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

• Author: Avalos, Lisa R.
• Position: 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 b. Why France Has Been Successful in Prosecuting FGM through VII. Appendix: Model FGM Act, with footnotes, p. 664-706

2. Why France Has Been Successful in Prosecuting FGM

   France chose to prohibit FGM through the general criminal law because a working group appointed to research this issue determined that a specific statute would have been too narrow, would have merely been symbolic, and would risk stigmatizing the particular ethnic groups that practice FGM. (206) The main elements of France's success in prosecuting FGM include their practice of prosecuting these cases in the country's highest criminal court, (207) the fact that civil society organizations can play a key role in prosecutions, such that prosecutions are not wholly dependent on the public prosecutor, (208) and France's policy of affording FGM cases substantial publicity in order to make examples out of certain perpetrators. (209)

   One civil society organization--the Commission for the Abolition of Sexual Mutilations (CAMS)--has been particularly involved in the prosecution of FGM in France. CAMS' director, attorney Linda Weil-Curiel, has played a direct role in all but two of the one hundred FGM convictions that have been achieved in France. (210) Her dedication to the cause of prosecuting FGM may be the most significant factor distinguishing FGM prosecutions in France from those in other western countries. (211)

   In addition to France's efforts to prosecute FGM, the country also focuses on prevention through strong educational and awareness campaigns. (212) Some physicians, for instance, display the relevant provisions of the criminal code in their offices. In addition, the French approach involves routine genital exams as part of normal preventive health care for children through age six. (213) Critics of France's practice of routine genital exams argue that conducting such exams simply causes families to delay the age at which FGM is carried out. (214) However, one answer to this argument is that if the age of FGM is delayed, affected girls are more likely to be in a position to oppose the practice and take measures to protect themselves or seek help. To help address the problem of families taking daughters overseas for FGM, French authorities and school officials use educational campaigns at the start of the summer vacation season to warn parents of the risk of prosecution if they have FGM performed on their daughters overseas. (215)

   Weil-Curiel maintains that the French approach is still going strong despite the lack of a new prosecution in the last several years: "We have a triple approach, preventing through education, shaming with publicity and punishing. It seems to work .... We see girls who are cut before they come to France, but we have not seen anyone cut in France for a while." (216)

   2. Revising the FGM Act

   As Section II demonstrated, there are loopholes in the FGM Act that limit its effectiveness. In addition, European Parliament resolutions on FGM have called on member states to take legislative measures against FGM that go beyond those contained in the FGM Act. For instance, the 2012 European Parliament Resolution states that FGM legislation should not only prohibit all forms of FGM and provide for effective sanctions against perpetrators, but also "mandate a full range of prevention and protection measures, including mechanisms to coordinate, monitor and evaluate law enforcement, and should improve the conditions permitting women and girls to report cases of female genital mutilation." (217)

   The 2009 European Parliament Resolution also calls upon member states to take measures that go beyond the FGM Act, including (a) making it compulsory for physicians and other health care professionals to report cases of FGM to the police, (b) adopting measures enabling judges or public prosecutors to take precautionary or preventive measures if they are aware of specific persons at risk of undergoing FGM, (c) prosecuting and punishing any resident (not just any citizen or permanent resident) who commits FGM, even if the act was committed extraterritorially, and (d) fostering proper awareness of FGM among the entire range of professionals (e.g., social workers, teachers, police forces, and health professionals) who may encounter it so that they will recognize such cases and intervene appropriately. (218)

   In addition to this guidance from the European Parliament, it is also helpful to consider FGM laws recently enacted in Ireland (2012), Kenya (2011), and Uganda (2010), all of which are more robust than the FGM Act because they incorporate measures criminalizing a range of acts that facilitate FGM. (219) The approach taken by these newer laws expands the range of prosecutable offenses, giving prosecutors more opportunities to win FGM-related convictions.

   This section of the Article presents a Model FGM Act that incorporates guidance from the European Parliament and the Istanbul Convention as well as several aspects of the more recent statutes from Ireland, Kenya, and Uganda. This Model FGM Act, if adopted, would expand the potential for prosecution and strengthen the protection afforded to potential FGM victims under the law. The proposed Model FGM Act is included in the Appendix. The remainder of this section briefly explains the provisions in the proposed Model FGM Act.

1. The Model FGM Act (Model Act)

   The Model Act incorporates several suggestions enumerated in Section II above with respect to strengthening the FGM Act. In particular, the Model Act uses the World Health Organization's definition of FGM--including the idea that FGM is a set of procedures performed for nonmedical reasons--which, in turn, eliminates the need for language allowing exceptions for permitted medical procedures. The Model Act also incorporates a provision extending extraterritorial protection and prosecution to anyone habitually resident in the UK, not just citizens and permanent residents. Further, it relies on the more comprehensive phrase "any person" rather than the more restrictive term "girl." These drafting choices achieve greater clarity and conform the law to international standards on FGM.

   Part One of the Model Act is preliminary and proceeds in two sections. Section 1 defines female genital mutilation using the well-known World Health Organization definition. Uganda's 2010 law also uses this definition. (220) For the sake of clarity, the Model Act also defines infibulation, reinfibulation, and child. Section 2 states that FGM is child abuse. This is to provide clarity so that relevant professionals will understand that all legislation preventing and punishing child abuse also applies to FGM.

   Part Two of the Model Act describes offenses involving female genital mutilation in Sections 3-10. The offense of female genital mutilation, as well as of aiding and abetting for FGM, are defined in Section 3. These provisions are similar to sections in the FGM Act, except that they are more streamlined here. The use of the WHO definition of FGM means that it is not necessary to include any exceptions for medically necessary procedures. This approach greatly increases clarity and eliminates the possible argument that the law permits FGM if it is carried out in connection with childbirth.

   Section 4 creates an offense of aggravated FGM for cases where FGM results in death, disability, HIV infection, or for cases where the offender is a health care professional, parent, or other person with authority or control over the victim. It treats perpetrators more severely when FGM results in extremely serious consequences or when the perpetrator is someone who has a safeguarding obligation toward the victim. A similar provision is currently in effect in Uganda. (221)

   Sections 5 and 6, respectively, criminalize the use of a person's premises for the purpose of FGM and the possession of tools for the purpose of FGM. These provisions expand the range of charging options available to law enforcement, thus increasing the possible approaches for prosecuting FGM-related offenses. Similar provisions are now in effect in Kenya. (222) Kenya goes even farther by providing that a law enforcement officer may enter any premises without a warrant for the purpose of ascertaining whether there has been any violation of the FGM law within the premise. (223)

   Section 7 criminalizes discrimination or harassment of any kind when it is directed at a person who resists or refuses FGM or her close family members. Similar provisions are in effect in both Kenya and Uganda. 224 This provision addresses the strong cultural pressure brought to bear on members of FGM-affected communities. It creates a remedy for those who face harsh treatment for rejecting FGM and simultaneously sends the message that harassment and discrimination against those who reject FGM will not be tolerated. Uganda goes even farther and also criminalizes the participation in events, such as coming-of-age ceremonies, that lead to FGM. (225) Section 7 also criminalizes acts of harassment directed at those who speak out against FGM. The Guardian recently reported that women in the United Kingdom "have received death threats, been publicly assaulted, and who have had to move house after speaking out about FGM. ..." (226) These news reports demonstrate Section 7's relevance to the UK context.

   Section 8 criminalizes the act of arranging for another person--whether a potential perpetrator or a potential victim--to enter the UK for the purpose of either performing or receiving FGM, while Section 9 criminalizes the removal from the UK of a girl or woman for the purpose of enabling her to undergo FGM outside the UK. These provisions address the fact that FGM is a cross-border problem. Accordingly, criminalizing the facilitation of FGM through travel arrangements expands opportunities to bring a prosecution. Ireland and Kenya have both enacted similar provisions. (227)

   Section 10 creates extraterritorial liability for the acts described in Sections 3-9 when those acts are committed by a UK national, permanent resident, or person who is habitually...