Stokoe Partnership Solicitor Ali Hussain on the background and legislation relating to Female Genital Mutilation.

Description and Classification:
Female Genital Mutilation (FGM) is a term for a range of procedures which “involve partial or total removal of the external female genitalia for non-medical reasons” and is sometimes called “female circumcision” or “female genital cutting”. Sir James Munby, President of the Family Division of the High Court, in a recent case, outlined the different classifications of FGM:

“Female genital mutilation is classified into four major types.
1 Clitoridectomy: partial or total removal of the clitoris (a small, sensitive and erectile part of the female genitals) and, in very rare cases, only the prepuce (the fold of skin surrounding the clitoris). 
2 Excision: partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (the labia are “the lips” that surround the vagina).
3 Infibulation: narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the inner, or outer, labia, with or without removal of the clitoris.
4 Other: all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.”

History and Cultural Beliefs:
FGM is thought to have existed in Ancient Egypt and experts argue that the practice has origins in cultural rather than religious traditions (Gill, 2014). Although largely associated with Islam, Muslim countries including Morocco, Afghanistan and Saudi Arabia do not practice FGM. There is also some evidence that Christians and Jews have practiced FGM.

FGM is a deeply entrenched social convention. It is believed that conformity leads to finding a husband for the girl but failure to adhere to the practice can lead to a loss of social status, honour and protection, resulting in the family’s social exclusion from the community

Research shows that beliefs associated with FGM usually revolve around traditions concerning the rite of passage into womanhood . In some cultures FGM is seen to ensure some form of social acceptance through preserving a woman’s virginity and thus protecting her family’s honour . It follows that FGM is performed so that women conform to longstanding socio-economic norms. Not circumcising a daughter is equivalent to condemning her to a life of isolation as it shames her and her entire family .

Risks of FGM:
FGM is associated with a variety of health risks including severe pain, bleeding, shock, infection, difficulty in passing urine and faeces. There are also associated birth risks, such as delivering the baby through Caesarean section, blood loss and increased perinatal mortality. Women who have undergone FGM are more likely to experience pain during sexual intercourse, reduction in sexual satisfaction and reduction in sexual desire compared to women who have not been subjected to FGM .

Prevalence of FGM:
Although the practice is in decline, due to educational campaigns and legislative changes, it is believed that approximately 100-140 million women worldwide have undergone some form of FGM . In Africa alone the figure is believed to be in the region of 91.5 million with 3 million girls are risk each year . FGM as been documented in 28 sub-Saharan countries as well as a number of countries in Southeast Asia and the Middle East . In 2011 the number of affected women in England and Wales who were born in countries where FGM is practiced, was 103,000 for the 15-49 age group and 24,000 for the over 50 age group while a further 10,000 girls in the 0-14 age group had undergone the practice or were at risk. This means that 127,000 women had undergone FGM and 10,000 girls below the age of 14 who had undergone or were at risk of FGM were permanent residents in England and Wales in 2011, compared with an estimated) 66,000 in 2001 . Recent research shows that the tradition of FGM is often abandoned by people who are now living in Western countries .

Criminal offences in the UK
FGM has been a specific criminal offence in the UK since 1985, when the Prohibition of Female Circumcision Act 1985 was introduced. However, this Act did not cover cases where girls, who were settled in the UK, were taken abroad for FGM. This ‘loophole’ was closed by the Female Genital Mutilation Act 2003 which came into force on 3 March 2004.

Section 1 of the 2003 Act is in the following terms:

1 
”(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.”

Section 4 provides:

4 (1) Sections 1 to 3 extend to any act done outside the United Kingdom by a United Kingdom national or permanent United Kingdom resident.
(2) If an offence under this Act is committed outside the United Kingdom—
(a) proceedings may be taken, and
(b) the offence may for incidental purposes be treated as having been committed, in any place in England and Wales or Northern Ireland.

Section 6(1) provides that “Girl includes woman.”

The maximum sentence, for a person found guilty under the 200 Act is 14 years imprisonment in the Crown Court and 6 months imprisonment in the Magistrates Court.

 

Ali Hussain is a specialist criminal law solicitor at Stokoe Partnership Solicitors. He acted in defending Hasan Mohamed, jointly accused with Dr Dhanuson Dharmasena of female genital mutilation (FGM) in the first prosecution of its kind in the UK. Dr Aisha K. Gill, Reader in criminology at the University of Roehampton, contributed the overview of the present state of the law surrounding FGM in England and Wales.