Double standards secure FGM conviction and religious intolerance

An Australian FGM trial has helped promote intolerance of religious practices, caused dissent among the Dawoodi Bohra, a sect of Shia Islam, and exposes the double standards inherent in the criminalisation of female genital mutilation/circumcision.

On 25 April 2016, Syedna Mufaddal Saifuddin, an Indian, muslim spiritual leader spoke privately to a closed audience in a Mumbai mosque, about ‘khatna’ or ‘khafd’ (female circumcision). Traditionally considered a religious duty, it is also a private, female practice. The audio clip of his speech, delivered in the Lisan-ul-Dawat language, was authenticated by some members of the community. It has caused major controversy.

His transcribed words said: “The act must be done. It needs to be done discreetly when it is a woman, but it needs to be done.’’ It is widely believed that the act referred to is ‘khatna’ although the word was not explicitly spoken.

He went on to say:
“Whatever the world says, we should be strong and firm…whatever they say, it does not make a difference to us, we are not willing to accept [what they say]…we are not willing to talk to them. What are they telling us? That what we are doing is wrong?…who are they to teach us?”

A clearer reference to ‘khatna’ then follows.

“It must be done. If it is a man, it can be done openly and if it is a woman it must be discreet. But the act must be done. Do you understand what I am saying? Let people say what they want…but Rasoolullah [Prophet Mohammed] has said it…Rasoolullah will never say anything against humanity. He has only spoken [of] what is beneficial…from the perspective [“haisiyat”] of the body and the soul. What do they say?…that this is harmful? Let them say it, we are not scared of anyone.”

He also made reference to what he considered vices that people have, such as drugs or cigarettes, asking, “Why don’t they tell those people [that they are wrong]?”

The content of this pronouncement is surprising as well as controversial, and he is being castigated in the media and by anti-FGM activists for it.

But the context is very important.

It’s roots lie in the first FGM trial that took place, in Sydney, in 2015.

The Dawoodi Bohra are thought to be the only Muslim community in South Asia to practise FGM. An estimated three quarters of Bohra girls are believed to undergo a form of clitoral hood excision at about the age of seven (WHO Type I or 4 classifications). The communities also practise male circumcision which is not illegal.

Community support for the practice first hit the headlines in 2015 when two members were accused in an Australian court, in Sydney, of breaking the law ‘by putting two seven years old girls through FGM’, in separate incidents.

In November 2015, after a nine week trial, the court found two people, the children’s mother and a retired midwife, guilty of cutting the girls under its anti-FGM law. A Bohra religious leader was convicted of being an accessory to the crime.

Before sentences were passed, Bohra leaders in Australia, Europe and the United States passed resolutions against the practice which were disseminated to followers in February 2016. They asked their members to honour the laws of the land they lived in and to stop ‘khatna’. The British version of the letter can be accessed here.

Some Bohra members welcomed what was considered to be a far sighted move. “On behalf of Speak out on FGM we want to thank the Australian Jamaat and the UK jamaat for issuing such a strong and clear worded decree calling upon all the bohras in Australia and the UK to ban FGM and to henceforth stop practicing it.’ They then started a petition with a view to gathering support for ending the practice in India also.

The convicted three were sentenced to 15-month prison terms after being assessed for home detention.

Anti-FGM campaigners, including some Dawoodi Bohra activists, were thrilled with the conviction, Australia’s first.

Others weren’t however and wrote about ‘our privacy shattered, our silence deemed fear, our beliefs assaulted, our very persona spat upon by self-appointed saviours, with no place to hide from these assaults.’

With the benefit of hindsight, some view the resolution an insincere and cynical move, passed purely for political reasons, hoping that it might influence the judge to pass lenient sentences. Or that the religious leader may have felt pressured into sanctioning it in the face of unwelcome and hostile media attention, and was having second thoughts because it went against deeply held religious beliefs. This may have led him to depart from his prepared script in the mosque to speak his mind and pronounce that Bohras must continue the act, irrespective of opposition to, or laws against, FGM.

But one needs to ask whether making a centuries old traditional practice like ‘FGM’ illegal, is the best way of dealing with it? While many would agree that it is not, they nevertheless believe it important that an unequivocal message is sent, by the state, to adherents saying the practice will not be tolerated and will be dealt with by the law.

On the other hand, criminalising a religious community for what appears to be a symbolic form of FGM, where no physical evidence was found to indicate that the two girls had undergone any procedure, seems excessive.

Dr Sonia Grover, a paediatric gynaecologist told the court it was possible the tips of the girls’ clitorises had been removed, but there were other more likely medical explanations for why they could not be seen and that removal did not align with the girls’ complaints.

“If you were going to remove tissue, it would hurt and bleed,” she said. “The information I was given was that the girls did not complain of pain or problems in the days after. So it means whatever was done was a minor procedure.”

She also said it was possible the clitorises had been pricked or pierced and then healed without sign of injury. When asked if it was possible the clitoris of either girl had been cut, the doctor replied that any cut would have been “very superficial”.

Neither had she heard of acute complications as a result of the practice being performed in Australia, saying “I’m pretty confident it doesn’t happen in Australia.”

This lack of physical evidence, led to unusual measures being taken to secure other types of evidence.

So the evidence that actually helped secure the convictions was obtained by police undertaking surveillance and secretly recording unguarded telephone conversations between a variety of people, including the offenders. This was then transcribed into English.

These undercover methods, according to the Judge, were ‘thorough and commendable in the context of investigation of FGM offences which, it has been said, are difficult to detect, investigate and prosecute.’

It appears that means like these justify the ends when it comes to FGM. Not only do they help mobilise some peoples’ passions against other people’s religious practices, they also help foster a mood of intolerance generally.

And what about the damage done to this specific caring and loving family since investigations began in 2012? What effects will the trial and its aftermath have? What damage has been done to the relationship of trust that existed between the mother and her children? And the children’s ‘adverse psychological consequences’ predicted by the Judge, might not be an issue had they not been put through the ordeal in the first place.

Why go into overdrive to convict people for breaking the law for something less severe than male circumcision which isn’t illegal? Nor should it be. The double standards inherent in the criminalisation of the practice need to be acknowledged. As does the damage being done by the associated intolerance.

Update August 2018

The FGM convictions were overturned on appeal after new evidence showed that the girls had not been cut. The three convicted were acquitted.

The mother and retired midwife had been sentenced to 11 months’ home detention.  Mr Vaziri  (a spiritual leader) had received a 15-month full-time custodial sentence but was later granted bail pending this successful appeal. Appellants had also argued that a cut or nick did not amount to mutilation.

A link to the appeals court decision can be accessed here.   The convictions were overturned, the three defendants were acquitted on all counts and the prosecution was barred from retrying the case as a matter of assault rather than as female genital mutilation.

Religious Freedom News coverage of the appeal can be accessed here.

But generally the silence around this important development is deafening. One wonders why?

Update October 2019

In October, Australia re-criminalised this symbolic form of FGM. The case has been referred back to the NSW Court of Criminal Appeal for further consideration.