Legislation should provide that if a victim dies due to FGM, the perpetrator should be prosecuted under the murder statutes of the penal code. The specific law on FGM should provide a term of imprisonment and fine which is no less severe than what is provided under the murder statutes of the general penal code.
The laws of Kenya, Burkina Faso, Senegal, Togo and Benin provide for increased penalties when a victim dies due to FGM.
If in the process of committing an offense under subsection (1) a person causes the death of another, then that person shall on conviction be liable to imprisonment for life.
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. Should [the FGM] result in death, the punishment shall be five to ten years’ imprisonment. (Emphasis Added).
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).
Article 3. Anyone who with traditional or modern methods has promoted or practiced female genital mutilation or has participated in it is guilty of assault on the person of the circumcised.
Article 4. Any person who is guilty of assault within the meaning of Article 3 shall be punished by two months to five years imprisonment and a fine of 100,000 to 1,000,000 francs, or one of these two penalties. The penalty will be doubled for repeat offenders.
Article 5. If mutilation caused the death of the victim, the guilty will be punished with 5 to 10 years imprisonment. (Emphasis Added).
Article 4: Any person who has performed a genital mutilation of any kind on a person of the female gender is liable to imprisonment for a term of six months to three years and to a fine of one hundred thousand to two million francs.
Article 5: When genital mutilation is performed on a minor under the age of 18, the perpetrator is liable to imprisonment for a term of three to five years and a fine not exceeding three million francs.
Article 6: If a victim dies, the offender is liable to five to twenty years of forced labour and to a fine of three million to six million francs.
BUT NOTE: The law of Benin provides a less severe penalty than the maximum penalty for murder, which is the death penalty. This may be the case for many countries in which FGM is prevalent; however, we do not advocate for the death penalty, so its existence should be taken into account when providing enhanced sentences for FGM. With that in mind, sentences should be reflective of the severity of the crime and, if FGM results in death, sentences should be enhanced.