Female genital mutilation and designer vaginas in Britain: crafting an effective legal and policy framework.

AuthorAvalos, Lisa R.
PositionIntroduction through IV. Creating an Enabling Legal and Policy Environment for Addressing FGM B. Legal Measures 1. Two Approaches to Prosecuting FGM: General Versus Specific Criminal Laws a. Does the Approach Taken Make a Difference?, p. 621-664

ABSTRACT

The prevalence of female genital mutilation (FGM) in Britain and Europe has grown in recent years as a result of international migration, and European institutions have grown increasingly concerned with eradicating the practice. According to the European Parliament, approximately 500,000 girls and women living in Europe have undergone FGM and are suffering with the lifelong consequences of the procedure, and more than 30,000 girls in Britain are thought to be at risk of future FGM. Although Britain strengthened its law against FGM in 2003, the number of girls at risk continues to grow, and there have been no convictions for FGM in England and Wales. This Article examines Britain's legal and policy approach to FGM, analyzing key gaps in British law that allow girls at risk to go unprotected and giving a range of policy suggestions for closing these gaps. The Article also gives particular attention to the relationship between FGM and so-called "designer vagina" surgeries, addressing the double standard whereby FGM is prohibited by law while designer vagina surgery has been allowed to flourish. The Article concludes with legal and policy recommendations for increasing protection against FGM and for coordinating the approach to FGM and designer vagina surgery. In particular, it proposes a Model FGM law that is much more robust than Britain's current FGM law and provides additional opportunities to protect those at risk and to prosecute those who facilitate or carry out FGM.

TABLE OF CONTENTS I. INTRODUCTION II. THE LEGISLATIVE CONTEXT A. International Human Rights and FGM B. The Law in England and Wales C. European Union Action Against FGM D. Council of Europe: The Istanbul Convention E. United Nations Action Against FGM: The UN FGM Resolution III. OBSTACLES TO ENDING FGM IN THE UK A. Gaps in the Legislation 1. The Need to Define Female Genital Mutilation and Criminalize Reinfibulation 2. Female Cosmetic Genital Surgery and the FGM Act 3. No Extraterritorial Prosecution of Non-UK Citizens and Permanent Residents Who Have Ties to the UK 4. No Professional Duty to Report FGM 5. Lack of Clarity With Respect to FGM and Asylum Protection 6. Additional Examples of Confusing Language B. Additional Obstacles to Ending FGM in Britain 1. Overemphasis on Achieving a Prosecution 2. Lack of Robust Statistical Data on FGM 3. Cultural Obstacles Within Communities that Perpetuate FGM 4. The Practical Impact of the FGM Statutory Regime on Women and Girls in the UK 5. Professionals' Lack of Preparedness to Appropriately Intervene in FGM Cases IV. CREATING AN ENABLING LEGAL AND POLICY ENVIRONMENT FOR ADDRESSING FGM A. A United Kingdom National Action Plan to End FGM B. Legal Measures 1. Two Approaches to Prosecuting FGM: General Versus Specific Criminal Laws 2. Revising the FGM Act 3. FGM Prosecution Under the Domestic Violence, Crime and Victims Act of 2004 (DVCV Act) C. Working with Communities 1. The Female Genital Mutilation Initiative (Initiative) 2. Telephone Helpline for FGM 3. The Health Passport 4. Establish a National Advisory Board Comprised of Individuals from Affected Communities D. Competency Building Among Relevant Professionals 1. Teachers 2. Health Professionals 3. Other Professionals 4. Cultural Sensitivity and Human Rights E. Provision of Specialist Health Services to FGM Survivors F. Coordination of International Efforts Against FGM V. DESIGNER VAGINAS A. Female Genital Cosmetic Surgery and the FGM Act B. Harmful Effects of FGCS and Lack of Robust Data C. Could FGCS Ever Be Necessary for Mental Health? D. Remedying Distress Caused by "a Perception of Abnormality": Cosmetic Surgery or Education? E. A DOUBLE STANDARD FOR FGM AND FGCS? F. Differences Between FGCS and FGM G. RCOG and BritSPAG Guidance on FGCS: A Changing Landscape VI. CONCLUSIONS AND RECOMMENDATIONS A. Recommendations for Strengthening the Legal Framework Against FGM B. Recommendations for Working with Communities C. Recommendations for Working with Professionals D. International Efforts Against FGM E. Female Genital Cosmetic Surgery and FGM VII. APPENDIX: MODEL FGM ACT I. INTRODUCTION

In March of 2014, Dr. Dhanuson Dharmasena was charged with carrying out female genital mutilation (FGM) on a patient at Whittington Hospital in north London. (1) Less than two months later, a thirty-eight-year-old woman was arrested at Heathrow airport for conspiracy to commit FGM. (2) The woman was a British national who was born in Sierra Leone and had just arrived at Heathrow on a flight from Sierra Leone. (3) She was travelling with a thirteen-year-old Sierra Leonean girl who was taken into the care of social services at the time of the woman's arrest. (4) These actions were Britain's first-ever attempts to prosecute someone for performing FGM despite the fact that FGM has been prohibited by law since 1985. FGM is usually associated with a range of countries, primarily in Africa, but it has become a serious concern in western countries as immigrants from FGM-affected countries have brought the practice with them.

FGM in the West is not an isolated and infrequent occurrence. Approximately 500,000 girls and women living in Europe have undergone FGM and are suffering with the lifelong consequences of the procedure (5) and more than 30,000 girls in Britain are thought to be at risk of FGM. (6) Since 2009, nearly 4,000 patients have been treated at hospitals across London for FGM-related complications. (7) The British Crime Survey has recorded over one hundred instances of FGM annually since it began tracking this crime in early 2008. (8) In addition to its prevalence, those who speak out against FGM face harassment, intimidation, and even death threats for their actions. (9) For example, Efua Dorkenoo, Senior Advisor to Equality Now on FGM, (10) has received death threats aimed at stopping her from speaking out against FGM. (11) Dorkenoo states that the backlash against women who speak out against FGM is getting more extreme: "It's getting worse for young girls because social media means they can be threatened and harassed by people outside of their community, including by family members back in Africa who are told what they're doing." (12) Accordingly, FGM is a serious problem in the UK, and concern is growing over the fact that there has not yet been a prosecution for FGM. (13)

The potential prosecutions described above represent one prong of the British government's recent efforts to more effectively combat FGM, but prosecutions alone cannot effectively curtail a cultural phenomenon as complex and entrenched as FGM. In December 2013, a parliamentary committee was convened to address what other measures were needed in the fight against FGM in the UK--an action that implicitly recognized that a range of strategies was necessary. (14) At a time when international organizations have heightened efforts to end FGM and countries such as Ireland, Uganda, and Kenya have strengthened their anti-FGM laws, (15) it is critical to consider how Britain's approach to FGM might be strengthened.

This Article analyzes Britain's legal and policy framework on FGM. It examines the key gaps in Britain's approach that allow FGM to continue and gives a range of policy suggestions for closing these gaps. Part II of the Article briefly sets out the legislative context, reviewing British laws that are relevant to FGM as well as resolutions and other materials from the European Union, the Council of Europe, and the United Nations. Part III then identifies specific weaknesses in the existing legal framework and also explores other obstacles to ending FGM in Britain. It particularly examines the need for better research and data collection, and it discusses a range of obstacles to ending FGM, particularly cultural obstacles in communities and barriers that prevent professionals who come into contact with those at risk from intervening effectively.

Part IV explores how Britain can create an enabling policy and legal environment for ending FGM, and it makes a range of recommendations. The recommendations include adopting a national action plan on FGM, using existing domestic violence legislation more effectively, and revising and strengthening the existing law against FGM. With respect to the latter, the Article includes a model FGM law and explains the rationale behind each aspect of the model law. Part IV also includes recommendations for working with communities, building competency among professionals, and coordinating international efforts against FGM.

Part V examines the relationship between FGM and female genital cosmetic surgery (FGCS) or "designer vaginas," considering how legal and policy approaches to these two issues should be coordinated given the similarity in the procedures. The Article concludes with a set of recommendations for strengthening Britain's legal and policy approach to FGM.

  1. THE LEGISLATIVE CONTEXT

    This section provides a brief overview of the laws, resolutions, and other measures that provide the context for Britain's actions against FGM. It begins with a consideration of how FGM is regarded by international human rights treaties and then examines the positions and actions taken against FGM by Britain, the European Union, the Council of Europe, and the United Nations.

    1. International Human Rights and FGM

      FGM violates the human rights of women and girls as embodied in the British Human Rights Act (HRA), the European Convention on Human Rights (ECHR), the EU Charter on Fundamental Rights, and in international treaties such as Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights ICESCR), the Convention on the Rights of the Child (CRC), and the Convention Against Torture (CAT). In particular, FGM violates the right to physical and mental integrity; (16) the right to the highest...

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