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Clear definition of crime and liability

  • Legislation should state that any person who violates or attempts to violate the physical integrity of the female genitalia shall be subject to criminal penalties. 
  • Legislation should specifically state that re-infibulation, “re-closing” a woman after child birth to her pre-delivery infibulated state, is illegal and should not be performed by health professionals or any other practitioner.
  • When drafting laws that explicitly criminalize FGM, drafters should clearly define the criminal activity (see Classifications above) as well who will be subject to liability, and explicitly include parents and family members of victims among those subject to criminal liability.  Certain countries merely state that the practice of FGM is prohibited, but because FGM takes different forms (See Classifications above), it is often unclear what exactly is deemed a crime and who is liable.

Illustrative Examples of Criminal Code Definitions:

2. . . . “female genital mutilation” comprises all procedures involving partial or total removal of the female genitalia or other injury to the female genital organs, or any harmful procedure to the female genitalia, for non-medial reason, and includes –

(a) clitoridectomy, which is the partial or total removal of the clitoris or the prepuce;

(b) excision, which is the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora;

(c) infibulation, which is the narrowing of the vaginal orifice with the creation of a covering seal by cutting and appositioning the labia minora or the labia majora, with or without excision of the clitoris, . . . 

  • The Criminal Code of Ghana (sec. 69A) is specific in its criminalization of FGM: 
    (1) Whoever excises, infibulates or otherwise mutilates the whole or any part of the labia minora, labia majora and the clitoris of another person commits an offence and shall be guilty of a second degree felony and liable on conviction to imprisonment of not less than three years.

     (2) For the purposes of this section ‘excise’ means to remove the prepuce, the clitoris and all or part of the labia minora; ‘infibulate’ includes excision and the additional removal of the labia majora.
             
  • Burkina Faso Penal Code, Art. 380:
    Anyone who harms the female genital organs by total ablation, excision, infibulation, desensitization or any other means shall be punishable by six months to three years’ imprisonment and a fine ranging from CFA francs 150,000 to 900,000 or by one of these two punishments only. . . .

Anyone who damages or attempts to damage the integrity of the female genital organ by total or partial removal or one or more of its elements, by infibulation, desentisation or any other means, shall be punishable by imprisonment ranging from six months to five years. The maximum punishment shall apply when these sexual mutilations have been practised or facilitated by a member of the medical or paramedical profession. When they have caused death, the penalty of hard labour for life shall always be applied. The same penalties shall apply to any person who, through gifts, promises, influence, threat, intimidation, abuse of authority or power, caused such genital mutilations to happen or instructs others to practise them.

Aggravated assault
268.(1) Everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

Punishment
(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Excision
(3) For greater certainty, in this section, “wounds” or “maims” includes to excise, infibulate or mutilate, in whole or in part, the labia majora, labia minora or clitoris of a person, except where

(a) a surgical procedure is performed, by a person duly qualified by provincial law to practise medicine, for the benefit of the physical health of the person or for the purpose of that person having normal reproductive functions or normal sexual appearance or function; or

(b) the person is at least eighteen years of age and there is no resulting bodily harm.

Consent
(4) For the purposes of this section . . . , no consent to the excision, infibulation or mutilation, in whole or in part, of the labia majora, labia minora or clitoris of a person is valid, except in the cases described in paragraphs (3)(a) and (b).

1 Offence of female genital mutilation
(1) A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris.

(2) But no offence is committed by an approved person who performs—

(a) a surgical operation on a girl which is necessary for her physical or mental health, or

(b) 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.

(3) The following are approved persons—

(a) in relation to an operation falling within subsection (2)(a), a registered medical practitioner,

(b) in relation to an operation falling within subsection (2)(b), a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife.

(4) There is also no offence committed by a person who—

(a) performs a surgical operation falling within subsection (2)(a) or (b) outside the United Kingdom, and
(b) in relation to such an operation exercises functions corresponding to those of an approved person.

(5) For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual.

  • California Penal Code, sec. 273.4(b):  
    ‘Female genital mutilation’ means the excision or infibulation of the labia majora, labia minora, clitoris, or vulva, performed for nonmedical purposes.

Punishment of Parents, Family Members and Others

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

  • Perform FGM;
  • Instruct or incite others to subject a woman or girl to FGM;
  • Fail to report the risk or occurrence of FGM.

(See Aiding and Abetting and Duty to Report section below.)

Illustrative Examples:

(1) Who knowingly circumcises, excises, or infibulates, in whole or in part, the labia majora, labia minora, or clitoris of a female under 18 years of age;      

(2) Who is a parent, guardian, or has immediate custody or control of a female under 18 years of age and knowingly consents to or permits the circumcision, excision, or infibulation, in whole or in part, of the labia majora, labia minora, or clitoris of such female; or  

(3) Who knowingly removes or causes or permits the removal of a female under 18 years of age from this state for the purpose of circumcising, excising, or infibulating, in whole or in part, the labia majora, labia minora, or clitoris of such female shall be guilty of female genital mutilation.     

(b) A person convicted of female genital mutilation shall be punished by imprisonment for not less than five nor more than 20 years.  

(c) This Code section shall not apply to procedures performed by or under the direction of a physician, a registered professional nurse, a certified nurse midwife, or a licensed practical nurse licensed pursuant to Chapter 34 or 26, respectively, of Title 43 when necessary to preserve the physical health of the female. This Code section shall also not apply to any autopsy or limited dissection as defined by Code Section 45-16-21 which is conducted in accordance with Article 2 of Chapter 16 of Title 45. 

(d) Consent of the female under 18 years of age or the parent, guardian, or custodian of the female under 18 years of age shall not be a defense to the offense of female genital mutilation. Religion, ritual, custom, or standard practice shall not be a defense to the offense of female genital mutilation. 

(e) The statutory privileges provided by Chapter 9 of Title 24 shall not apply to proceedings in which one of the parties to the privilege is charged with a crime against a female under 18 years of age, but such person shall be compellable to give evidence only on the specific act for which the defendant is charged.  (Emphasis added).

  • Penal Code of Senegal (27.02.1999), Art. 299 bis:
    Anyone who damages or attempts to damage the integrity of the female genital organ by total or partial removal or one or more of its elements, by infibulation, desentisation or any other means, shall be punishable by imprisonment ranging from six months to five years. The maximum punishment shall apply when these sexual mutilations have been practised or facilitated by a member of the medical or paramedical profession. When they have caused death, the penalty of hard labour for life shall always be applied. The same penalties shall apply to any person who, through gifts, promises, influence, threat, intimidation, abuse of authority or power, caused such genital mutilations to happen or instructs others to practise them. (Emphasis Added). 

Several countries or states have laws that expand liability to “any” individual. Such language could be used to hold parents and family members potentially criminally liable for the practice of FGM.  See the following examples: 

However, some countries in their sentencing policies and practice focus on maintaining the “the best interests of the child” as the guiding principle when assessing criminal liability for parents who procure FGM 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 FGM 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 serve little or no jail time.

Illustrative Examples of punishment of parents

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 female genital mutilation and for intending to bring a third daughter for female genital mutilation.” 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. (Response of the Government of Denmark to questionnaire on Beijing +15 (2009), First Case Regarding Female Genital Mutilation, United Nations Secretary-General’s Database on Violence against Women)

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