QUICK ESCAPE FROM SITE

Clear definitions of harmful practices and broad liability

Clear Definitions of Harmful Practices
Drafters should ensure that the prohibited harmful practices as well as the categories of people who may be liable or responsible under the law are clearly defined in the law.

Legislation should provide for broad liability against those who condone, endorse, participate in or perform a harmful practice including family members, traditional and religious leaders, doctors and other person perpetrating the harmful practice. 

Aiding and Abetting

Legislation should provide that accomplices who aid and abet the perpetration of harmful practices shall be punished in the same manner as the practitioner of the harmful practice. Legislation should define “accomplice” to include: 

  • those who bring a girl or woman to the individual who performs the harmful practice;
  • those who request the practice to be performed or assist, advise, or procure support for anybody to carry out the practice;
  • religious, customary and tribal leaders who promote or endorse harmful practices against a woman or girl; and
  • parents or other family members who perpetrate or aid and abet the perpetration of a harmful practice.   

Prohibition of Medicalization

 Certain harmful practices, such as female genital mutilation and prenatal sex selection, are increasingly being perpetuated by medical practitioners. Drafters should recognize that having these procedures completed by a medical practitioner does not legitimize the harmful practice or make it safer. Harm still results and the underlying discrimination against women is perpetuated. Medical personnel should be explicitly prohibited from performing these and other harmful practices and should face enhanced penalties and loss of their license for performing a harmful practice.

  • Legislation should prohibit the medicalization of any form of harmful practice. 
  • Legislation should explicitly state that there is no medical benefit to harmful practices and prohibit medical professionals from conducting any form of harmful practice.   
  • Legislation should provide for increased penalties for health providers who perform a harmful practice and the practitioner shall be prohibited from practicing his or her profession for a period of time.
  • Legislation should explicitly prohibit the medical sector from re-infibulation or “re-closing” a woman after childbirth to her pre-delivery infibulated state. 
  • In addition, both Burkina Faso and Senegal increase penalties for medical professionals who practice FGM. 
    • Burkina Faso Penal Code, Art. 381:
      The maximum punishment shall be meted out if the guilty party is a member of the medical or paramedical profession. Moreover, he or she may be disbarred from practice by the courts for up to five years.     
    • Penal Code of Senegal (27.02.1999), Art. 299 bis:
      …The maximum punishment shall apply when [the] sexual mutilations have been practiced or facilitated by a member of the medical or paramedical profession….
    • The Pre-Natal Diagnostic Techniques (PNDT) Act of 1994 (and amendments) in India was enacted to curb the growing trend of diagnostic techniques being misused to facilitate sex selective abortions. The Act prohibits and penalizes medical practitioners or any person who owns a Genetic Counseling Centre, a Genetic Laboratory, a Genetic Clinic, or is employed in any such Centre, Laboratory or Clinic from using pre-natal diagnostic technology to determine and disclose the sex of a fetus. 

Punishment of Parents or Family Members

Parents or family members are frequently the perpetrator of harmful practices. Parents often perform or seek out a practitioner to perform female genital mutilation on their daughters. In the case of breast ironing, it is often the mother who performs the act in an effort to keep her daughter from looking like she is entering puberty. Punishment or sanctions should include parents and family members who aid and abet in the harmful practice. However, consideration should be given first and foremost to the best interests of the child. Prison sentences, large fines, or long separations may have a serious impact on the child.  

Legislation should provide for criminal liability of parents, family members and others who:

  • Perform a harmful practice;
  • Instruct, incite, support or otherwise aid and abet others in subjecting a woman or girl to a harmful practice; and/or
  • Fail to report the risk or occurrence of a woman or girl being subjected to a harmful practice.

The section on Female Genital Mutilation contains examples of country laws that provide for liability for parents and family members who perform or aid and abet an act of female genital mutilation. 

However, some countries in their sentencing policies and practice focus on the “the best interests of the child” as the guiding principle when assessing criminal liability for parents who procure female genital mutilation for their daughters. Imposing long prison sentences may cause a greater burden for the child. Other penalties may be sought for parents in those cases. France, for example, has prosecuted parents for obtaining female genital mutilation for their daughters, but generally criminal penalties have not been assigned. Instead, the most severe penalties have been imposed on the practitioner while parents received a lighter or suspended sentence and served little or no jail time.

Efforts should be made to change the underlying beliefs that perpetuate harmful practices and empower girls, women and their families to resist the societal pressures to pursue such harmful practices. 

Examples:

France: The French criminal court (Cour d’Assises) has prosecuted several cases of FGM since 1991 under Article 222. In 1999, France prosecuted a Malian woman named Hawa Greou for performing FGM on 48 girls. The court also prosecuted 26 parents who brought their daughters to Hawa Greou for the procedure. Greou received a prison term of eight years, and the parents received terms ranging from a three-year suspended sentence to two years in prison. (BBC, World: Europe: Woman Jailed for 48 Circumcisions, 17 February 1999)


Denmark: In 2009, a Danish County Court charged the parents of three girls under section 245A of the Danish Criminal Code. The parents were prosecuted for bringing two daughters to Sudan for a female circumcision and for intending to bring a third daughter to be circumcised. The father was acquitted but the mother was convicted and sentenced to two years in prison. The court, however, suspended 1 year and 6 months of the two year sentence with a period of three years probation and required the mother to pay compensation to each of the three daughters. (Government of Denmark, First Case Regarding Female Genital Mutilation, United Nations Secretary-General’s Database on Violence against Women 2009)