Female Genital Mutilation (Protection and Guidance) (Scotland) Bill

Had England’s most recent “FGM” trial been held in Scotland the mother might not have been convicted.

The Bill was introduced in the Scottish Parliament on 29 May 2019.

The rationale for its creation included the following: 

• FGM is a crime in Scotland, but there have been no criminal prosecutions
• The Scottish Government wants to strengthen the legal protection for women and girls who have been subjected to, or who are at risk of, FGM
• FGM has no health benefits. All forms of female genital mutilation carry serious health consequences, including death
• No religion requires FGM and it’s not limited to any religious group
• Global migration means that FGM is found all over the world. It’s practised across different continents, countries and communities

An explanation for the Bill can be accessed in this Scottish Government’s Policy Memorandum document   

Background 

There is a lack of statistical information demonstrating the extent of FGM in Scotland.

In 2014, a Scottish Refugee Council report analysed census, birth register and other data in an attempt to estimate the size and location of communities in Scotland which might be affected by FGM. 

It found that: 

• In 2011, around 24,000 men, women and children living in Scotland were born in a country where FGM is practised to some extent. 
• There are communities potentially affected by FGM in every local authority area, with the largest communities in Glasgow, Aberdeen, Edinburgh and Dundee. 
• Between 2001 and 2012, 2,750 girls were born in Scotland to women born in countries where FGM is practised to some extent. 
• There is no data on ethnicity or other variables which influence the practice of FGM in local communities, so it is not known how many people in those communities are directly affected.

A consultation Strengthening protection from Female Genital Mutilation was held between 4 October 2018 and 4 January 2019. Seventy one responses were received from a mix of individuals, public bodies and organisation ‘involved in FGM’. The proposals ‘were warmly welcomed’.

The consultation was primarily concerned with gauging perspectives on five legislative provisions in relation to FGM, already adopted in England and Wales via the Serious Crime Act 2015. These legislative provisions concerned:

• the provision of anonymity of victims of FGM
• the creation an offence of failing to protect a girl from the risk of FGM
• the introduction of FGM protection orders
• the introduction of a duty to notify police of FGM and
• the introduction of statutory guidance relating to FGM.

An analysis of the responses to the consultation was published in May 2019.

Respondents were largely supportive of anonymity, protection orders and the introduction of statutory guidance.

Views on an offence of failing to protect and a duty to notify the police were mixed, with many arguments both for and against these positions raised.

Failure to protect

In E&W if an offence of FGM is committed against a girl under the age of 16, then each person who is responsible for the girl at the time FGM occurred may be liable to conviction unless specific defences can be shown to apply.

The Scottish Government did not bring forward legislation on this topic because the Government agreed with respondents who felt that this could potentially impact negatively on individuals, especially women, who do not have the power or agency to protect persons who may be at risk of FGM.

Based on this, had England’s most recent “FGM” trial been held in Scotland the mother might not have been convicted.

Duty to notify police

The Scottish Government did not bring forward legislation on this topic.

Forty eight per cent of respondents did not support new legislation on a duty to notify with 35 per cent supporting new legislation. Respondents who were against inclusion of the duty emphasised the risk that such a duty might dissuade individuals from accessing health and support services. Other respondents emphasised the symbolic nature of such a duty would highlight the seriousness of the crime and could raise the likelihood of reporting.

Cosmetic Genital Piercings 

In E&W health services seek to record cosmetic genital piercings as a form of FGM, to identify where this has been done in an abusive context. Cosmetic genital piercings are not prohibited under FGM legislation, but neither is it explicitly exempted from requirements to record and report.

There was limited suggestion that the government should intervene in relation to consenting adults seeking this form of cosmetic surgery.

Labial stretching and breast ironing

It’s gratifying to note that common sense prevailed in regard to labial stretching (termed vaginal elongation), and breast ironing. There was only anecdotal evidence that labial stretching was practiced in Scotland. Breast ironing was not considered to be a widespread practice either.

Explanatory Notes to accompany the Bill can be accessed here.