Acquittals in the FGM case: justice was done, but what now?

This was a case that should never have been allowed to happen.

While female genital mutilation (FGM) is a harmful practice and needs to stop, the UK government, politicians from David Cameron on down, and especially the Crown Prosecution Service (CPS), the Director of Public Prosecutions Alison Saunders, the police and the General Medical Council all need to take a giant step backwards and reconsider their position.

The CPS were desperate to find a case with enough evidence that could end in a conviction; the political pressure on them was enormous. By their own admission, however, they spent several years having great difficulty finding a suitable case with enough evidence. They found a case, all right. But on 4 February 2015 at Southwark Crown Court, they had mud on their faces, because the case they had chosen hadn’t got a chance of succeeding, even if they won’t admit it.

It is hard to imagine how women with FGM, in whose name this case was pursued, were in the least helped by it. I sat in the courtroom listening to what was said for over two weeks. I believe it is crucial to share the details with those who weren’t there, to ensure that no one walks away from this thinking ‒ even for a second ‒ that a conviction would have been justified. Everything I report here was given in evidence in court.

The history: an emergency delivery
An exemplary registrar (Dr D) was called into the labour ward of the Whittington Hospital on 24 November 2012, a busy Saturday morning, to deal with an unbooked emergency delivery. It was the woman’s first baby (the court called her AB). She was 9 cm dilated upon arrival, the umbilical cord was wrapped around the baby’s neck and his heartbeat was falling rapidly. An emergency, instrumental delivery was required. The midwife called for a doctor, and Dr D and a junior doctor came in. AB had to be catheterised to empty her bladder. Neither the junior doctor not Dr D were able to access her urethra. AB had had female genital mutilation (FGM) aged 6 in her home country. She had come to the UK as a refugee and been granted asylum. She married in 2010. However, she had difficulty having sex because of the FGM, as the opening to her vagina was too small to penetrate. She went to her GP for help, and was referred to a specialist FGM surgeon, who deinfibulated her in 2011. She healed without problems, and was then able to have sex without difficulty, and got pregnant not long afterwards. However, it seems that during the healing process, she must have developed some scar tissue on her labia that became a problem during her delivery.

With the baby’s head coming down, Dr D and the junior doctor examined AB and discovered that she had previously had FGM. It was later agreed in court with expert witnesses that scar tissue from the deinfibulation was covering her urethra. To open it, Dr D made an incision of 1.5-2cm, which exposed the urethra, and he successfully emptied her bladder. Because of the size of the baby’s head, an episiotomy was also done. Dr D tried forceps first, which didn’t succeed, and then used a suction cap. The baby was born safe and sound. Everyone agreed that Dr D had saved his life. The episiotomy was bleeding quite a lot and was stitched by the junior doctor under Dr D’s supervision. It was her first perineal repair and took about 20 minutes. She was informed she was needed elsewhere and left. As the scar tissue was also bleeding, even though not very much, he did one figure-8 stitch at the apex of the incision, and the bleeding stopped. He then left to do an emergency c-section.

That one stitch − clinically justified, according to several senior physicians’ expert testimony − became a central focus of the case: Dr D was accused of reinfibulating AB, which is illegal.

Dr D had never seen the genitals of a woman with FGM before. He had never received any training or information on how to deal with FGM at a delivery, let alone an emergency delivery. He had only been at the hospital for about a month. He had come to the UK as a child from a country in which FGM is not practised. Although AB comes from a culture that widely practises FGM, she wanted her labia to be opened surgically in 2011 ‒ to have intercourse and children. Why would she want to be closed up again a year later? There was no evidence that she did. She resumed sexual relations after she healed from the first delivery and had a second baby in 2013 ‒ with no incisions and only a small perineal tear.

While Dr D was doing the c-section, he thought about the stitch he had made in AB. He had no doubts it was clinically necessary, but he wasn’t sure it had been the best stitch to use in the circumstances. After completing the c-section, he sought out his consultant and asked for her views. She confirmed that a stitch was necessary to stop the bleeding, but that she would personally have used a different stitch to ensure that the scar tissue would not reseal. However, she decided that it would be humiliating for AB to be approached by her on the post-natal ward to be examined, and she advised Dr D to let it be. Expert witnesses confirmed that Dr D behaved properly in talking to her after the fact, rather than delaying completing his care of AB to seek advice.

Midwife J did not see AB antenatally nor during the delivery. She was sent to AB’s home six days after AB had left the hospital, to examine the alleged reinfibulation. She gave evidence that she examined AB on her bed (a soft surface and without the aid of the sort of bright lamp that would normally be used to examine a woman with FGM), and she thought AB’s labia were almost completely closed. In contrast, AB described her own genitals at the time as swollen and sore, but not closed. Midwife J did not mention seeing any swelling herself, but because the notes in AB’s green book had been “lost” (torn out, in fact), she was working from memory. Who should be believed if not the “victim”, however? Surely, having her labia stitched together again would have been the last thing AB wanted − she had been “opened” in 2011 by her own choice and considers herself still open today.

The prosecution’s case
Having no idea of what was to come, Dr D was promoted by the hospital in April 2013 to senior registrar. Yet someone must have reported the “incident” to the Trust, because Dr D was unexpectedly subjected to an investigation − and then someone brought the police in. Who? We weren’t told. However, it was public knowledge that the Crown Prosecution Service was looking for cases, and the issue of FGM was all over the news by 2013. The police investigation led to charges in 2014, which led to the trial − two years and two months after the delivery of AB’s first baby.

In the interim, by order of the General Medical Council, who seem to work from the assumption that you are guilty until proven innocent, and then may subject you to their own brand of investigation even if you are proven innocent in court, Dr D was not able to complete his training or work as a doctor for two years. He has, however, thanks to the support of senior hospital staff, participated in research on urogynaecological problems in older women, and he received glowing professional and personal character references from senior medical experts who were witnesses for the defence in court. These witnesses confirmed in court that even though Dr D had had no experience of FGM, he behaved properly in talking to the consultant after the fact, rather than delaying completing his care of AB to seek advice. The prosecution, on the other hand, tried to make it look as if Dr D had behaved wrongly, irresponsibly, ignorantly ‒ for not knowing about FGM, for not having read the hospital’s policy and guidance on the subject, for not knowing which stitch was best to make, and for not interrupting his care of AB to find the consultant and ask for advice before he acted to stop the bleeding.

The prosecution’s case rested on evidence from several midwives and the junior doctor, which was inconsistent and full of gaps due to their witnesses not being able to remember a lot of what happened. With the absence of the green book notes, the lack of memory of details on the midwives’ parts was understandable; after all, they see hundreds of pregnant women every year and can’t possibly keep all the details in their heads. But that made the prosecution’s case incredibly weak.

Creating case law and a legal precedent
The defence requested more than once that the judge dismiss the case without the jury having to deliberate. Alison Saunders, the DPP, was quoted in the Guardian (6 February 2015) as implying that his decision not to do so meant there had been a strong case to answer. I disagree. The judge did decline, but the closing arguments and his instruction to the jury of the legal questions they had to answer to reach a verdict, based on the evidence, made it clear beyond any doubt how weak the evidence was. I believe he recognised, wisely, that had he dismissed the charges without going to the very end, the verdict and the legal precedent set would have been far less powerful in regard to future cases.

Given that it was the first criminal trial on FGM in the UK, he had to be sure that justice was done ‒ and seen to be done. And it was.

One of the most complicated aspects of this trial was that the law against FGM itself was being tested for the first time. In my opinion, the law was found sorely wanting, and more needs to be done to prevent weak cases from being brought against innocent people again, and particularly innocent medical professionals. A courtroom is not the best place to debate the rights and wrongs of complex clinical treatment. As it happened, both defence barristers and the judge dealt with the evidence brilliantly, so it should have been no surprise that the jury took less than half an hour to reach a “not guilty” verdict.

But what would have happened if Dr D had been found guilty? In deciding to bring this particular case, as opposed to bringing a case against someone who had actually done an infibulation, particularly on a child, I have to ask whether DPP Alison Saunders lost sight of the fact that the criminal law against FGM expressly mentions the importance of not creating barriers that would prevent necessary surgery, including during labour and delivery, which are specifically mentioned in the law in this regard. Yet the creation of barriers was likely to have been one of the main consequences of this trial had Dr D been found guilty.

Why was it these two men who were on trial?
In my opinion, it is not an accident that the first two people in the UK to be tried for FGM were people of colour and immigrants from Asia and Africa, albeit the doctor was educated, middle class and a health professional.

It is mainly African and to a lesser extent Asian women in the UK who have had FGM themselves. As activists in the cause of stopping FGM, they and others have been campaigning with passion, commitment, integrity and the best of intentions to have FGM recognised as a harmful practice ‒ here, as elsewhere. Nonetheless, I believe this issue has been used politically by people in power, particularly senior Tories, who are seeking to gain credibility as champions of women but only because they can present them as victims of their own cultures.

I am concerned that anti-immigrant politics is their motivation, and is why FGM is in the headlines 40 years after campaigns against the practice first began. Bona fide doctors and their patients, and their patients’ partners and families − most from Africa or Asia − are being demonised, investigated and prosecuted not only for the “crime” of FGM but also the “crime” of sex selective abortion. The connection is visible in the Serious Crime bill currently before Parliament, where all these “crimes” are clustered together to be further criminalised. Pick up any newspaper, any report from Parliament, any statement by a vote-seeking politician or the Director of Public Prosecutions, to see words such as “evil”, “abhorrent” and “barbaric” applied to the practices of people of colour, who are implicated for having brought them to these shores as immigrants.

The responsibility of the hospital
No one suggested putting the hospital on trial, though it may yet come to that. It might easily be said that Dr D was a scapegoat for the hospital’s many failings in this case, and Dr D’s barrister and the judge were articulate about this point on the last day of the trial. AB had had three antenatal visits and had acknowledged having had FGM as a child at the first visit (where she also said clearly that she had been “opened”). Yet AB was not referred to a specialist FGM midwife, as she should have been, which would have avoided everything that happened subsequently. No one ensured that she had an interpreter at any of her antenatal or post-natal visits, and there was no time to find an interpreter during the delivery. Nor did she have a birthing plan. She arrived at the hospital at the last minute, an ambulance having refused to take her there when called several hours earlier. So it was convenient to focus only on Dr D.

However, it would be as much of a mistake now to lay blame on the hospital and the midwives as it was to lay blame on Dr D. Clinicians make mistakes, things are missed out in their training. In an NHS starved of cash by a government trying to bring the whole system to its knees (and also trying to close this particular hospital), they would have little spare time to find and digest the endless policy and guidance documents that now exist in the middle of seeing patients, let alone while handling emergencies, as happened in this case.

Turning a clinical judgement call into a criminal act: the consequences for medical professionals
Maternal deaths are rare in Britain, and one of the most important reasons why has been the historic role of confidential enquiries into every maternal death. The purpose of those enquiries is neither to punish nor to identify who did something wrong, but to identify, analyse and learn from what happened, including any mistakes made and how they could have been avoided or addressed differently. Because Dr D and almost all the witnesses in this trial were medical people, something akin to such an enquiry took place − in the Crown Court. But it was not confidential, it was not anonymous, and it was wholly intended to blame and to punish. In my opinion, this is the crux of the injustice of this case, and I believe it would be a serious error on the part of the medical profession to sit back and allow what happened there to happen again.

I hope it is clear that the legal issues in this case as regards Dr D were in fact clinical ones, and I hope from my description of the evidence that it is clear the law had not been broken. The law against FGM says that FGM, including infibulation (or reinfibulation), is illegal unless it is done on the grounds of the woman’s health and/or in relation to labour and birth. The case against Dr D rose and fell on the question of whether the single suture he did was necessary for AB’s health and was done in relation to labour and birth ‒ or whether it was clinically unnecessary and intended to reinfibulate her.

The violation of AB’s privacy and bodily integrity
I believe this prosecution was a gross violation of the privacy of a woman who had had FGM as a child, which was done in the name of protecting her. Not stating her name and not bringing her into court to give evidence were to protect her privacy. Her privacy was actually violated, however, because her most “private parts” were the main subject of attention throughout the trial, where she was talked about as if she were a piece of meat being dissected, with an unrelenting focus on the most minute aspects of her genitalia. In the end, although this might have been necessary, it almost felt like voyeurism.

Now what?
The intended outcome of this trial was to open a door to further prosecutions, and indeed a new one was announced on 6 February. The CPS and the police are apparently not stopping to reconsider their position, nor apparently are FGM activists. I hope against hope that the medical profession does. The conviction of Dr D would have threatened the entire medical community, who are increasingly being subjected to criticism, opprobrium ‒ and the threat of criminal sanctions − by demagogic politicians, aided by sting operations against doctors carried out by media such as the Daily Telegraph. Several years ago, the Telegraph succeeded in demonising three South Asian doctors over their alleged willingness to authorise fictitious abortions on the grounds of sex selection. None of the doctors was criminally prosecuted by the DPP, who decided it was not in the public interest, but abortion providers have felt threatened, which was in fact always the intention.

I believe an analysis of the wording of the 2003 law against FGM is needed and would reveal major flaws. I believe this case raises questions about whether there should be a criminal law against FGM at all, and if so, what it should be covering. So if someone should be criminalised, who should it be? Do we really want to put grandparents and mothers and aunties in jail? Do we really want small children to be picked up by the police at the airport and taken into care? And little girls’ genitals examined in school? Should everyone getting into an airplane be treated as a suspected FGM criminal, in addition to being seen as a potential terrorist? The conclusion of most of the experts on this issue internationally has been that criminalisation is not the answer. These are questions I plan to take up next.

Lastly, and I think it cannot be said often enough, serious consideration is needed on the part of Parliamentarians, the Ministry of Justice, the police and the legal profession, as well as the medical profession and medical bodies like the Royal College of Obstetric and Gynaecology and especially the General Medical Council, of the negative and destructive consequences of criminalising medical care to do with women’s bodies and sexuality ‒ especially when it is linked to ethnic and racial profiling ‒ which is the bottom line of the many the ethical issues involved in this case.

Marge Berer

This was originally published here in Feb 15 on the Berer Blog