Injustice arising from pursuit of FGM prosecutions – UK

Britain’s first conviction for FGM was delivered in London, in February 2019 and was a landmark ruling. A mother found guilty of FGM for cutting her daughter’s genitals was jailed for 11 years. She contended throughout that a straddle injury was caused by the girl falling on to an open cupboard door as she reached for a biscuit above it.

The ruling delighted the authorities and FGM campaigners who remain convinced that FGM is rife in the UK. Pressure to convict grew with the passing of the Serious Crime Act (2015), and the associated zero-tolerance approach. Prior to 2015, the Police and the Crown Prosecution Service had come under intense pressure to deliver prosecutable candidates. A conviction was thought important to demonstrate the seriousness in which the crime was viewed and the lengths officials would go to obtain one. 

Having sat through the whole of the trial I have serious reservations about the verdict and consider that a miscarriage of justice took place. I wrote about them here.

Marge Berer who also observed the trial has grave concerns in regard to it. She is an editor and author with expertise in sexual and reproductive health and rights, and has written extensively about the practice. She wrote the in-depth piece Prosecution of female genital mutilation in the United Kingdom: Injustice at the intersection of good public health intentions and the criminal law afterwards, believes the conviction is unsafe and should be appealed. Because it is not open access, an almost identical version can be found on her blog, here.

Her article is primarily about the injustices that have arisen from the pursuit of prosecutions in the UK, despite good public health intentions.

There have been four trials since 2012; Leeds (2015), London (2011) and (2018), and Bristol (2018). All delivered non-guilty verdicts. In that context, the 2019 criminal case R v. N (FGM) assumed huge importance and resulted in the guilty verdict.

Several other arrests which didn’t come to trial have also been made, and an unknown number of safeguarding investigations held with the threat or actuality of children being taken into care. Some were highlighted by Dr Faye Kirkland in 2017 and by BBC Wales in June 2018.

People travelling with young girls to what are considered FGM-practising countries are also viewed with suspicion and some are prevented from travelling to visit families. A particular family to whom this happened was interviewed for the Victoria Derbyshire show in January 2020. Landmark research by Bristol University in 2019 also illustrated the trauma, victimisation and sense of disempowerment that Bristol Somalis experienced at the hands of statutory services.

Berer’s article outlines the history relating to the criminal law and uses courtroom observation to analyse the 2019 case. The conviction was reliant on medical opinion and questionable evidence from the mother’s two children which she explores in detail.

Medical opinion

By the time the girl had left hospital four doctors had examined her genitals. One of the admitting doctors had never seen a labial FGM-type cut in a living child. The two paediatric FGM experts saw her after she had been sutured by another doctor. All four agreed the damage could have been caused by her falling on to the cupboard door, and that “one could never say never”. But none of them thought she had fallen that way. 

A straddle injury, they said, would have caused different injuries as well as bruising, while cuts in three different places from one fall were highly unlikely. A haematoma was not viewed as bruising. Beyond these medical opinions, there was no evidence of the crime. And medical opinion, no matter how firmly held, is not conclusive. Yet the absence of other supporting evidence of FGM was never seriously challenged in court.

Children’s evidence

The girl was interviewed three times and the boy four. The interviews were videotaped and shown in court. Some reports of conversations they had had with social workers and their foster mother were also shared. What each child said was consistent (that she had fallen on to the cupboard door) until their final interviews. Then, separately, to different people and at two different points in time, more than a year after the events of 28 August 2017, they each changed their story. 

In Berer’s view, the girl’s new claims were not credible, yet the court seemed to accept them. The boy’s response (aged 10 at the time of the trial) was more damning, but had to be withdrawn on the final day of the trial.

Witchcraft

The conviction was also influenced by a spurious link to witchcraft which helped destroy the mother’s credibility in court. I will elaborate on this because the supposed link between FGM and witchcraft appears to have originated with the National FGM Centre, supported by Barnardo’s charity. Witchcraft is being promoted by them as child abuse linked to faith and belief and has since become an important focus for their work.

The mother’s barrister had asked that anything related to witchcraft be declared inadmissible, but the judge refused. During the trial, a letter from a prosecution witness claimed that FGM and witchcraft in Africa were related and was admitted in evidence. The claim was proven false however when the mother’s barrister adduced a letter from a counter-witness stating there was not a connection.

During the trial, Berer wrote to Barnardo’s charity asking for evidence of the link between witchcraft and FGM. The response which she received after the trial, pointed to a Refinery29 article. But Refinery 29 and the National FGM Centre/Barnardo’s had cited each other as their source. Additionally, Barnardo’s named four other publications as evidence, yet none contained credible evidence of a link.

In her summing up, the judge stressed a number of times that some of the mother’s beliefs and practices should not be taken as evidence of guilt yet used stigmatising language to describe them as “repulsive”. And when the verdict was announced, the mother and FGM were associated with witchcraft in news reports. And, I would contend, remain linked in the popular imagination still.

Linking FGM to witchcraft has been given further legitimacy because it  is a focus of the work of the National FGM Centre, supported by Barnardo’s charity and the Local Government Association. One of its niche work areas has become attitudinal change towards harmful practices and abuse linked to faith or belief. That focus was developed when the predicted FGM epidemic didn’t materialise but the Centre still needed to be considered relevant. It now boasts its harmful practices E-Learning tool “the first of its kind in the world.”

“Research” by the Local Government Association (LGA) in November 2019 revealed that abuse of children based on faith or belief including witchcraft, spirit possession and black magic, increased from 1,460 to 1,950 cases between 2016/17 and 2018/19. This was uncritically reported. Councils were said to have dealt with the equivalent of 38 of these cases a week over that three year period.

The research also showed that the number of children identified through social work assessments as having been or being at risk of FGM had reached a record high – with 1,000 cases in 2018/19. This was up six per cent on the 940 cases in the previous year. We weren’t told how ‘at risk’ was defined but it usually, if erroneously, means that mothers who have undergone the practice intend having her daughters’ cut. Of course most mothers in the UK have no intention of doing this to their children.

Research by Johnsdotter (2015) Cultural change after migration demonstrated that substantial change in the practice had occurred in western countries after migration because it had afforded migrants opportunities for cultural reflection and a re-examination of their motives for FGM. Omorodion’s research from Canada also found that migrating to a new country brings exposure to norms, values and beliefs and an eventual influence on home culture and way of life.

To explain the increase, social workers were credited with becoming better at identifying the signs of FGM and belief-related abuse. But the LGA suggested the true incidence rate was likely to be higher as these crimes are under-reported, replicating the ‘tip of the iceberg’ predictions for FGM that curiously have not materialised.

In a recent press release Barnardo’s demonstrated that it had joined COVID-19 conspiracy theorists reporting “Increase in witchcraft and spirit possession suspected during coronavirus lockdown”. It quoted the FGM Centre saying that child abuse linked to faith and belief might increase but go unreported because of the crisis. And if vulnerable children or adults contract COVID-19, or are accused of bringing it into the home, they could be labelled witches or possessed. Spiritual rather than medical help might then be sought which could result in a rise in exorcisms or deliverances to ‘drive out’ evil spirits associated with the virus.

Witchcraft has been associated with magic, evil and the devil since biblical times. In Europe witch hunting hysteria reached its peak at the end of the 1600s. Magistrates of the time determined that most of Würzburg, Germany was possessed by the devil, and condemned hundreds to death. It is worrying that something that does not even exist re-emerged in a UK law court in 2019, and was used prejudicially there. And is now being promoted in the media, and in health and social care professionals’ education and practice.

Berer is to be congratulated for her detailed work which illustrates why the FGM conviction is unsafe and should be appealed. She also believes that the current law against FGM should be reconsidered and replaced with positive measures for countering FGM which have the support and involvement of the community groups to whom they are addressed.

Let’s hope that somebody with a conscience listens.