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Mitigation

Legislation should provide that no form of mitigation shall be allowed as a defense to FGM.  The defense of culture, honor or religion should be specifically prohibited. 

Illustrative Examples:

(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.  (Emphasis Added). 

(1) It is not an offence against section 32 [Offence to perform female genital mutilation] if the performance of the female genital mutilation is by a surgical operation which is-

(a) necessary for the health of the person on whom it is performed and  which is performed by a medical practitioner; or

(b) is performed on a person in labour or who has just given birth, and for medical purposes or the relief of physical symptoms connected with that labour or birth, and which is performed by a medical practitioner or a midwife; or

(c) is a sexual reassignment procedure which is performed by a medical practitioner.

(2) For the purposes of subsection (1)(a), in determining whether an operation is necessary for the health of a person, the only matters to be taken into account are those relevant to the medical welfare or the relief of physical symptoms of the person. (Emphasis Added).

  • New Zealand: Crimes Act 1961 No. 43, sec. 204A (Female Genital Mutilation), Para. 4:
    In determining, for the purposes of subsection (3), whether or not any medical or surgical procedure is performed on any person for the benefit of that person's physical or mental health, no account shall be taken of the effect on that person of any belief on the part of that person or any other person that the procedure is necessary or desirable as, or as part of, a cultural, religious, or other custom or practice. (Emphasis Added).

In determining, for purposes of subsection (3)(a) of this section, whether or not any surgical procedure is performed on any person for the benefit of that person's physical or mental health, no account shall be taken of the effect on that person of any belief on the part of that person or any other person that the procedure is necessary or desirable as, or as part of, a cultural, religious, or other custom or practice.

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