Female Genital Mutilation

Page1 The Bar Review 2014 *115 Female Genital Mutilation Caroline Bergin-Cross BL* Subject: Criminal law Keywords: Female genital mutilation; Ireland; Prosecutions; Female Genital Mutilation (FGM) is recognised internationally as a clear form of domestic violence against women and girls. The UK Crown Prosecution Service is currently prosecuting its first claim for FGM since the enactment of the Female Genital Mutilation Act (UK) 2003. The Irish equivalent is the Criminal Justice (Female Genital Mutilation) Act 2012,1which is closely mirrored on the UK legislation. FGM constitutes torture and cruel, inhuman or degrading treatment as affirmed by international jurisprudence and legal doctrine, including by many of the UN treaty monitoring bodies, the Special Procedures of the Human Rights Council, and the European Court of Human Rights. To expel or return a girl or woman to a country where she would be subjected to FGM would amount to a breach by the State concerned of its obligations under international human rights law. On foot of major campaigning by AkiDwA, the network of African and migrant women in Ireland, the Oireachtas recently enacted The Criminal Justice (Female Genital Mutilation) Act 2012,2which had been in the making in one form or another for over ten years. Prior to this in Ireland, FGM was recognised as a form of persecution and may lead to a grant of asylum in certain circumstances. Implementation of best practice gender guidelines in the Irish asylum process will allow for improved practices in assessing gender-related claims of persecution. It is hoped The Criminal Justice (Female Genital Mutilation) Act 2012 will lead to the increased investigation and persecution of this crime. FGM reflects deep-rooted inequality between the sexes, and constitutes an extreme form of discrimination against women. It is not necessarily an offence committed by men on women, as women also commit the offence. However, it is regularly carried out on minors and is a violation of the rights of children. The practice violates a person's rights to health, security and physical integrity, the right to be free from torture and cruel, inhuman or degrading treatment, and the right to life when the procedure results in death. Labour Senator Ivana Bacik, who had first proposed The Criminal Justice (Female Genital Mutilation) Bill 2011, said that the legislation had been long overdue. For example, in the U.K., FGM has been a specific criminal offence since 1985, with the introduction of the Prohibition of Female Circumcision Act 1985. At an international level, Article 38 of the Istanbul Convention has also recognised the seriousness of the offence and the need for lawmakers to have a statutory framework in place to tackle the problem. Furthermore, over 3,000 women living in Ireland are believed to have undergone FGM. To illustrate, of females aged between 15-49, an estimated 98% of Somalian, 19% of Nigerian, and 90% of Sudanese girls and females undergo FGM. “International research shows the enormous dangers to the health of women and girls represented by the barbaric practice of female genital mutilation,” said Senator Bacik. “This is a pressing issue in this country, particularly for migrant women and girls and their families”.3Figures show as many as 140 million women and girls have been subjected to FGM worldwide, with an estimated 8,000 new cases every day. Prior to the enactment of the Criminal Justice (Female Genital Mutilation) Act 2012, the Irish Page2 Government had taken a firm position against FGM in African countries which receive Irish state aid, however, there has been somewhat of a delay in their acknowledgement of FGM as a domestic issue. In this regard, it is worth noting that no evidence exists that FGM has been or is practiced on Irish soil, anecdotal evidence suggests that parents originally from practicing communities are experiencing pressure to have their daughters undergo FGM during visits to their country of origin. This point is significant in that the Act now provides a strong rationale for those parents to explain that they could be prosecuted on their return to Ireland. The Act is modelled on the UK Female Genital Mutilation Act 2003, wherein, the legislation has failed to yet lead to a completed prosecution, appearing to have a largely symbolic and perhaps deterrent value. The first prosecution either in Ireland or the U.K. in respect of FGM is currently being brought by the UK Crown's Prosecution Service against Dr. Dhanoum Dharmasena, from the Whittington Hospital in London, and Hasan Mohamed, who is not a medic. It is alleged that Dr. Dharmasena carried out a procedure on a female patient who had given birth in November, and that Mr. Mohamed had encouraged and helped Dr. Dharmasena contrary to s.1(1) of the Female Genital Mutilation Act (UK) 2003. This case will be closely watched in Ireland. Mr. Mohammad is charged on two counts — one charge of intentionally encouraging an offence of FGM, contrary to s.44(1) of the Serious Crime Act 2007, and a second charge of aiding, abetting, counselling or procuring Dr. Dharmasena to commit an offence countrary to s.51(1) of the UK 2003 Act. The passing of the Criminal Justice (Female Genital Mutilation) Act 2012 in Ireland now brings Ireland in line with a number of other EU Members States that have developed specific criminal legislation on FGM. Sections 2, 3 and 4 of The Criminal Justice (Female Genital Mutilation) Act 2012 clearly outlines what is regarded as an offence of FGM for the purposes of the Act, and in accordance with international law Section 5 makes it a hybrid offence. Therefore, if a person *116 is found guilty of FGM on indictment, such person can face a maximum of 14 years imprisonment.4 At present, one can only speculate as to the effect, ambit and protections the Act will produce. However, the prosecution by the UK Crown Prosecution Service of Dr. Dhanoum Dharmasena and Hasan Mohamed will most probably provide much guidance to Irish lawyers as to how Criminal Justice (Female Genital Mutilation) Act 2012 will be interpreted and applied. The trial will be held at Westminster Magistrates' Court in April 2015. The Irish legislation is an extremely important development in the protection of the human rights of women and girls who may be or have undergone female circumcision. The Act helps prevent the occurrence of FGM procedures in Ireland, thereby stop the damaging effects it causes on women, girls and female babies, for example, severe bleeding and problems urinating, and later cysts, infections, infertility as well as complications in childbirth and increased risk of newborn deaths. FGM constitutes an extreme form of discrimination against women, and replicates deep-rooted inequality between the sexes. Minors are generally, in particular from certain ethnic backgrounds, forced to undergo this horrific and needless procedure, which represents a violation of the rights of children. The Act, in criminalizing FGM, epitomizes a females' right to be free from torture and cruelty, inhuman or degrading treatment, and the right to life when the procedure results in death. The practice also violates a person's rights to physical integrity, security, and health. The 2012 Act strengthens the human rights of females and shows that Ireland will not be jurisdiction that will permit such an act on Irish soil or that will tolerate the transport of any girl out of the country for the purpose of undergoing the procedure. FGM is a form of persecution from which women and girls are now provided protection for under Irish law. While laws banning FGM as a form of persecution will not alone end the outdated customary practice, the Act reflects Irelands' disapproval of female genital mutilation and will support the global struggle against it. The Bar Review 2014, 5, 115-116 Page3 *. BCL (UCD), LLM Commercial (UCD), BL. 1. S.I. 11 of 2012. 2. S.I. 11 of 2012. 3. http://www.thejournal.ie/female-genital-mutilation-officially-banned-in-ireland-399. 4. Section 5(b) of The Criminal Justice (Female Genital Mutilation) Act 2012. © The Bar Council and Law Library Services Ltd.