Drafters should develop a criminal law explicitly prohibiting the practice of all forms of FGM. This law should be implemented in conjunction with community education and advocacy programs to create the broader changes to social norms and individual beliefs in which the practice of FGM is so firmly entrenched. Laws criminalizing the practice of FGM, when used with other forms of advocacy and broader governmental strategies to change social norms, can help influence social change. Political and community support for the laws as well as appropriate enforcement and implementation, however, is vital to the effectiveness of any law.
The Government shall take steps to the maximum of its available resources to –
(a) protect women and girls from female genital mutilation;
(b) provide support services to victims of female genital mutilation;
(c) undertake public education and sensitise the people of Kenya on the dangers and adverse effects of female genital mutilation.
While legislation criminalizing FGM should, ideally, specifically prohibit the practice of FGM, it is possible to address the practice with criminal law provisions that include FGM.
France has had success prosecuting cases of FGM under general provisions in the French Penal Code, which provides penalties for violent acts that result in a “mutilation” or “permanent disability.” These penalties are increased for acts committed against a minor under 15 years of age.
Although Liberia does not have a law that criminalizes FGM specifically, a woman successfully sued two women who abducted her from home and forcibly subjected her to FGM in January 2010. The victim’s ethnic group does not practice FGM but many groups in Liberia do. The victim received threats for initiating the criminal case against her abductors. In July 2010, after one month of hearings, a jury found the two women guilty of kidnapping, felonious restraint, and theft. See: Liberian Jury Delivers “Guilty” Verdict on Ruth Berry Peal’s Case, Equality Now, 11 July 2011.
Use of a general criminal provision to prosecute cases of FGM may work in France because the government has made an effort to educate the public about the serious criminal nature of the practice or in cases like the one in Liberia, where crimes go beyond FGM itself. However, in other countries where FGM has traditionally been allowed or where FGM occurs without an additional criminal act, it may be ineffective to suddenly begin to use general criminal law provisions to start prosecuting behavior that has otherwise been tolerated. Enacting new legislation that explicitly prohibits the practice of FGM accompanied by a public education campaign will more effectively inform people of the criminal consequences of the practice and more clearly define the criminal behavior itself.
Criminal legislation in countries where FGM is predominately practiced by an immigrant group must be accompanied by education and empowerment programs to avoid harassment or further ostracizing that group from the larger community. Leaders and community members of those immigrant groups should be consulted and fully involved in such educational programs as well as in the implementation of legislation drafted against FGM. In addition, drafters should define the crime of FGM in a way that avoids subjecting individuals convicted of the practice to deportation.
Next Topic Clear definition of crime and liability