Australia re-criminalises a symbolic form of FGM

Truly, truth is stranger than fiction in the FGM world. While the UK goes some way towards decriminalising genital surgeries and piercings for some, Australia re-criminalises a symbolic form of FGM. What’s going on?

Background

In Australia, in 2015, two young sisters were reported to have undergone a symbolic form of FGM known as ‘khatna’ / ‘khafz’ between 2009 and 2012.

In what became Australia’s first FGM prosecution on 18 March 2016, the girls’ mother, a Muslim of the Dawoodi Bohra sect, together with a former midwife were found guilty. A spiritual leader was convicted of being an accessory to the crime.

The three were each sentenced for 15 months by a New South Wales (NSW) court. While the women were given home detention, the community leader got a custodial sentence.

Appeals

But following an appeal in 2018, the charges were quashed. The defence had argued successfully that the religious ceremony of ‘khatna‘ which the girls had undergone was merely symbolic and ritualistic. Medical evidence had also shown there was no visible, physical damage to the girls’ vulvas.

But in October 2019, the prosecutors successfully appealed to Australia’s High Court, arguing that ‘khatna’ which the midwife described as involving a “ceremony of touching the edge of the genital area … allowing the skin to sniff the steel”, had actually breached the law. The court ruled that the Criminal Appeal had erred in quashing their convictions and that this symbolic type of FGM was still FGM.

The Justices said that in this situation a new trial would usually be ordered but might not be appropriate in this case. That in compelling the children to give evidence against their mother, they might suffer psychological harm.

However two High Court Justices differed with their colleagues arguing that the Court of Appeal had made the correct decision:  “The (NSW) Court of Appeal was right to hold that superficial tissue damage, which leaves not physical scarring and which on medical examination is not shown to have caused any damage to the skin or nerve tissue, is not in law capable of amounting to mutilation.”

What now?

The case has been referred back to the NSW Court of Criminal Appeal for further consideration as to whether the jury’s verdict was unreasonable.

This confusing approach to tackling ‘FGM’ leads me to believe and as I said here, that resorting to the criminal law does not seem the most effective way of tackling this unusual social problem in Western countries.  The most progressive way forward surely would be to decriminalise FGM?

Previous reports about the Australian case can be accessed here, here and here.

Update October 2020

A paper, Female genital mutilation or cutting: an updated medico‐legal analysis by Ben Mathews 1,2 and Elizabeth Eallaston 1 (1 Queensland University of Technology, Brisbane, QLD. 2 Johns Hopkins University, Baltimore, MD, USA) was published in The Medical Journal of Australia: Ethics and Law, 14 Sept 2020. Access is for subscribers only.

Contact author:  b.mathews@qut. edu.au

The authors open by saying:

“Many people from countries where female genital mutilation or cutting (FGM/C) is customary have migrated to Australia and other nations. Legislation in many of these nations prohibits any person, including medical practitioners, from conducting FGM/C. Important questions exist about the nature of the prohibition, and lawful and ethical practice in dealing with requested FGM/C. Medical practitioners, community practitioners and religious leaders deserve sound guidance about legal responsibilities and optimal clinical practice. 

This is particularly relevant in Australia after recent criminal convictions for conducting FGM/C and for arranging a child’s removal from Australia for its performance. Most significantly, in October 2019 in The Queen v A2, the High Court of Australia delivered a landmark judgment about the least physically invasive form of FGM/C (type 4). The High Court confirmed it is unlawful to perform FGM/C through acts akin to ritual nicks to the clitoris or clitoral prepuce. This prohibition extends to medical practitioners and those who customarily perform cultural procedures. 

This judgment has international medical, ethical and social significance, given the broad movement to eradicate FGM/C, alongside continued medicalisation of FGM/C. Here, we provide an updated review of Australian legislation. We explain the 2019 High Court decision, and situate it in the context of law, policy and ethics. Implications for clinical practice are identified.” 

In considering the consequences for practitioners, they write:

Practitioners may be confronted with parents requesting FGM/C, especially type 4, given reported increased medicalisation of the practice. The High Court decision both directs and reassures medical and other practitioners in clinical and community settings that no parent or individual can compel this unlawful procedure. Further support and reassurance for health practitioners should occur through education in professional curricula, and in-service education. Even if a practitioner believed a minimally invasive procedure preferable to avoid a more severe procedure, it is unequivocally prohibited by legislation, common law and policy. 

And advised how to respond

Practitioners should respond to such requests with cultural sensitivity, while insisting it cannot be administered. Practitioners could encourage other rites of passage, support involvement with community agencies dealing with FGM/C, and seek further professional support from clinical and practice guidelines, and hospital and health services. 

Criminal Offences relating to FGM in NSW was published 30 July 2023.

In this recently published piece regarding FGM in Australia, the author reminds us of what happened and makes an important point in regard to adults and consent. Just in the UK, women are legally considered children in regard to FGM

“The fact the person consents to the procedure is not a legal defence, regardless of whether the person is a child or adult.”

He also reminds us that in a subsequent case, and relying on the decision in Magennis and Vaziri, body modification artist Brendan Russell was sentenced to 10 years imprisonment for, amongst more serious charges, excising the labia of a women who sought out his services for body modification purposes.