedure and 24,000 girls under the age of 15 are estimatedtobe at riskor may have alreadyundergone FGMinthe UK.9 However, it was not until March 2014 that the Crown Prosecution Service (CPS) announced its first ever prosecutionof the offence.10 The UK’slackof prosecutions11 hasbeen branded a “national 6 World Health Organisation,“Female Genital Mutilation:Fact Sheet No 241” (World Health Organisation,February 2014) <> accessed 26/02/2015 7 The Female Genital Mutilation Act 2003 repealed and replaced the Prohibition of Female Circumcision Act1985 however, most of its provisions werereinstated. See Chapter 2 8 FGM was originally criminalised under the Prohibition of Female Circumcision Act1985 9 Efa Dorkenoo (n2) 10 The CPS alleges that Doctor Dharmasena had repaired a previous mutilation himself.Dr Dharmasena is to be prosecuted for an offence contrary to Section.1(1) of the Female Genital Mutilation 2003 Act. Mr Hasan Mohamed is to faceone charge of intentionally encouragingan offence of FGM, contrary to Section 44(1) of the Serious Crimes Act 2007 alongwith a second charge of aiding,abetting, counsellingor procuringDr Dharmasena to commit an offence contrary to Section.1(1) of the 2003 Act. Serious Crimes Act 2007 Section 44: Intentionally encouragingor assistingan offence “(1) A person commits an offence if— (a)he does an act capable of encouraging or assisting the commission of an offence; and (b)he intends to encourage or assist its commission. (2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.” Crown Prosecution Service, “Firstprosecutions for female genital mutilation”CPS.GOV.UK (21 March 2014) < mutilation.html>accessed 09/09/2014 (CPS, FirstProsecution for FGM); For further readingsee: Sue Jenkinson and Dave Tapp, “Crime or Culture- Female Genital Mutilation/Cutting”(2014) Vol.178(48) Criminal Lawand JusticeWeekly < MutilationCutting>accessed 28/11/2014 (Jenkins) 11 BHRC, To the Parliamentary Inquired into FGM (n3) 7
  7. 7. 7 scandal.”12 In June 2014, the House of Commons Home Affairs Committee’s Report: “Female Genital Mutilation: The case for a national action plan” made a series of legal and non-legal recommendations to improve the UK’s ability to combat FGM. In the same month, the Home Office published the Serious Crime Bill [HL] 2014-15 (the Bill) with the same aim.13 Therefore, an exposition of the failures of the act itself must precede a discussion of the Bill. Literature Review In the UK FGM has been approached fromdifferentanalytical methodsincludingethnic perspectives,14 asa cultural pathologythatistiedtotraditional notionsof izzat(honour), sharam (shame)15 andthe continuationof patriarchal dominance throughsexual repression.16 However,the majorityof workhasfocussedonthe practice’s place of origin, namelyAfrica.17 Inthe UK, the majorityof discussionshave focussedonthe developmentof legislation,18 the approachtomulticulturalism19 andthe recentlegal developmentsamong Asylumlaw.20 Moreover,researchthatexamines thisfailure andhasonlyemergedinrecent 12 House of Commons Home Affairs Committee (n2) 10 13 The Serious Crime Bill [HL] (2014-15) [160];UK Government, “New Powers to tackleserious and organised crime” (n5) 14 Catherine Shelly,“Beating children is wrong,isn’tit? Resolvingconflicts in theencounter between religious worldviews and child protection”(2013) Ecclesiastical LawJournal 130 (Shelly); Sarah Long, “Multiculturalismand female genital mutilation”(2004) University CollegeLondon JurisprudenceReview 169 (Long) 15 Urdu Translation as cited in WHO, Factsheet (n6) 16 Abdulmumini A. Oba, “Female Circumcision as FemaleGenital Mutilation:Human Rights or Cultural Imperialism”(2008) Vol.8(3) Global Jurist: Frontiers,Article8; Jenkinson (10) 17 Erin L. Han, “Legal and Non-Legal Responses to Concerns for Women's Rights in Countries PracticingFemaleCircumcision”(2002) Vol.22 Boston College Third World Law Journal 201 18 Neelam Sarkaria and Felicity Gerry,“Time for the firstFGM prosecution?”(November 2012) Counsel: Journal of the Bar of England and Wales 27; Shelly (n14) 19 Parekh, B. Rethinking Multiculturalism: Cultural Diversity and Political Theory (PalgraveMacmillan, 2005); Long (n14) 20 Brendan Kelly, “What is a ‘particular social group’? Review of the development of the Refugee Convention in England”(2010) Journal of Immigration Asylumand Nationality Law9; Gemma Manning,“Female Genital Mutilation and the Assessment of Risk”(2014) Vol.72 Student Law Review 39; CarolineBridge,“Asylum: Fornah v Secretary of State for the Home Department [2005] EWCA Civ 680” (2005) Vol.35 Family Law 849
  8. 8. 8 years.21 Thisliterature focusesonthe unwillingnessof practicingcommunitiesto stopFGM and the barriersfacinggatheringsufficientevidence.22 Interestinthe topichasbeen propelledbythe recentmediacampaignsthathave servedtoenhance the public’s awareness of the practice.23 However,while thereisalack of literature aboutthe UK’s failure toeffectivelycombatFGMthere is a bodyof work that infers abiasedlegal attitude towardsthe treatmentof BME communitiesand theircultural andreligioustraditions. Specifically,the acceptance of female genital cosmeticsurgeryandmale circumcisionand the denial of a female equivalent.24 Therefore,the questioniswhetherornot such inconsistencies have hinderedthe enforcementof the 2003 Act.Moreover,a growingbody of literature emphasisesthe needforcommunityengagementinitiativestoeradicate the practice from withinthe community inboththe UKand the practice’scountryof origin.25 Therefore,anyproposal bythe UK Governmenttoimprove the enforcementof itslegal provisionsandpromote the eradicationof FGMmustbe evaluatedagainstathoroughand comprehensive understandingof the barriersfacingitscurrentapplication. 21Tiffany Ballenger,“FGM: Legal and Non-legal Approaches to Eradication”(2008) Vol.9 Journal of Law and Social Challenges 84 (Ballenger);Felicity Gerry, “Let’s Talk About Vaginas:Female Genital Mutilation:the failureof international obligations and howto end an abusivecultural tradition.” (2014) Vol.2(1) Griffith Journal of Law and Human Dignity 78 (Gerry, the failureof international obligations);Sarkariaand Gerry (n18); Manning(ibid);Jenkinson (n10); Shelly (n14);. 22 Susan Elmusharaf,Nagla Elhadi and Lars Almroth,“Reliability of Self Reported Form of Female Genital Mutilation and WHO’s classification:Cross Section Study” (2006) Vol.333 British Medical Journal 124;House of Commons Home Affairs Committee (n2). 23 House of Commons Home Affairs Committee (n2); BBC, “Stop Cutting Our Girls:A comic Relief Special”(11 March 2015) availableon the BBC iPlayer website < < special>accessed 21/03/2015; Channel 4, “The Cruel Cut” (6 November 2013) availableon the ‘Channel 4: On Demand’ website<> accessed 21/03/2015 24 Rosemarie Skaine, Female Genital Mutilation: Legal, Cultural and Medical Issues, (McFarland & Company, Inc.,Publishers,2005) (Skaine); Muhammad Munir,“Dissectingthe claims of legitimization for the ritual of female circumcision or female genital mutilation (FGM)” (2014) International IslamicUniversity (Munir); Lisa R. Avalos,“Female Genital Mutilation and Designer Vaginas in Britain:Craftingand Effective Legal and Policy Framework” (2015) (Forthcoming) VanderbiltJournal of Transnational Law (Avalos). 25 Patricia A.Broussard,“The Importation of Female Genital Mutilation to the West: The CruelestCut of All” (2009-2010) Vol 44 University of San Francisco LawReview 787; Ballenger (n21); Han (n17)
  9. 9. 9 FGM: Why ShouldBritainCare? In 2013 UNICEFestimatedthatmore than 125 milliongirlsandwomenhave beenmutilated worldwide.26 In2008 the WHO etal submittedthatbetween100 and 140 milliongirlsand womenhadundergone the procedure and3 milliongirlswere estimated tobe at risk globally. 27 FGMis mostprevalentin: “the western,easternandnorth-easternregionsof Africa,some countriesinAsiaandthe Middle East.”28 However,itisnow alsofoundinparts of Europe andthe UK.29 AccordingtoYoder PSet al,growing migrationhasincreasedthe numberof girlslivinginEurope whohave undergone FGMor are at riskfromit.30 Inthe UK the most widelycited31 estimates were publishedby FORWARDUK in2007.32 Usingthe 2001 censusdata, it was estimatedthatapproximately 660,000 womenbetweenthe ages of 15 and49 inEnglandand Waleshadundergone FGMandthat 24,000 girlsunderthe age of 15 were at highriskor may have alreadyunderdoneFGM.33 FGM istypicallyperformedongirlsbetweeninfancyandage 1534 and has beenclassified intofourmajor Types (WHO): 26 UNICEF, “Female Genital Mutilation/Cutting:a statistical overviewand exploration of the dynamics of change” (July,2013) <> accessed 15/110/2014 27 World Health Organisation,“EliminatingFemaleGenital Mutilation:An interagency statement” (UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCHR, UNHCR, UNICEF, UNIFEM, WHO, 2008) 1. (WHO, An Interagency Statement) 28 ibid 29 For further readingon the importation of FGM into the UK see: Broussard (n25) 787,806-807 30 Yoder PS, Abderrahim N. Zhuzhini,“A. Female genital cutting on the Demographic and Health Surveys: A Critical and ComparativeAnalysis”(2004) Vol.7 DHS Comparative Reports, ORC Macro 31 In March 2015 the BBC cited the statistics aspartof the FGM documentary “Stop Cutting Our Girls”(n23); In 2013, Channel 4 cited the statisticsin thedocumentary “The Cruel Cut” (n23) 32 Efa Dorkenoo (n2) 33 Infibulation:narrowingof the vaginal openingthrough the creation of a covering seal.The seal is formed by cutting and repositioningtheinner, or outer, labia,with or without removal of the clitoris. WHO, An Interagency Statement (n27) 6 34 WHO, Factsheet (n6)
  10. 10. 10 Type 1. Clitoridectomy:The partial ortotal removal of the clitorisand/orthe prepuce surroundingthe clitoris; Type 2. Excision:The partial ortotal removal of the clitorisand/orthe labiaminora,withor withoutexcisionof the labiamajora; Type 3. Infibulation:The narrowingof the vaginal openingthroughthe creationof acovering seal bycuttingand repositioningthe innerorouterlabia,withorwithout, removal of the clitoris. Type 4. Other:All otherharmful procedurestothe female genitaliafornon-medical purposes.35 HealthrisksassociatedwithFGMinclude: “severe pain,shock,haemorrhage,tetanusor bacterial infection,urine retention,opensores,cysts,infertility,anincreasedriskof childbirthcomplications, new-borndeathsandthe needforlatersurgeries.”36 The general consensusindicatesthatFGMispracticedto maintainpatriarchal dominance and adhere tosocial norms rather than as a religiousrequirement:37 “FGM functionsasa self-enforcing socialconvention orsocial norm.Familiesand individuals continue to perform it because they believe that their community expects them to do so. They further expect that if they do not respect the social rule, they will suffer social consequences such as derision, marginalisation and loss of status.”38 35 ibid;WHO, An Interagency Statement (n27) 6. For further readingon infibulation see:Binaifer A Davar,“Women: Female Genital Mutilation” (1996-1997) Texas Journal of Women and the Law 257. 36Gerry, The failureof international obligations(n21) 81; WHO, An Interagency Statement (n27) 11. 37 However, see Chapter 2 38 World Health Organisation,“Global Strategy the stop health-careproviders from performing female genital mutilation”(UNAIDS, UNDP, UNFPA, UNHCR, UNICEF, UNIFEM, WHO, FIGO, ICN, IOM,MWIA, WCPT, WMA, 2010) 2. (WHO, Global strategy)
  11. 11. 11 Accordingto Broussard,awarenessof FGMisincreasinginthe UK: “The recentwidespread immigration…have givenWesternersafirst-handview of cultural practicesonce shieldedby distance,silence andabit of disinterest.”39 Furthermore,increasedmediacoverage40 and campaignsbythe EveningStandard,the GuardianandThe Timeshave createda greater publicawarenessof FGM.41 This increasedpublicawarenesshasled toa Parliamentary InquiryintoFGM42 to whichthe Bar of Human RightsCommittee (BHRC) submitteda report.43 The Reportcondemnedthe UK’sresponse toFGMand consequentlyheldthe UK to be in breachof itsinternational legal obligations.44 Therefore, ananalysisof the 2003 Act isrequiredif anexplanationof thisfailure istobe found. ChapterOne:The UK Legal PositionandInternational Obligations In the UK FGM was criminalised bythe Prohibitionof Female CircumcisionAct1985 (1985 Act). 45 Onthe 3rd March 2004 the 1985 Act was repealedandreplacedwiththe Female Genital MutilationAct2003; howeverthe majorityof the 1985 Act’s provisionswere reinstated.46 Section.1(1)(a) of the 2003 Act states:“A person is guilty of an offenceif he excises,infibulatesor otherwisemutilatesthe wholeor any partof a girl’s labia majora, 39 Broussard (25) 787 40 BBC, “Stop Cutting Our Girls”(n23);Channel 4 “The Cruel Cut” (n23) 41 House of Commons Home Affairs Committee (n2) 9 42 Bar Human Rights Committee of England and Wales,“Report of the Bar Human Rights Committee of England and Wales:To the Office of the High Commissioner for Human Rights” (3 October 2014) 2 <> accessed 10/11/2015 (BHRC, To the Officeof the High Commissioner for Human Rights); House of Commons Home Affairs Committee (n2) 9 43 BHRC, To the Parliamentary Inquiry (n3) 44 Ibid 3 45 The Prohibition of Female Circumcision Act1985. The Act was repealed and replaceby the Female Genital Mutilation Act 2003.In Scotland,the relevant legislation isthe Female Genital Mutilation (Scotland) Act 2005. For further readingon the 1985 Act see: Joyce Board and Lesley Vickers “Female circumcision or female genital mutilation”(16 February 2001) Vol.151 New Law Journal 208 46 ibid
  12. 12. 12 labia minora or clitoris.”47 However,surgerycanbe performedif medicallyrequired “for her physicalor mentalhealth”48 andis performedby “a registered medical practitioner,a registered midwife or a person undergoing a courseof training with a view to becoming such a practitioner…”49 Furthermore, in“determining whetheran operation isnecessary for the mentalhealthof a girl it is immaterial whethersheor any otherperson believes thatthe operation is required as a matterof customor ritual.”50 The 2003 Actincreased the maximumpenaltyforconvictiononindictment froma maximumof five yearsunderthe 1985 Act51 to “a term notexceeding fourteen years.”52 The penalty forsummaryconviction wasreinstatedas“imprisonmentfora termnotexceeding six monthsora finenot exceeding thestatutory maximum(orboth).”53 Italsoextended the 47Under the Female Circumcision Act1985 Section.(1)(a) and (b) itwas a criminal offence for: “any person (a) to excise, infibulate or otherwise mutilate the whole or any part of the labia majora or labia minora or clitoris of another person; or (b) to aid, abet, counsel or procure the performance by another person of any of those acts on that other person’s own body.” 48 Female Genital Mutilation Act2003 Section.1(2)(a). Section.1(2)(b) extends the exception to include:“a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.” Under the Prohibition of Female Circumcision Act1985 Section.2(1)permitted surgery necessary: “(a) …for the physical or mental health of the person… or (b) is performed on a person who is in any stage of labour or has just given birth and is so performed for purposes connected with that labour or birth.” 49 Female Genital Mutilation Act2003 Section.1(3)(b); Equally,under the Prohibition of Female Circumcision Act1985.Surgery connected with the labour or birth must be performed by “a registered medical practitioner or a registered midwife has just given birth” (Section.2(1)(b)(i)) or “a person undergoing a course of training with a view to becoming a registered medical practitioner or a registered midwife” (Section.2(1)(b)(ii)). 50 Female Genital Mutilation Act2003 Section.1(5); Prohibition on Female Circumcision Act1985 Section.2(2): “In determining for the purposes of this section whether an operation is necessary for the mental health of a person, no account shall be taken of the effect on that person of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual.” 51 Prohibition of Female Genital Mutilation Act 1985 Section.1(2)(a),(b) A person convicted of an offence was liable“on indictment, to a fine or to imprisonment for a term not exceeding five years or to both; or (b)on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding six months, or to both.” 52 Female Genital Mutilation Act2003 Section.5(a) 53 Female Genital Mutilation Act2003 Section.5(b) and the Prohibition of Female Circumci sion Act 1985 Section.1(2)(b): “on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding six months, or to both.”
  13. 13. 13 offence toassistingagirl to mutilate herowngenitals54 andforUKnationalsorpermanent UK residents toorchestrate the offence beingcommittedabroad.55 The intentionwasto preventFGMfromoccurring inthe firstinstance.56 However, the firsteverprosecutionof the practice was onlypursuedinMarch 2014.57 The Act hasfailed. The UK’s domesticactivitieshave furtherimpetusdue toInternational legal obligations including: The Conventionforthe Eliminationof All Formsof DiscriminationagainstWomen 1979.58 Unequivocally, “FGMconstitutesone of the mostabhorrentformsof discrimination.”59 The UN ConventionagainstTorture andOtherCruel,InhumanorDegrading Treatmentor Punishment 1984.60 54 Female Genital Mutilation Act2003 Section.2: “A person is guilty of an offence if he aids, abets, counsels or procures a girl to excise, infibulate or otherwise mutilate the whole or any part of her own labia majora, labia minora or clitoris.” 55 Female Genital Mutilation Act2003 Section.3(1): “A person is guilty of an offence if he aids, abets, counsels or procures a person who is not a United Kingdom national or permanent United Kingdom resident to do a relevant act of female genital mutilation outside the United Kingdom” 56 Sarkaria and Gerry (n18) 28 57 CPS, “First prosecution for FGM” (n10) See also:Jenkinson and Tapp (n10) 210 58 The Convention on the Elimination of All Forms of Discrimination againstWomen (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. It defines what constitutes discrimination againstwomen and sets up an agenda for national action to end such discrimination.Article.1 states:“For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” Article.2 requires States to: “States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women.” 59 BHRC, To the Parliamentary Inquiry (n3) 7 60 UN Convention againstTortureand Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 Article.1: ““[T]he term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person … for any reason based on discrimination of
  14. 14. 14 The UN Conventionon the Rightsof the Child1989 requiresthatthe UK ensures that itschildrenare notsubjectto “torture or othercruel,inhumanor degrading treatment.”61 Cleary,FGMis an “irreparable violationof the child’sbodilyintegrity and physical andpsychological health.”62 The Council of Europe Conventiononpreventingandcombatingviolenceagainst womenanddomesticviolence (The Istanbul Convention). Article3drecognises FGM as a specificformof violence againstwomen63 andrequires thatmember statesintroduce FGMas a criminal offence.64 However,FelicityGerry states:“International declarationsfor the benefitof womenand girlshave no currencyif the wordsdo not translate intopractice.”65 Giventhe prevalence of the practice,there is“veryseriousdoubtthatthe UK has compliedwiththese obligations.”66 Accordingly: any kind.” Article.2 demands that states “take legislative,administrative, judicial or other measures to prevent acts of torture within its jurisdiction.” 61The UN Convention on the Rights of the Child 1989 Article37(a) 62 BHRC, To the Parliamentary Inquiry (n3) 7 63 Article38(a) of the Istanbul Convention defines FGM as:“excising, infibulating or performing any other mutilation on the whole or any part of a woman’s labia majora, labia minora or clitoris.” 64 The Istanbul Convention Article45 Paragraph 1 also asserts thatthe criminal sanctionsmustalso be “effective, proportionateand dissuasive.”Moreover, guidancefrom the Council of Europe assets that:“the offence applies irrespective of whether or not the act was committed intentionally or performed by a medical practitioner and includes the act of pressuring or coercing a girl or a woman to undergo the procedure “voluntarily.”” Council of Europe, “Safe From Fear, Safe From Violence: The Council of Europe Convention on preventing and combating violenceagainstwomen and domestic violence”(2014) < > accessed 09/09/2014 65 Gerry (n21) 82 66 BHRC, To the Parliamentary Inquiry (n3) 8
  15. 15. 15 “[T]he UK has been in serious breach of its international obligations to protect women and children from genital mutilation [and that] during the period the UK has been on breach, thousands, of British national girls have been mutilated… their mutilation evidences a serious breach of the state’s duty of care.”67 […] “Intrinsic to these obligations in the requirement that states must not only respond to FGM but respond in an effective way. Passing legislation,asthe UKhasdoneremainsan insufficientresponseif implementation is not effective in practice.”68 To rectify this,Bill proposesan“unprecedented”69 amountof legal provisions designed “to strengthenandupdate lawstoprotectvulnerable individualsatriskof…femalegenital mutilation.”70 These include: 1. Extensionof the 2003 Act’sprotectionoverthose withoutsecure immigrationstatus; 2. Lifelonganonymityof FGMvictims; 3. The introductionof a ‘parental‘71 offence forfailingtoprotect a childat risk of FGM; 4. The introductionof a civil remedyinthe formof FGM ProtectionOrders (FGMPO) and; 5. A proposedmandatorydutyonprofessionalstoreportsuspectedinstances of FGMto the relevantauthorities. 67 ibid 1 68 ibid 4 69 UK Government “New powers to tackleserious and organised crime”(n5) 70 ibid 71 Liability is afforded to those actingas loci parentis.
  16. 16. 16 The UK has beencommittedbothdomesticallyandinternationallytothe eradicationof FGM. However,ithasbeenunsuccessful.Tounderstandwhy,ananalysisof the 2003 Act and the Bill’spropositionsisnecessary. Chapter2: The Female Genital MutilationAct2003 Despite severalpoliceinvestigations,72 NeelamSarkaria73 etal’sassertionthat:“These will be difficulttrialsbuttheyare possiblewithabitof will anda lot of effort”74 has proved fruitless. AsFelicityGerry insists:“Thesuccessfulprosecution [of FGM] dependson there being reportsmadeto the police in relation to thoseat risk or thosemutilated followed by a proactiveinvestigation.”75 The questionremains:Whyare these activitiesnotbeing reported? Firstly, the practice isofteninstigated,if notperformed,bythe victim’sfamily.76 Therefore, victimsmaybe reluctantto reportthe offence.77 Secondly,youngvictimsmaynot remember78 orrealise whattheyhave beensubjectedtountil several yearslater.79 Thirdly, a victimmay view FGMas herrite of passage intoadulthood.80 Finally,FGMis typically performedasa meansof preservingthe familyhonour;ensuringagirl’svirtue by“cutting 72 House of Commons Home Affairs Committee (n2) 12 Moreover, the CPS only received its firstreferral from policein 2010. 73 At the time of the statement, Sarkariawas the Head of the Criminal JusticeUnitat the Crown Prosecution Serviceand Vice-Chair of the Association of Woman Barristers. Sarkaria and Gerry (n18) 27 74 ibid 75 Felicity Gerry, “Female genital mutilation:time for a prosecution” The Guardian (13 November 2012) <> accessed 07/08/2014 76 WHO, An Interagency Statement (n27) 5 “Member of the extended family are usually involved in decision-making about female genital mutilation, although women are usually responsible for the practical arrangements for the ceremony.” 77 House of Commons Home Affairs Committee (n2) 13 78FGM is reported to typically occur between infancy and the age of 15. WHO, An Interagency Statement (n27) 4 79 House of Commons Home Affairs Committee (n2) 13 80 WHO, An Interagency Statement (n27) 6; House of Commons Home Affairs Committee (n2) 13
  17. 17. 17 away the dirt”81 and removing“herneedforman.”82 As such,fleeingordefyingthe practice isviewedas placingthe familyandcommunity ‘izzat’injeopardy.83 Accordingly, a noncompliantgirl mayface reducedmarriage prospects,ostracism, evenviolence andis compelledintosilence.84 Therefore,asThe Directorof PublicProsecutionsconcluded:“If youwait forthe girl to come and tell youwhathashappenedto her[…] that isnot goingto happen.”85 Overall: “Survivorsaredisempowered girls, with little voices, knowledge or social resources to make official complaints…[they] are confused, have conflicting loyalties and are scared of losing their parents.”86 Therefore,victimsandpotential victimsare unlikelytoreportthe offence. Furthermore,membersof practicingcommunities maybe reluctantto reportthe crime: “[They] expectthatif they do notrespect the social rule, they will suffersocialconsequences such as derision, marginalization and loss of status. [FGM] is considered to be a necessary 81 Some practicingcommunities viewfemale sexuality as a potential threatto family honour. Therefore, female sexuality is in need of repression and achieved by mutilatingthe genitals. In Kembata, Tembaro, the practiceif called “cuttingoff the dirt.” Tina Rosenberg, “TalkingFemale Circumcision outof Existence” The New York Times (17 July 2013) <> accesses 13/07/2014 82 Shekh Yussef al-Badri is oneEgypt’s primary advocates for female genital mutilation.Cited in: BBC News, “Circumcision controlswomen’s sex common sense” BBC News|Africa (19 June 2013) <> accessed 13/07/2014; See also Celia W.Dugger, “Report Finds Gradual Fall in FemaleGenital cuttingin Africa” The New York Times (22 July 2013) < female-genital -cutting-in-africa.html?pagewanted=all&_r=0>accessed 27/12/2014 83 ‘Izzat’ is the Urdu translation for ‘Honour.’ WHO, An Interagency Statement (n27) 6 84 Rosenberg (n81) 85The Director of Public Prosecutionscited in Houseof Commons Home Affairs Committee (n2) 13 86 Dexter Dias,Felicity Gerry and Hilary Burrage,“10 reasons why our FGM lawhas failed-and 10 ways to improve it” The Guardian (7 February 2014) prosecutions-law-failed accessed 14/11/ 2014
  18. 18. 18 step to enable girls to becomewomen and to be accepted…by thesocial group of which they are part.”87 Accordingto UNICEFthe mostcommonreasongivenfor FGM issocial:no parentwants theirdaughtertobe disgracedandexcludedfromlocal life.88 Furthermore,there isa cultural disconnectbetweenthe UKandthe country of origin.89 SarahMcCullochfromthe AgencyforCulture andChange Management90 accreditsthisto:“No one is givingthem information.If theyarrive inthiscountry,theydonotknow the lawsof the land- theycome withtheirculturesandholdontothem.”91 Thisis magnified bythe UK’sprohibitionof FGMas a specificoffence92 outwithdomestic abuse legislation.Consequentlypracticingcommunities considerthataspectsof their culture are beingchallenged:93 “one of the biggest barriers to the eradication of FGM is the perception… that Western opposition to the practice is nothing more than an example of cultural imperialism.…the current Western onslaught on Islam.”94 87WHO, Global Strategy (n38) 2 88 UNICEF (n26) 14-22 89 Alexander Topping and Mary Carson,“FGM is banned but very much alivein the UK” The Guardian (6 February 2014) < foreign-crime-common-uk> accessed 14/10/2014 90 ACCM (UK) was established in 2008.Itis a Charity and an international non-governmental organisation evolved froma major local charity,Agency for Culture and Change Management - (ACCM Sheffield), whose primary rolewas to lobby for and communicate the effects of legislation concerningFemale Genital Mutilation and other harmful traditional practices in theUK. The primary function of ACCM (UK) is to expand this work in the new legal framework and to look at the wider issues thataffect minority and other vulnerablecommunities. See: <> accessed 03/02/2014 91 Topping and Carson (n89) 92 Point22 of the European ParliamentResolution on combatingfemale genital mutilation 2009 (2008/2071(INI):“Calls on Member States to either adopt specific legislation on FGM or under their existing legislation to prosecute each person who conducts genital mutilation.” 93 Colin Walker,“Why should the British public careaboutFGM?” The Guardian (14 July 2014) < female-genital-mutilation-campaign-girls-summit>accessed 14/10/2014
  19. 19. 19 Similarlythe UK’scriminalisationof ForcedMarriage underthe Anti-socialBehaviour,Crime and PolicingAct201495 has beenregardedas: “[L]ittle more than an exampleof the Government’shypocrisy, and its cynical use of gender to intensify repression,criminalisation and ‘Islamophobia’…symbolicof all that is deemed to be wrong with minorities.”96 Thus,the Governmentiscreatingabelief that:“violence againstwomeninBME communitiesissomehowquantitativelydifferenttoviolence againstwomeninmajority communities.”97 Furthermore, the increasingpopularityof FemaleGenital CosmeticSurgery(FGCS) has fermented thisissue.98 The Associationof Chief Police Officers(ACPO) andthe Metropolitan Police have issuedtheirconcernsthatthe “focuson practicingblackand ethnicminority communitieswhilstinthe widercommunitythe ‘designervagina’private medical industry 94 JacquelineCastledine,“Female Genital Mutilation:An Issueof Cultural Relativismor Human Rights” (2008) Mount Holyoke College <> accessed 12/08/2014 95 The Section.121(1)(a) of the Anti-social Behaviour,Crimeand PolicingAct2014 criminalised the use of “violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage” and “(b) believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent.” Section 120(2)(a) also made ita criminal offenceto breach a Forced MarriageProtection Order: “A person who without reasonable excuse does anything that the person is prohibited from doing by a forced marriage protection order is guilty of an offence.” 96 Armit Wilson,“Criminalisingforced marriagein the UK: why it will nothelp women” (2014) 50:50 InclusiveDemocracy < marriage-in-uk-ehy-it-will-not-help-women> accessed 07/09/2014 Furthermore, the Government had been accused of “exoticising[and] stigmatising”“ghetto legislation targeted at specific ethnic minority communities.” Equal Communities Commission,‘Letter to Lord Lester’, 24 January 2007 cited in Armit Wilson,“The forced marriagedebate and the British State” (2007) Vol.49(1) Raceand Class 25,32 97 Rights of Women, “Response to the Home Office-Foreign and Commonwealth OfficeConsultation on Criminalisation:‘Forced Marriage:A Wrong Not A Right’” (5 December 2009) 3. <> accessed 23/03/2014 98 Female Genital Cosmetic surgery (FGCS) has seen a fivefold increasein the past10 years. In 2011 the NHS performed over 2000 labiaplasty procedures.Labial reduction surgery,or labiaplasty,is to most common form of FGCS and typically involves theremoval of a portion of the labia minora.See: House of Commons Home Affairs Committee (n2) 38
  20. 20. 20 isflourishing.”99 Like FGM, FGCS encompassesseveralproceduresincluding:labiaplasty,100 vaginoplasty,101 hymenoplasty,102 labiamajoraaugmentation,103 vulvallipoplasty,104 G-spot augmentation105 andclitoral hoodreduction.106 The 2003 Actprohibitsall genital surgerynotmedicallymandated.107 Therefore, itdoesnot discriminate betweenFGMand FGCS.108 Furthermore,underBrown [1993]109 consent cannot be usedto permitmedical proceduresthatare notin “the patent’sbestinterest.”110 99 The ACPO and the Metropolitan PoliceOfficers cited in:Secretary of State for the Home Department: The Government Response to the second report from the Home Affairs Select Committee session 2014-2015HC 201: Female Genital Mutilation:the casefor a national action plan (CM 8979,December 2014) 38 < onseWeb.pdf> accessed 12/01/2015 100 “This involves surgery to the labia minora (inner lips) and less frequently, the labia majora(outer lips). Labiaplasty of the labia minora is the most commonly performed GCS procedure. It generally involves reducing the size of the inner lips so they do not protrude below the outer lips. It is also used to correct asymmetry of the lips, where one lip is significantly different in size/length to the other. Some women have labiaplasty because their labia cause them chafing, irritation and also limit their participation in activities such as bike riding. However, many women also undergo labiaplasty because they are embarrassed about the appearance of their labia.” Women’s Health, “Health Journey” (Issue3, Women’s Health Queensland Wide Inc,2013) pg 4 <> accessed 15/12/2014 101 “This involves tightening the inside of the vagina and the vaginal opening by removing excess tissue from the vaginal lining.” ibid 102 “This procedure reconstructs the hymen (the thin membrane of skin that partially covers the vaginal entrance in a virgin). The edges of the torn hymen are reconnected so that when sexual intercourse takes place the membrane will tear and bleed.” ibid 103 “This procedure seeks to plump up the outer lips by injecting them with fatty tissue taken from another part of the woman's body.” ibid 104 “This procedure involves the use of liposuction to remove fat deposits from the mons pubis (the pad of fatty tissue covered by pubic hair). This results in the mons pubis being less prominent.” ibid 105 “This procedure involves injecting a substance such as collagen into the G-spot in order to enhance its size and, therefore, theoretically also a woman's sexual pleasure.” ibid 106 “This procedure involves reducing the hood of skin which surrounds the clitoris, exposing the glans (or head) of the clitoris that lies underneath.” ibid 107 Female Genital Mutilation Act2003 Section.1(2) 108 Secretary of State for the Home Department (n99) 14 109 Brown [1993] 2 All E.R. 75 110 In Brown, the majority concluded that consent would not be used as a defence where actual bodily harm,or more serious injury,has been intended or caused unless on of a limited number of recognised exceptions applied.As Cooper explains:“It is acceptable that surgical procedures are excepted from the narrow rule as formulated by Brown. The intentional harm or wounding that is inflicted on the patient by the medical practitioner is exempted on the grounds that it is therapeutic purposes are in the patient’s best interest and are therefore a good reason for allowing harm to be caused, provided that the patient has provided full, free and informed consent in advance of the procedure. [However] not all surgical, or pseudo-surgical, procedures are exempted from the principle…there must always be a good reason for inflicting the harm. Thus, Parliament has determined, by its enactment of the Female Genital Mutilation Act 2003, that female circumcision
  21. 21. 21 Moreover,Article 14 of the HumanRights Act 1998111 requires the Governmenttotake appropriate measurestoensure that individualsandcultural groupsare beingtreated equally. Assuch,FGCSand FGM shouldbothbe evaluatedunderthe 2003 Act.112 Thus, eitherphysiciansare able tojustify FGCSasmedicallynecessary113 orthe activityisbeing ignoredbythe police andprosecutors. 114 Forinstance,labiaplastyhasbeencomparedFGM Types1 and2.115 Consequently: “Some people in FGM-affected communities perceive a double-standard whereby FGM is prohibited but FGCS occurs with frequency and no legal sanction. Some may take the view that the double standard essentially allows the state to regulate what women of colour do with their genitals while allowing white women to undergo similar procedures legally.” 116 Furthermore,the Royal College of Gynaecology hasinterpretedthe 2003 Act as permitting “cosmeticsurgeryresultingfromdistressbyperceptionof abnormality.” 117 However,this perceivedabnormalityisincreasingdue to: should be unlawful as the cultural reasons for carrying out the procedure are outweighed by the unnecessary and often lasting physical and mental suffering caused to the victim.” Simon Cooper, “Enlightenment- the painful process of rethinkingconsent” (2012) Criminal Law Review 188, 192 111 Human Rights Act 1998 Article14, The Prohibition of Discrimination: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 112 For further readingsee Avalos (n24) 78 113 ibid 17 114ACPO and the Metropolitan Policecited in:House of Commons Home Affairs Committee (n2) 38 115 Classification provided by the World Health Organisation:Type 1, Clitoridectomy and Type 2, Excision.Women who have undergone these and other procedures may experience a loss of sensation in the genital region which affects their sexual responsiveness.The procedure may also resultin a loss of elasticity in thelabia and the development of scar tissue.Furthermore, all of these conditions can resultin complicationsduringlabourand delivery. Royal College of Obstetriciansand Gynaecologists“Ethical Opinion Paper:Ethical Considerationsin Relation to Female Genital Cosmetic Surgery” (October 2013) 4 < ethical-opinion-paper.pdf>accessed 21/02/2015 (RCOG) 116 Avalos (n24) 77 117 RCOG (n115) 2
  22. 22. 22 “unrealistic, idealised images of female genital appearance are widely available in popular culture [and] women have developed a negative perception of their genitals after comparing themselvesto photographs in […] sources such as pornographic magazines.”118 As notedbyLisa JohnsonFirth:“Whenyouare talkingaboutFGM and the waysthat womenabroadmay feel compelledtomodifytheirbodiesforsocial acceptance,itcannot be lostthat [Western] womendothe same throughplasticsurgery.”119 Moreover,Shelly questions:“Howcanplasticsurgeryto breastsor otherbodyparts inthe interestof a sociallyconstructedunderstandingof beauty,be distinguishedfromsurgerytofemale genitaliaforthe sake of a sociallyconstructed dignity?”120 Therefore,asassertedbyAvalos: “There is undoubtedly a social dimension to their dissatisfaction which is not unlike the pressure facing women in FGM-affected communities.121 [Therefore] It is difficult to argue that a mental health exception allowing FGCS is a rational policy when the 2003 Act states that in determining whether FGM is required as a matter of custom or ritual shall not be taken into account.122 However,despite the assertionthatcertaintypesof FGMand FGCS are physically similar theyhave differentcultural significance.Forinstance,FGMisa social necessity.123 In contrast,FGCS has little relevance beyondthe womanandherintimate partner.124 Moreover, FGCSis “lesscoercive andinthat sense doesnotviolate women’shumanrights 118 ibid 3 119 Lisa Johnson-Firth,LLB., J.D.,Director of Legal Services,Tahirih JusticeChurch,VA, cited in Rosemarie Skaine, Female Genital Mutilation: Legal, Cultural and Medical Issues, (McFarland & Company, Inc.,Publishers,2005) 88 120 Shelly (n14) 135 121 Avalos (n24) 78 122 ibid 77 123 Bufton refers to FGM as “mandatory” for a woman’s social and economic survival within the practicingcommunity. Susan Bufton, “Child Abuse: female genital mutilation acts of violence done to young girls for sexual control”(2009) Criminal Lawyer 5, 6 See also,Avalos (n24) 78 124 Avalos ibid
  23. 23. 23 inthe waythat FGM does.”125 Therefore,the twoprocedurescannotbe compared. Nevertheless,there are inconsistenciesastowhatthe UK holdsas an acceptable procedure on female genitalia.126 Thiscounterintuitive arrangementhasservedtohinderthe applicationof the Act. Finally, the UK’sacceptance of male circumcision andthe rejectionof ‘femalecircumcision’ iscontentious.127 Male circumcisionis“the surgical removal of the foreskinof the penis,or prepuce”128 while female circumcisionisdefinedas:“Anothertermforfemale genital mutilation”129 andtherefore, prohibitedbythe Act. However, NowaOmoigui130 arguesthat“mutilatingthe clitorisinthe sense of damagingor choppingitoff isnot the same as removingthe hood.”131 He classifies this‘lessinvasive’ 125 ibid 126 Avalos (n24) 17; ACPO and the Metropolitan Policecited in:House of Commons Home Affairs Committee (n2) 38 127 J. Steven Svoboda, “Routine InfantMaleCircumcision”in George C. Denniston, Marilyn Fayre Milos,Sexual Mutilation: A Human Tragedy (Springer Science+ Business Media,1997) 205-215; Shelley (n14) 134 128 National Health Service (NHS) UK: “[male] circumcision is a common practice in the Jewish and Islamic faiths, and is also practised by many African communities as a tribal or ethnic tradition see In the UK male circumcision is also performed for medical reasons. However, alternative treatments are usually preferred to circumcision.” <>accessed 37/03/2015 129 Oxford OnlineDictionary.< circumcision?q=female+circumcision>accessed 28/03/2015 The WHO definition also encompasses femalecircumcision as a formof FGM: “Female genital mutilation (FGM) comprises all procedures thatinvolvepartial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.” WHO, An Interagency Statement (n27) 4 130Nowa Omoigui,MD, MPH, FACC, is Nigerian military historian and cardiologistand has a Medical Doctorate, a Masters in Public Health and is Fellowof the American College of Cardiology.See: Ojo, Bamidele. Problems and Prospects of Sustaining Democracy in Nigeria (Nova Publishers,2001). p. 230 131 Nowa Omoigui,“Protest AgainstBill H22 Outlawing“FGM" In Nigeria”(2001) Vol.1 JENDA: A Journal of Culture and African Women Studies 3 <> accessed 27/03/2015
  24. 24. 24 formof ‘FGM’ as ‘female circumcision’ andequatesitto male circumcision.132 Therefore, the sanctioningof one yetthe denial of the otherishypocritical.133 AsNnamuchi explains: “The clitoral prepuceis anatomically analogous to the penile prepuce…both serve relatively similar functions. Regarding female circumcision, neither the procedure not its consequences resemble a clitoridectomy or other types of FGM.”134 Accordingly,the ActandWHO definitionsof FGM“mischaracterise”adiverse range of cultural practices: “There is a hugedifferencebetween mutilation and circumcision… to group all forms of age old religious circumcision into one large category under the guise of medical enlightenment of a civilisation is very unfortunate.”135 Parekhconcursthat the excisionof the male andfemaleprepuce isdirectlycomparableand if one is permittedthe othershouldbe also.136 Moreover,SusanElmusharaf etal suggested that: “Ratherthan pigeon-holing every conceivableformof ritualistic genitalprocedurewithin the WHO’s classifications, a better approach would be to classify rituals according to the anatomical extent of the procedure.”137 132 ibid 133 Nowa Omoigui cited in Obiajulu Nnamuchi,““Circumcision”or “Mutilation”? Volunta ry or Forced Excision? Extractingthe ethical and legal issuesin FemaleGenital Ritual”(2012) Vol.25 JusticeLaw and Health 85, 94 134 Ibid 95 Furthermore, Slack asserts thatthe ‘harsh’consequences associated with female circumcision are attributableto the conditions thatthe procedure is performed under rather than the procedure itself.For instance,the lack of professional medical knowledgeand anaesthesia resultsin thegirl strugglingwhich results in the procedure becoming more invasivethan originally intended. Slack,“Female Circumcision:ACritical Appraisal”(1988) Vol.10 Human Rights Law Quarterly 437, 451 135 Nowa Omoigui cited in Nnamuchi (n133) 92 See also:Abdulmumini A. Oba (n16) 4 136 Parekh (n19) 276 137 Susan Elmusharaf et al (n22) 127
  25. 25. 25 Arguably,“demonisingall formsof female circumcisionasFGMfailstoadvance the eradicationof [FGM].”138 The legal disparitybetweenmale andfemale circumcisionhas increasedthe lackof cooperationbetweenthe law andthe communitiesthatitsetsout to protect. Religionprovides the final bulwarkagainstthe Act’seffectiveness. Forinstance,the WHO asserts: “Even though the practice can be found among Christians, Jews and Muslims, none of the holy texts of any of these religionsprescribes femalegenital mutilation and the practice pre- dates both Christianity and Islam.”139 However,Mackie notesthatwhile the practice is“pre-Islamicitwasexaggeratedbyits intersectionwiththe Islamicmodestycode of familyhonour,femalepurity,virginity, chastity,fidelity,andseclusion.”140 Abdulmuminielaborates: “Some have tried to dismiss the link between female circumcision and religion generally…This view totally ignores the most elementary aspects of Usul al-Figh (Islamic jurisprudence) generally and the methodology of deducing legal rules under Islamic law in 138 Nnamuchi (n133) 118 139 WHO, An Interagency Statement (n27) 6 Moreover, UK Faith Leaders have signed a declaration makingclear thatFGM is not a religious requirement and that none of the major faith groups support itthe practice.The UK Government hosted a Girl Summit on the 22 July 2014 which focussed on how to tackle FGM and forced marriage both domestically and internationally.Over 350 UK Faith Leaders and community activists have signed the declaration which was presented to Government Ministers atthe Summit. See: 28 Too Many, “Faith Leaders Declaration AgainstFGM and Forced Marriage”(2014) <> accessed 28/03/2015; UK Government, “Faith and community leaders unite to condemn FGM” Gov.UK (20 June 2014) <> accessed 28/03/2015 140 Mackie(1996) cited in Jenkinson (n10). See also Gerry Mackie, “Ending Footbindingand infibulation:A Convention Account” (1996) Vol.62(6) American Sociological Review999, 1005
  26. 26. 26 particular. Many Islamic scholars find support for female circumcision in the Qur’an and other Hadith.”141 For instance,the Hadith states:“A woman used to performcircumcision in Medina [Madina].TheProphet(peacebeupon him) said to her: “Do not cutseverely as thatis better forwomen and moredesirablefor a husband.”142 Thiswouldsuggestthatcuts mandatedbyreligionare notas extreme assome wouldsuggest.However,the supportfor these distinctionsislimitedandthe majorityof commentatorscategoricallydenythe existence of anysuchcomparisonorreligiousjustifications.143 Forinstance,Muhammad Munir asserts: “[T]he arguments given in support of FGM are either not reliable, are weak or do not order Muslimsto carry outthis practice. [The] practice is rooted in custom-come-cultural tradition or, is a matter of personal preference [but]cannot be legitimised under Islamic law.”144 Moreover,Sara Long’scritique of the argumentsforFGM, whichincludedthe ‘dialogue consensus,’145 concludedthatitcouldnotbe consideredatolerabletradition withinthe UK: “FGM was found to be so contrary to many of the fundamental morals and principles underlying western liberal society that theonly acceptableapproach can beto takea strong stance against the position”146 […]FGM is unacceptable in a society such as the UK where human rights, autonomy and equality are highly valued.”147 141 Abdulmumini A. Oba (n16) 4 142 Sunan Abu Dawud, Book 41 No. 5251 cited in Imad-ad-Dean Ahman and Sami A. Aldeeb Abu- Sahlieh,“To Mutilatein the Name of Jehovah or Allah:Legitimisation of Maleand Female Circumcision”(translation by Federick M. Hodges) (1994) Vol.13 Medicineand Law 575-622 143 Nnamuchi (n133) 92; See also:Long (n14) 180 144 Munir (n24) 1 145 This is the method is considered the most reliable when assessinga traditional practicewithin a multi-cultural society.Long (n14), 186 146 ibid 147 ibid 172
  27. 27. 27 Overall,“religionisnot…sufficientjustificationof FGM.”148 However, until there isamore concise theological positionthe practicingcommunitieswill feel the targetof ‘Western interference’149 andpromote itscontinuation asa“preservationof ethnicidentitytomarka distinctionfromother,non-practicinggroups.”150 Thislack of cooperationwithinthe practicingcommunitymeansthat Frontline Professionals (professionals) mustreportFGMin orderto combat the practice. However, reportingby professionals isalsolow.151 There isalackof awarenessamongstrelevant professionals of whomightbe atrisk or whohas undergone the procedure.152 Thereisalso uncertaintyaboutthe significance of ‘cultural’ or‘traditional’values153 andapprehension surroundingaccusationsof racism.154 Thisiscompoundedby anignorance surrounding theirobligations towardsvictims.155 DespiteMulti-AgencyGuidelines toreportinstancesof FGM,156 practitioners are unlikelyto doso. Thisreluctance toreporthas receivedfierce criticism.Forinstance,RichardGibbs states: “Cultural sensitivity has its place in tackling such crimes but any comparative study of this issue with other European countries throws into stark reality the impression that the 148 ibid 180 149 Shelly (n14) 134 150 WHO, An Interagency Statement (n27) 9 151 House of Commons Home Affairs Committee (n2) 14 152 ibid 14 153 Dias,Gerry and Burrage (n86) 154 ibid 155 Ministry of Justice: Female Genital Mutilation:Proposal to Introduce a Civil Protection Order, Summary of Responses (20 October 2014) 7 156 The Multi-Agency Guidelines:Female Genital Mutilation states:“FGM is a form of child-abuse and therefore, should be dealt with as part of existing child and adult safeguarding/protection structures, policies and procedures.” HM Government, Multi-Agency Practice Guidelines: Female Genital Mutilation (22 July 2014) 6 < encyPracticeGuidelinesNov14.pdf>accessed 17/02/ 2015; Gerry (n75)
  28. 28. 28 balancestruck,inadvertently,in favour of assuring fears that tackling the issue will inflame cultural or religious sensibilities.”157 On the otherhand,FGM CampaignerLeylaHussein158 hasdefended practitioners and criticisedthe guidelinesas“unsatisfactory”anddescribed theirimplementationas “disjointed”withadistinctlackof accountability.159 Ultimately,“advisoryguidelineshave failedtomake anyreal difference inthe wayinwhichagenciesdeal withFGM.”160 All of these factorshave resultedinthe lackof referralswhich hashinderedthe Act’sapplication. Overall,itisunlikelythatFGM will be reportedto a frontline practitioneranditisequally apparentthat a frontline practitionerisunlikelytoreportanyactivityeither.Therefore,the Act has remainedlargelydormant. Low levelsof reportingare compoundedbythe needtogatherevidence tosecure a prosecution. The Directorof PublicProsecutions hasacknowledgedthata prosecution wouldonlystanda chance of success“if the victimwaspreparedto go to court andgive evidence.”161 Aswithsexual assaultcases,aidsexistto assistvictimsingivingevidence.For instance,evidence maybe delivered viaweblink,frombehindascreenor bya video recordingandjudgesandbarristersmayremove theirgownsand wigs.162 157 Richard Gibbs, “The Hardest Cut? Richard Gibbs writes on the horror that hides behind the veil of ‘cultural sensitivity’(2014) 127 Criminal Lawand JusticeWeekly 176 158 Leyla Hussein is an activeanti-FGMcampaigner.In 2013 she brought the issueof FGM into the public home with her involvement in the Channel 4 documentary “The Cruel Cut” (n23). She has been awarded Cosmopolitan Ultimatecampaigner Women of the Year Award 2010 and currently received Emma Humphrey Award on her work on FGM and violenceagainstwomen/children. In 2011 she won the Emma Humphrey Award. See: <> accessed 03/02/2015 159 Topping (n89) 160 Charlotte McLeod, “Ending FGM in the UK: Failures of the pastand hope for the future” (Policy Exchange, 14 February 2014) accessed 17/07/2014 161 House of Commons Home Affairs Committee (n2) 15 162 ibid
  29. 29. 29 Nevertheless,avictimmaybe unwillingtogive evidencethatcouldincriminateher family.163 Section.169(2) of the SeriousOrganisedCrime andPolice Act2005 allowsthe court to issue acourt summons and compel avictimto testify if twoconditionsare met:164 “if a person is likely to be able to give evidence likely to be material evidence, or produce any document or thing likely to be material evidence for the purpose of any criminal proceedings before the court [and] “the court needs to be satisfied that it is in the interests of justice so to do.”165 However,the prospectof givingevidence couldbe tootraumaticforthe victimresultingin “the risk to the victim[being] sogreatthatit isnot intheirinterestforthe prosecutionto go ahead.”166 Moreover,anyevidence offeredbythe victimmaybe unreliable due totheir age or inabilitytoidentifythe ‘cutter’.167 Oftenthe “traumaticnature of the act” means that victimsare unable toprovide thiskeyinformation.168 Furthermore, the practicing community andthe victim’srelativesare unlikelytoprovide evidence willingly.Instead, investigatorsare confrontedwitha‘communitywall of silence.’169 Alternatively,“prosecutorsshouldconsider the needforanexpertwitness.”170 However, thissource of evidence has provedunreliable. 163 ibid 14 164 Section.169(2) Where a justiceof the peace is satisfied that— “(a)any person in England or Wales is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, at the summary trial of an information or hearing of a complaint by a magistrates' court, and (b)it is in the interests of justice to issue a summons under this subsection to secure the attendance of that person to give evidence or produce the document or thing, the justice shall issue a summons directed to that person requiring him to attend before the court at the time and place appointed in the summons to give evidence or to produce the document or thing.” 165Crown Prosecution Service, Prosecution Policy and Guidance:Witness Summons and Warrants. accessed 26/03/2015 166 House of Commons Home Affairs Committee (n2) 13 167 ibid 168 ibid 14 169 ibid 13 170CPS (n165) Female Genital Mutilation,Evidential Considerations,ExpertWitnesses. <> accessed 26/03/2015
  30. 30. 30 To date,the onlyreportedcase involvingFGM171 isthe civil law case of Leeds City Council v M, F,B, G [2015].172 Thisconcernedtwochildren,B,aboy,and G, a girl.The issue was whetherornot G, age 3, had beensubjecttoFGM.173 Duringthe proceedingsmedical evidence wasprovidedbythree ‘expertwitnesses’:DrAlisonShare,aConsultant CommunityPaediatrician;174 DrComfortMomah MBE, a registeredMidwife175 and ProfessorSarahCreighton,aConsultantObstetricianandGynaecologist176 andConsultant AdolescentGynaecologist.177 BothDrShare and Dr Momah acknowledgedthe limitsof their expertise.Forinstance,DrMomah’sprimaryexpertisewasinrelationtochildrenrather than infantsandDr Share,despite havingexpertiseinchildsexualabuse,didnotdeclare herself tobe a medical expertinFGM.178 Nevertheless,the overall standardof evidence was troubling. On the one hand,Sir JamesMunby,Presidentof the FamilyDivision,describedProfessor Creighton’sevidence asclear,consistentandcarryingconviction179 onthe other,he criticisedDrShare’sas: “[W]ell below the standard required of a medical expert […] demonstrating a lack of awareness and training within the medical profession on the issue of FGM [and was] confused contradictory and wholly unreliable.”180 171 Felicity Gerry, “Expert evidence in FGM Cases”(2015) Vol.179 Criminal Lawand JusticeWeekly, <>accessed 26/03/2015 172 Leeds City Council v M, F, B, G [2015] EWFC 3 173 ibid para 4 174 At St James’s University Hospital Leeds. 175 Dr Momah is employed by Guy’s and St Thomas Hospital NHS Foundation Trustin London. Also, sheis not a medical doctor; her doctorate is an honorary doctorate from Middlesex University. 176 At University College Hospital in London. 177 At Great Ormond Street Hospital. 178 Leeds (n172) para 17 179 ibid para 46 180 ibid para 42
  31. 31. 31 He alsocondemnedDrMomah’sreport as “worse thanuseless”181 andsubmittedthat: “neitherDrShare norDr Momah has beenable togive a clear,accurate or consistent account of what theythoughttheywere seeingwhenexaminingG.”182 Inconsistencies includedthe physical descriptionsof the child’sgenitalsandwhetherthe WHOor UNICED FGM typologywasusedtocategorise the injuries.183 Moreover,itisparticularlytroubling that bothDr Momah and Dr Share had completedphysical examinations of Gwhile ProfessorCreightonviewedthe examinationviaavideo yetherevidence wasconsidered the most reliable.184 Inshort, Munby observed thatthere is“a dearthof medical expertsin thisarea, particularlyinrelationtoFGMin youngchildren”185 and“there isan awareness problemanda needformore educationandtrainingof medical professionals,including paediatrics.”186 He furtheremphasised the needforconsistencyinthe understandingof the typesof FGM187 and that the WHO classificationshouldbe usedasstandard.188 Furthermore,careful planningof the processof examinationisrequiredtoensure thatan expertisinstructedatthe earliestopportunity:189 “referrals should be made as early as possible to one of the specialist FGM clinics [and]]an examination recorded with the use of a colposcope so that the images can be reviewed subsequently by an appropriate expert.”190 Finally,itisvital thatthose performingthe examinationaccuratelyrecordtheir observations191 andclearly diagnose the type of FGMobserved.192 181 ibid para 45 182 ibid para 48 183 ibid para 22 184 Ibid para 31 and 46 185 ibid para 79 and paras 27-28.At present there are only 12 specialistFGMclinicsthroughoutthe country, of which six arein London. The University CollegeHospital is theonly specialistpaediatric FGM clinicin the country. 186 ibid para 79 187 ibid 188 ibid 189 ibid 190 ibid
  32. 32. 32 Moreover, incivil law the burdenof proof ison the “balance of probabilities”;alower thresholdthandemandedbythe criminal courts.Nevertheless,itcannotbe assertedthat everycase of FGM will experience similardifficulties. Munbydescribedthe case as“unusual and complex.”193 Moreover,the type of suspected FGMwasverysubtle- itwasallegedthat the victimhad a small scar nearher clitoris andhadsufferedaType 4 FGM (WHO classification).194 Therefore, determiningFGMin thisinstance wouldbe more difficultthan establishingthe occurrence of another.However,if Munby’s recommendationsfor improvingthe gatheringanddeliveryof medical evidence are entertained,the process shouldbecome standardisedandincrease itsreliability.Therefore,the abilityto successfullyidentifyFGMand prosecute acase wouldbe increased. Additional challengesincludethe procurementof evidence whenthe procedure is committedabroad.195 Referredtoas“the cuttingseason”school holidayssee asurge inthe numberof girlstakenabroad andsubjectedtoFGM.196 Furthermore,whilethe practice is traditionallyinstigatedbythe victim’sfemalerelativesitcannotbe assumedthatthe parent performedthe actual mutilation.197 Thiscombinedwiththe reluctanceorinability of victims to identifythe cuttershasledtothe authoritiesbeingunable tomountaprosecution.198 Therefore,there isthe forensicchallenge toprove a) whoinflictedthe injuryandb)who 191 ibid.Including,makinguseof diagrams and drawings where appropriate. 192 ibid;For further commentary of the case see: For further readingsee: Gerry (n171) 193 Leeds para 2 194 ibid para 30 However, the scar’s actual position and even existence was a main point of disputeand inconsistency amongthe witnesses. 195 House of Commons Home Affairs Committee (n2) 14 196 Rocco Blume, “Cutting season’heightens threat for girls atrisk of FGM” PlanUK (25 July 2014) < FGM/> accessed 05/12/2014. Plan is a global children’s charity.Its campaign,“BecauseI am a girl”,works towards ending violence againstgirlswith a focus of forced/child marriages and FGM.< am-a-girl/about-because-i-am-a-girl/>accessed 05/12/2014 197 Dias,Gerry and Burrage (n86); Richard Gibbs (n157) 177 198 Dias ibid;Gibbs ibid.
  33. 33. 33 was partyto it.199 Asthe Intercollegiate Group200 have criticised:“The law doesnotsee FGM as a criminal derelictionof parents’andguardians’dutytoprotecttheirchildren.”201 Withoutthe initial reportingof anoffence,the opportunitytoconductan investigationis reduced.Equally,the reduced evidencegatheringcombinedwithalackof expertwitnesses has made the investigationandprosecutionof FGMdifficult.Consequently,the failed enforcementof the Act hasnullifiedit.202 Overall,the failureof the 2003 Act can be attributedtofourfactors.Firstly,those most likelytoreportthe offence are reluctanttodoso. Secondly,alackof trainingand awarenessamongprofessionalshasresultedinthisabuse goingundetectedand unchallenged.Thirdly,there isalackof specialistexpertwitnesseswithinthe fieldof FGM and fourthly,there isaperceiveddouble standardamongUKlaw resultinginhostilityand resentmenttowardsit.Collectively,these factorshave allowedthe 2003 Act to remain dormant. Prosecutionsare essential:203 “Without evidence that FGM will be robustly prosecuted, the law’s deterrent effect is nullified…If there’s a genuine prospect of…those involved in the mutilation[being] sent to prison, a rigorously enforced FGM law would have a serious deterrent effect.”204 199Dias ibid;Felicity Gerry,“FGM-Let’s Talk About Vaginas”Criminal Lawand JusticeWeekly (11 July 2013) < About-Vaginas> accessed 13/08/ 2014 200 IntercollegiateGroup, “TacklingFGM in the UK: IntercollegiateRecommendations for identifying, recording,and reporting” (London, Royal College of Midwives,2013) The IntercollegiateGroup is made up of: Royal College of Midwives,Equality Now, Royal Collegeof Obstetricians & Gynaecologists,Community Practitioners' and Health Visitors' Association and the Royal College of Nursing 201 IntercollegiateGroup cited in House of Commons Home Affairs Committee (n2) 39 202 Dias,Gerry and Burrage (n86) 203 BHRC, To the Parliamentary Inquiry (n3) 4 A rigorous prosecution systemwould assistin bringingthe UK in-linewith its international obligations:“States must not only respond to FGM but respond in an effective way. Passing legislation, as the UK has done, remains an insufficient response if implementation is not effective in practice.”
  34. 34. 34 However,the UKis alsorequired tocreate an “effectiveanti-mutilationmechanismthat operatesina multi-level andmulti-agencyway(legal,administrative,educational, health).”205 Furthermore, EfuaDorkenoo,OBE,206 hasassertedthatpractice measuresmust comprise of legal andnon-legal mechanismsthatforma “joined-upsystemwithafocuson protection,preventionandprosecution.”207 Inshort:“there needstobe a proper understandingthatthe lawdoesnotoperate inisolationfrom the widercommunity.”208 Therefore,combatingFGMwill require acombinedeffortof law enforcement,education, awarenessraisingcampaignsandcommunityengagementprogrammesthatfocuson changingattitudesandempoweringpeople tochallenge the practice.Itisagainstthis backdropthat the provisionsof the Bill are evaluated. 204 Dias,Gerry and Burrage (n86) See also:International Association of Women Policecited in House of Commons Home Affairs (n2) 12: “A successful prosecution […] could assist women within affected communities to resist pressure to subject their daughters to FGM” and the Parliamentary Under Secretary of State for Public Health: “[A prosecution] would send an important signal that the law is taken seriously and will be enforced.” 205 BHRC, To the Parliamentary Inquiry (n3) 4 206Efua Dorkenoo (1945-2014) was an avid anti-FGMcampaigner and has been referred to as the “mother of the worldwide movement to end FGM.” The Guardian,“Efua Dorkenoo Obituary” The Guardian (22 October 2014) < dorkenoo#img-1> accessed 24/03/2015; Efua Dorkenoo was a Ghanaian-British campaigner againstfemalegenital mutilation (FGM) who pioneered the global movement to end the practiceand worked internationally for more than 30 years to see the campaign "move from a problem lackingin recognition to a key issuefor governments around the world." BBC News World,“Efua Dorkenoo remembered: My Mother, mentor and wisdom” BBC News (27 October 2014) <> accessed 02/02/2014 207 Efua Dorkenoo, OBE (6 September 1949 – 18 October 2014) cited in Topping (n89) 208 Dias,Gerry and Burrage (n86)
  35. 35. 35 Chapter3: The SeriousCrimesBill [HL] 2014-15 The Bill seekstoremedy the failingof the Actbymakingit more proactive through: extendingitsprotectiontothose withoutsecure immigrationstatus;offeringlifelong anonymityfora victim;introducingparental liability;introducingFGMPOs209 andimposing mandatoryreportingby professionals. The “jurisdictional loophole”inthe 2003 Act “allowedchildreninthe UKwithoutsecure immigrationstatus,tobe takenoverseesandmutilated.”210 Chairwomanof the BHRC, KirstyBrimlownoted:“Thisgapinthe law isindefensibleandfailstoreflectthe highly mobile nature of the affectedcommunities.”211 Tocombat this,Clause.69(1)(b)212 of the Bill amendsSection.4of the Act andextendsthe jurisdictiontocoverprohibitedacts committedabroadbya UK citizenora personwhois resident213 in the UK.214 Section.3of the Act215 is alsoamendedtocoveracts of FGM performedona UK national or resident.216 Thisamendmentbringsthe UKin line withitsobligationunderthe Istanbul Convention217 andhasbeenwellreceived.Forinstance,FelicityGerrynoted:“it[was] absurdthat FGM law[didnot] not apply [tonon-Britishnationals].”218 However,this extensionof jurisdictionwill onlybe fruitfulif the legislationisappliedinpractice. 209 Female Genital Mutilation Protection Orders 210 Kirsty Brimelowand Zimran Samuel, “UK is failingto meet international obligations on FGM” 42 Bedford Row (10 March 2014) < obligations-on-fgm/>accessed 01/08/ 2014 211 ibid 212 Clause.69,Offence of female genital mutilation:extra-territorial acts 213 “UK resident” is defined in Clause.69(1)(c) as an individual who is “habitually resident in the UK.” 214 Clause69(1)(b) “in section 4 (extension of sections 1 to 3 to extra-territorial acts), in subsection (1) omit “permanent”” 215 The offence of assistinga non-UK person to mutilate a girl’s genitalia overseas. 216 Clause69(1)(a) “in section 3 (offence of assisting non-UK person to mutilate overseas a girl’s genitalia), in subsections (1) and (2)(a) omit “permanent”” See also:Home Office, “Serious Crime Bill FactSheet- Female Genital Mutilation”(November 2014) < t_-_Serious_Crime_Bill_overview_-_Commons_Intro.pdf> accessed 20/01/2015 217 House of Commons Home Affairs Committee (n2) 37 218 Dias,Gerry and Burrage (86)
  36. 36. 36 Promisingly,the Bill’sotherprovisionsincrease the likelihoodof aprosecutionandpromote prevention. A majorhurdle forvictimsinseekinghelpwasthe backlashthatan accusationwouldhave on theirfamily.219 Therefore,Clause.70of the Bill prohibitsthe publicationof any informationthatmightleadtothe identificationof avictim.220 A victim’sanonymitywill commence once an allegationhasbeenmade andlastthe duration theirlifetime.221 This provisionissimilartothe anonymityprovided tovictimsof sexual offencesunder the Sexual Offences(Amendment) Act1992.222 Therefore,the provisionwouldbringthe protectionof FGMvictimsinline withotherabuse legislationandcomplementexistingaids designedtoempowervictimstogive evidence.223 Overall,anonymity wouldnotonly protectthe victimbut encourage hertoreport the offence andgive evidence.224 However, anonymityisnotextendedtopeople otherthanthe victim.Therefore,community memberswill remain unwillingorunable toreportan offence.225 To lessenthis burden,Clause.71(2) instructsthat“if an offenceof FGM is committed againsta girl underthe ageof 16, each person who is responsibleforthe girl at the time thatFGM occurred will be guilty of an offence.”226 The maximumpenaltyforthiswill be 219 Tina Rosenberg (n81) 220 Clause.70 “Anonymity for victims of female genital mutilation (1) After section 4 of the Female Genital Mutilation Act 2003 insert- “4A Anonymity of victims Schedule 1 provides for the anonymity of persons against whom a female genital mutilation offence (as defined in the schedule) is alleged to have been committed.” 221 Clause.70(2) “Schedule 1- Anonymity of Victims…(2) “No matter likely to lead members of the public to identify the person, as the person against whom the offence is alleged to have been committed, may be included in any publication during the person’s lifetime.” 222 Sexual Offences (Amendment) Act 1992 Section.1(1)(a) and Section.2(1)(a) 223 For instance,a girl would not only be ableto give evidence privately or from behind a screen but would have increased confidencethat her identity would remain anonymous to the wider community thus reducing apprehension in the victim. 224 Home Office,Serious Crime Bill FactSheet (n216) 225 See Chapter 2 226 Under Clause.71(2),An adultis held responsiblefor a girl ageover 18 where the person “has assumed (and not relinquished) responsibility for caring for the girl in the manner of a parent.”
  37. 37. 37 sevenyears’imprisonment,afine orboth.227 To be ‘responsible’ forthe girl the personwill holdparental responsibilityandhave ‘frequentcontact’withher.228 Where the victimis aged18 or overa personwill be ‘legallyresponsible’forherif theyhave assumed responsibilityforhercare “in the mannerof a parent.”229 The Clause hasbeenwell received by commentators whopreviouslycriticised the lackof parental responsibility.Forinstance, the Intercollegiate Group230 onFGMnoted: “there isthe needtoshiftresponsibilityonto parents.”231 Thiswill notonly deterparentsfromthe practice butwouldmake themmore vigilanttothe riskpresentedbyothercommunitymemberswhopromote the practice.232 However,there isconcernthatparentscouldbe prosecutedforan offence thatthey neithersanctionednorinstigated.AsDiasnoted:“Sometimesmutilationsare atthe instigationof membersof the widerfamilygroupandcontraryto a parent’swish.”233 This, as Richard Gibbsarguedinhiscritique of Frenchlegislation,may“putthe parentsin jeopardyof beingprosecutedforsomethingthattheyhadnotagreedto or acquiesced in.”234 However, itisa defence if:“[A]ttherelevanttime, they [the defendant] did notthink thatthere wasa significantrisk of FGM being committed,and could not reasonably have been expected to be awarethatthere wasany such risk, or (b) they tooksuch stepsas he or she could reasonably havebeen expected to taketo protectthe girl frombeing the victim of FGM.”235 Furthermore,the requirementfor“frequentcontact”ensuresthata person, who 227 Clause.72(1)(4) “(a) on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine (or both), (b) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine (or both).” 228 Home Office,Serious Crime Bill FactSheet (n216). Where the victimis under 16 responsibility attaches itself to the persons with parental responsibility to the child For instance,mothers, fathers married to the mothers at the time of birth and guardians. 229Home Office,Serious Crime Bill FactSheet (n216). For instance,if the child is visitingother relatives they will assumeresponsibility to protect the child from risk. 230 The IntercollegiateGroup is made up of: Royal College of Midwives,Equality Now, Royal College of Obstetricians & Gynaecologists,Community Practitioners' ,Health Visitors' Association and the Royal College of Nursing. 231 IntercollegiateGroup cited in House of Commons Home Affairs Committee (n2) 39 232 Gibbs (n157) 177 233 Dias,Gerry and Burrage (86) 234 Gibbs (n157) 176 235 Section 71(2) After section 3 insert-
  38. 38. 38 has legal parental responsibilityforagirl buthas little orno contact withher,wouldnotbe liable.236 Finally,the requirementthatthe personshouldbe in loco parentis isintendedto ensure thata personwhois lookingafteragirl for a veryshort periodwouldnotface liability.237 Similarly,inthe 1970’s France was confrontedwith“aninabilitytomountprosecutionsand the complete inabilityandrefusalof some sectionsof acommunitytodisclose the identitiesof childmutilators.”238 Inresponse,the Frenchauthoritiescriminalisedactsof omission.239 Since 1979 France has achievedmore than40 prosecutionsresultinginthe punishmentof over100 parentsand ‘cutters.’240 Thisdemonstratesthatsimilarlegislation may workinthe UK. However,this successmaybe “partlydue to a highvolume of mutilatedwomenandgirls”inFrance.241 Furthermore,while the provisionhasplayed“a vital role inencouragingparentstoabandonthe practice,”242 there are keydifferences betweenthe French andUK legal systems. “(5) it is a defence for the defendant to show that- (a) A]t the relevant time, they did not think that there was a significant risk of FGM being committed, and could not reasonably have been expected to be aware that there was any such risk, or (b) ; or they took such steps as he or she could reasonably have been expected to take to protect the girl from being the victim of FGM” Home Office,Serious Crime Bill FactSheet (n216) 236 Home Office,Serious Crime Bill FactSheet (n216) 237 ibid 238 Gibbs (n157) 176 239 Failureto assista person in danger of FGM can resultin a heavy fine or imprisonment. UCL Graduate Law Society cited in Barrister Linda Weil-Curiel cited in Houseof Commons Home Affairs (n2) 16 240 House of Commons Home Affairs Committee (n2) 16 241 Gerry (n199); The European Institute for Gender Equality in their 2014 Report: “A prevalence study (published in 2007) found that up to 61,000 women older than 18 years living in France might have been subjected to FGM. This number does not take into account the undocumented population, nor does it take into consideration the population under 18 years old that might be at risk of FGM. European Institute for Gender Equality:Current Situation for Female Genital Mutilation in France (PublicationsOffice,2014) 3 < %20female%20genital%20mutilation%20in%20France_EN.pdf> accessed 30/03/2015 242 Barrister Linda Weil-Curiel cited in House of Commons Home Affairs Committee (n2) 16
  39. 39. 39 Firstly,France hasno specificlawsagainstFGM.Instead,perpetratorsare prosecutedunder the general provisionsof the Criminal PenalCode. 243 Inparticular,Articles221−2, 222−3 and 222−5, refertoacts of torture and barbarity244 and Articles 222−9 and 222−10 which referto intendedbodilyharmcausingpermanentinfirmityormutilation. 245 Furthermore, committingFGMon a minorisconsideredanaggravatingcircumstance andincreasesthe penalty.246 AccordingtoPolderman,the decisiontonotenact specificlegislationagainst FGM wasdesignedtominimise the risk of stigmatisingpractisingcommunities.247 Secondly,PoldermanhasattributedFrance’ssuccess totheir“practice of prosecutingthese casesin the highestcriminal courts”and“the fact that civil societyorganisation(CSO) can playa keyrole in prosecutionsandtherefore,are notwhollydependentonthe public prosecutor.”248 The European Institute forGenderEquality hasnoted:“The additionof a specialistCSOhas assistedprosecutionsin France.”249 Thirdly,theirNational ActionPlanonViolence againstWomen2011−2013 addressedFGM specifically andprovidedadetailedsetof budgetedmeasuresanddevolvedthe authority for itsimplementationtothe Regional DirectoratesforWomen’sRights andEquality.250 Combinedwithafocuson“strong educational andawarenessraisingcampaigns”251 this decentralisedapproachtowardsprosecution,preventionandprotectionhasaidedFrance’s 243 Gibbs (n157) 177; UCL Graduate Law Society cited in House of Commons Home Affairs Committee (n2)16 244 European Institute for Gender Equality,FGM in France (n241)1 245 ibid 246 ibid 247 Sophie Polderman, “Combating Female Genital Mutilation in Europe: A ComparativeAnalysis of Legislation and Preventative Tools in the Netherlands, France, the United Kingdom and Austria ” (2006) Unpublished Master’s Thesis,University of Vienna, 36 < content/uploads/vor2013/grundlagen/SPoldermansFGMinEurope.pdf>accessed 21/02/2015 248 ibid 249 European Institute for Gender Equality:Good Practices in combatingfemale genital mutilation (Luxembourg: PublicationsOfficeof the European Union, 2013) 18 < nital%20mutilation.pdf>accessed 30/03/2015 250 The authority to implement this was devolved to Regional Directorates for Women’s Rights and Equality. European Institute for Gender Equality,FGM in France (n241) 3 251 Avalos (n24) 47
  40. 40. 40 abilitytoeffectivelytackle FGM.Incontrast,the UK’s“Case for a national actionplan”was onlypublishedinJune 2014.252 Fourthly,the Frenchsystemalsoincludesamandatorygenital examinationof girlsunder the age of six253 andimposesadutyon medical andsocial workerstoreportcasesof FGM.254 However,despite the IntercollegiateGrouprecommendingasimilarprovision,255 the UK Governmenthasbeenreluctanttoimplementsuchprocedures.256 Forinstance,the ChildrenandFamiliesMinister, EdwardTimpson, describedthe checksas:“A hugely intrusive practice uponyounggirls.”257 Nevertheless,France’s“no-nonsenseapproach” beenpraisedforthe reductioninthe practice aswell asthe increasedprosecutionrate.258 While the successof the Frenchapproach isappealing;“todate,nostudyhas been publishedthatwouldprovide afullyreliable andexhaustive chronologyof FGMcourt cases 252 House of Commons Home Affairs Committee (n2) 253 ibid 16 254 “In France, general law with regard to professional secrecy and disclosure may be applied to report cases of performed or planned FGM. Article 226−14 of the Penal Code concerns medical and social workers and other professionals usually bound by secrecy. They are requested to report physical or psychological abuse perpetrated against children or persons unable to protect themselves due to their age or incapacity. The same applies to physical or psychological abuse noticed by a physician within the frame of their daily practice and supporting the strong presumption that physical, sexual or psychological violence has been perpetrated against the patient. Sexual mutilations have been explicitly categorised as physical abuses. In the same line, Article 44 of the Code of Medical Ethics, annexed to the Code of the Public Health, states that physical or psychological abuses should be reported to the appropriate (medical, social or legal) authorities, although protective measures have to be taken with 'caution and discernment'.” European Institute for Gender Equality,FGM in France (n241) 2 255 RCM, RCN, RCOG, Equality Now, UNITE, TacklingFGM in the UK: Intercollegiate Recommendations for identifying, recordingand reporting (London: The Royal College of Midwives, 2013) <> accessed 05/10/2014 “[…] it is important to underline the principle that in specific institutions where there is a suspicion that girls have undergone FGM, FGM assessments and medical examinations are helpful and it should not be seen as abusive to undertake such examinations […] In the experience of the Royal College of Paediatricians and Child Health (RCPCH) Child Protection Standing Committee, children and their parents do not find such examination traumatic” 256For instance,the House of Commons Home Affairs Committee (n2) 17 concluded that: “it would be a disproportionate response to introduce such a universal system in the UK.” 257 ibid 16 258 Felicity Gerry, QC interviewed in a Channel 4 Documentary, “The Cruel Cut” (n23)
  41. 41. 41 since the firstone wasreportedin1979.”259 Therefore,itis hard to determinewhich activitiesare the mosteffective inFrance andergowhichshouldbe mimicked. Furthermore, underthe DomesticViolence,Crime andVictimsAct2004 (2004 Act) a duty of care alreadyexiststowards adultsinahouseholdwith childrenorvulnerable adults. Therefore,the needforafurther legislation canbe questioned.Section.5(1) of the 2004 Act createsan offence of causingorallowingthe deathof a childorvulnerable adult“asa result of the unlawfulactof a person”260 who“wasa memberof thesame household as V”261 “had frequentcontactwithhim”262 andthat “at the time of that act there wasa significantrisk of seriousphysical harmbeing caused to V by the unlawfulactof such a person”where ‘V’isa childor vulnerableperson.263 The 2004 Act was intendedtoapplyin situationswhere itisclearthatone of a numberof adultsina householdisresponsiblefor the deathof a childbutit cannot be provedwhichadultisresponsible.264 Under Section.5(6) “act”“includes a course of conductand also includes omission.”However,the provisionwasextendedin2012 to “cover causing orallowing serious physicalharm (equivalentto grievousbodily harm) to a child or vulnerableadult.”265 Therefore,the provisioncouldencompassFGMandis a possible avenue forprosecution.266 Moreover,the 2004 Act doesnotrequire the prosecutortoprove whichhouseholdmemberwas responsible forthe death.Rather, they needonlyprove thatthe personchargedwas aware,or oughtto have beenaware,of a foreseeablerisktothe victim, andfailedtotake 259 European Institute for Gender Quality,Good Practices in combatingFGM (n249) 18 260Domestic Violence, Crime and Victims Act 2004 Section.5(1)(a) 261ibid Section.5(1)(a)(i).‘V’ refers to the Victim 262ibid Section.(5)(1)(a)(ii) 263ibid Section.5(1)(c) 264 Explanatory Notes to the Domestic Violence, Crime and Victims (Amendment) Act 2012.Para 4 265 ibid Para 5; Domestic Violence, Crime and Victims (Amendment) Act 2012 Chapter 4: “An Act to amend section 5 of the Domestic Violence, Crime and Victims Act 2004 to include serious harm to a child or vulnerable adult; to make consequential amendments to the Act; and for connected purposes.” 266 Avalos (n24) 55
  42. 42. 42 protective measurestocombatthe risk.267 Accordingto Avalos, thisActcouldbe usedto secure a prosecutionagainstparents who‘allow’FGMto occur on theirchildwhere itcan be shownthat: “a) a girl faced a significantrisk of FGM, (b) therisk to FGM wasforeseeableto the parent charged,(c) theparentcharged (i) wasawareoroughtto havebeen aware,of the risk to the girl and (ii) failed to protectthe girl fromrisk.”268 However,she alsonotesthatthe reachof the 2004 Act is limited.269 Firstly,allowingserious bodilyharmto occur carriesa maximumsentence of 10 years270 whichis fouryearsless than the 2003 Act.271 Moreover,the act that leadsto the deathor seriousbodilyinjury musthave beencommittedbyanotherhouseholdmember.272 Therefore,there wouldbe no perpetratorif the childwassubjecttoFGM outside of the household.273 Furthermore,it isunclearwhetheritcouldbe appliedtoparentswhoarrange to have FGM performed overseas.274 Therefore,the 2004 Act islimitedincomparisontothe 2003 Act. Nevertheless, the lack of prosecutionbyeitherprovisionrendersbothActsineffective atcombatingFGM and more suitable legislationisrequired. Overall,‘parental liability’hasshiftedthe debate away fromwhomutilatedagirl to why she had not beenprotected.275 Castingthe netwiderinthiswayincreasesthe chance of a 267 Explanatory Notes to the Domestic Violence, Crime and Victims (Amendment) Act 2012.Para 8 268 Avalos (n24) 55 269 ibid 56 270 Explanatory Notes to the Domestic Violence, Crime and Victims (Amendment) Act 2012.Para 9 271 Female Genital Mutilation Act2003 Section.5 “A person guilty of an offence under this Act is liable— (a)on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both)” 272 Domestic Violence Crimes and Victims Act 2004 Section.5(1)(a)(ii) However, under Section.5(7) where the unlawful actresults in the death of ‘v’: “A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding 14 years or to a fine, or to both.” 273 Avalos (n24) 56 274 The Domestic Violence Crimes and Victims Act 2004 is silentin relation to acts covered outwit the UK. See: Avalos (n24) 56 275 Under the Female Genital Mutilation 2003 Act, where a child is found to have been mutilated, itis the forensic challengeto prove a) who inflicted the injury and/or b) who was party to it.
  43. 43. 43 prosecution276 andalleviatesthe needforavictimto give evidence oridentifywho performedorinstigatedthe procedure. Overall,the Clausewill aidprosecutions andactas a deterrenttoperpetrators.277 To add furtherteethtothe legislationthe BHRC recommendedthe introductionof FGMPOs to improve the UK’sabilitytotackle FGM.278 In July2014 the Prime Minister,David Cameron,launchedaconsultationintointroducingaspecificcivillaw measure forthe protectionof victimsand potential victimsof FGM.279 In line withthe BHRC recommendation he assertedthatthe remedywouldbe closelymodelledonforced marriage protectionorders (FMPO) available underthe ForcedMarriages(Civil Protection) Act 2007 (2007 Act).280 Accordingto the BHRC: “An obvious overlap exists between FGM and Forced Marriage. Both are human rights violations inflicted on some of the most vulnerable girls. Both intervene in the sexuality of young women. Both remove the autonomy and seek to control. Sometimes FGM and [FM] go hand in hand.”281 KirstyBrimelow,elaborates: “Presently,the UKlacks sufficiently tailored or targeted legal powers to assist in intervening in cases where FGM is suspected…a victim-centred approach was at the heart of the See: Dias,Gerry and Burrage (n86) 276 Barrister Linda Weil-Curiel cited in House of Commons Home Affairs Committee (n2) 16 277 See the Children and Families AcrossBorders,the only non-government organisation in the UK set up specifically to deal with child protection cases which involvethe UK and one or more countries. Cited in House of Commons Home Affairs Committee (n2) 39; See also:Dias,Gerry and Burrage (n86) 278 The recommendation was the firstin a listof twelve recommendations. BHRC, Report to the Parliamentary Inquiry (n3) 3 279 The Consultation soughtcommentary on the particularsof such a provision and its application in practice.Ministry of Justice(n155) 280 In Scotland,the relevant Act is the Forced Marriage(Protection and Jurisdiction)(Scotland) Act 2011; ibid 5 281 BHRC, To the Parliamentary Enquiry (n3) 4
  44. 44. 44 parliamentary discussions that led to the... [2007 Act]…similar considerations should be applied to the current debate.”282 Such an orderwouldbe:“(1)‘victim-centric’,directedatprotection of the child…(2) flexible and capable of beingtailoredtothe specificfactsof the case;(3) neverthelessbacked by criminal sanctionforbreach…tofocusthe child’scarerson theirdutyto protect.”283 Both the MuslimWomen’sNetworkandthe ACPOconcur“such acts have beenusedmore than 600 timestodate.”284 The introductionandsuccessfulapplicationof forcedmarriage protectionordersreceivedconsiderable praise285 andwithinitsfirstyearof enforcement286 86 protectionordershadbeenissued287 increasingto339 bythe endof June 2011.288 Furthermore,85%of the consultation’srespondentssupportedthe introductionof asimilar civil protectionorderforFGM.289 Clause.72(2) of the Bill provides thatthe Courtmaymake an FGMPO onan applicationby the potential victim, arelevantthirdparty,orbyany other personwiththe leave of the Court.There are alsocircumstanceswherebythe courtmaymake an orderwithoutsuchan applicationwhere: “a) any other family proceedingsarebeforethe court(“the currentproceedings”), 282 Brimelow and Samuel (n210); See also:Ministry of Justice(155) 5 283 BHRC, To the Parliamentary Enquiry (n3) 3 284 House of Commons Home Affairs Committee (n2) 39 285 John Fotheringham has praised theorders as being“scarcely limited atall.” John Fotheringham, “Forcing: the issues”(2012) The Journal of the Law Society of Scotland <>accessed 28/02/ 2014 Furthermore, FirstMinister Nicola Sturgeon (then Deputy FirstMinister),speakingduringa visitto the Shakti Women’s Aid in Edinburgh, praised the protection orders for “confining abusive behaviour to the history books [and] providing flexible legal support to allow victims to take control and get their lives back on track.” Moreover, ElaineMcLaughlin fromHermat Gryffe Women’s Aid commended the Government for “confronting a unique, anxious and difficult cultural situation.” Cited in BBC News Scotland,‘Bill aims to end forced marriages in Scotland’,(BBC News Scotland,30 September 2010) availableat<> accessed 01 March 2014 286 Forced Marriages (Civil Protection) Act 2007 came into force in November 2008 287 Strickland,P.Forced marriage - Commons Library Standard Note, (SN/HA/1003,London: House of Commons, 2012) 288 Home Office(2011) Forced Marriage- A Consultation.London: Home Office 289 Ministry of Justice(n155) 5