Maybe Ireland’s first FGM case really was a straddle injury

The jury at Dublin’s Circuit Criminal Court court found a Dublin couple guilty of being secondary participants to FGM – of aiding and abetting, counselling or procuring it on their nearly two year old daughter. The police (gardaí) suspect it was carried out by a witch-doctor.

Part of the girl’s clitoris was reported absent, consistent with FGM Type 1. The parents maintained their daughter sustained the injury after falling on a toy.

The jury took less than three hours to return an unanimous verdict on 28 November 2019. The couple have been remanded in custody and sentencing is scheduled for 20 December 2019.

I did not attend the trial but it was well reported. I am concerned about the guilty verdict, think a straddle injury may have occurred as described, and that a miscarriage of justice may have ensued.

Background

The couple, a 37-year-old man and 27-year-old woman, are from an African country but have lived in Ireland for over a decade. The mother admitted to having undergone FGM in Somalia as a child.

The father reported that when the family woke on the morning of 16 September 2016, his daughter had a dirty nappy. His wife changed it in the bathroom.

The girl returned to him without a nappy and he showed her a ball with lights. She then ran backwards, fell on a toy (an activity centre with a steering wheel and other protruding objects but no sharp edges) and sustained her injuries. He heard her cry and picked her up to try to calm her. 

On returning from the bathroom his wife, who didn’t see her daughter fall onto the toy, noticed blood between her legs.

They took her to Our Lady’s Children’s Hospital, Crumlin (OLCHC), fearing that she was bleeding excessively and that an ambulance might take too long.

Paediatrician’s assessment

Paediatric surgeon, Professor Thambipillai Sri Paran met the child when she was wheeled into the operating theatre. He observed that the injuries occurred about four hours beforehand when in the custody of her parents and the bleeding was “not planning on stopping any time soon”. On operating, he noted the bleeding was from just above where he would expect the clitoris to be. He observed that the clitoral head was absent. 

“The story didn’t match the injury that I saw,” Mr Paran said, adding: “When the story and the injury doesn’t tally, we know we are legally obliged to raise the alarm.”

The couple were questioned by police 16 September 2016. The breastfeeding mother was arrested on 13 December 2016 and interviewed by police on several occasions. She told them she was from Somalia, that FGM was practiced there and she’d undergone it as a child. She denied that anybody had performed FGM on her daughter; that the injury was caused by the toy. She also denied that she or her husband would do this to their daughter just because it had happened to her.

The couple had been on bail since then and conditions which they met including paying a €300 cash bond, surrendering their passports and signing on at a local police station twice a week.

Court evidence 

Mr Paran told the trial that he noted a laceration on one side of the girl’s labia minora although he initially thought it “may be gone.” But a later examination carried out by him and colleagues found it “was still there but had been cut”.

Dr Sinéad Harty, a consultant paediatrician at OLCHC examined the girl three days later (19 September) and noted there was a “lack of external bruising”. She had queried a possible lesion on the labia minora but ultimately formed the view that there was no injury to them.

FGM expert witness

Dr Deborah Hodes, a consultant community paediatrician, told the trial she had helped establish a clinic (at University College London Hospital) specialising in identifying and treating children suspected of having undergone FGM. This is the only clinic of its kind in the UK. Ireland doesn’t have one. She estimated that she may have seen about 80 cases of genital mutilation.

Dr Hodes said the explanation that the child sustained the injury by falling on a toy did not fit with the clinical findings. “It’s not possible that falling back onto this type would cause this degree of damage,” she said, adding “It’s my opinion that there’s nothing sharp there.”

She said what she had viewed on DVD – three examinations carried out on the girl at OLCHC in September and December 2016, was consistent with the cutting and removal of tissue consistent with FGM.

She told the court: “There was a raw bleeding area where I would have expected to see the clitoris.” She noted that the view was “obscured somewhat by blood” but that she “couldn’t see the clitoral head”.

Dr John Hoade, a scientist who works in the DNA section of Forensic Science Ireland, said that having examined the child’s toy “I found no blood on the toy.” The father said he had cleaned it.

Legal accounts

Patrick Gageby SC representing the mother noted that his client had not come to the attention of the police before this case and told the court; “Barring this accusation, this was a well groomed, well nourished, well-cared-for child, a child who interacts well with her parents – the point being that children who are ill-treated by their parents don’t interact well with them.” 

He noted that doctors confirmed to the trial that a child would generally have to be restrained or sedated in order for FGM to be carried out on them. “If this was an act of FGM done on the child, it required her to either be restrained or sedated. Dr Harty was quite clear, there was no evidence to suggest restraint at all.”

In relation to the girl possibly being sedated, he reported that she was “in hospital for a long time” and there was “no medical evidence ” to support that the child was or had been sedated.

He noted that the CCTV footage seen in court showed the girl to be alert and playing whilst in the hospital waiting room. “That indicates no restraint and no sedation, there is no evidence to support that at all, in fact the evidence is contrary,” he said.

Although his client didn’t see her daughter fall onto the toy, he believed that was what happened.

Importantly, Mr Gageby also said the concept that one might attribute a motive to her based on her origin would be reprehensible. That it would be an insult to suggest to the jury that his client and her husband would be treated differently if they were John and Mary Murphy whose family had been living here for 300 years.

Mr Colman O’Sullivan SC represented the father. He advised there is “a particular need for the jury to be careful” when relying on expert evidence. He added “it is normal to put weight, and to accept almost without question” what an expert says, especially in the case of doctors.

He thought the prosecution had failed to present evidence about whom may have carried out FGM, if it had occurred, or any evidence about how his client aided and abetted it to take place.

Mr O’Sullivan also noted there “seems to be a fundamental inconsistency” between how Mr Paran and Dr Hodes described the layout of female genitalia. And that there appeared to be a “lack of certainty” among the doctors about aspects of the girl’s injury and the possible presence of a cut on her labia.

He advised the jury that based on the evidence, they should have “very significant doubt” that his client was guilty of the two charges. And that the prosecution failed to present evidence about whom may have carried out FGM if it had occurred, or any evidence about how his client aided and abetted it to take place.

Mr Shane Costelloe SC (Prosecutor) reminded the jury that Mr Paran had told the court that when the parents presented at OLCHC “They permitted [FGM] to be done to their daughter”. That if the jury are satisfied beyond a reasonable doubt that this is true, they must find the accused guilty. And that if guilty of the first count, FGM, “there can be little doubt that they are guilty of the second count”; of allowing their child to be ill-treated.

Judge’s summary

Judge Elma Sheahan in explaining the charges to the jury, told them that count one refers to carrying out FGM, contrary to section two the FGM Act 2012. This legislation defines FGM as “any act the purpose of which, or the effect of which, is the excision, infibulation or other mutilation of the whole or any part of the labia majora, labia minora, prepuce of the clitoris, clitoris or vagina of a girl or woman”.

The State was not arguing that the couple carried out FGM on their daughter, rather that they were secondary participants and “intended to aid, abet, counsel or procure” the procedure. She told the jury that section seven of the Criminal Law Act states that “any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender”.

She reminded the jury they have to decide the facts of the case only and “do not have to be concerned with the consequences” of their verdict.

The offence of FGM, on conviction, carries a sentence of up to 14 years. Nobody has yet been convicted of it in Ireland. Count two refers to a charge of child cruelty contrary to section 246 sub-section 142 of the Children Act 2001.

Police suspect witchcraft

Following delivery of the guilty verdict, the police objected to the couple being bailed due to the seriousness of the charge and fearing a potential flight risk. The woman is an Irish citizen. A deportation order is in place for the man which is under appeal.

The couple’s three children, including a breast-fed baby are in the care of the woman’s sister and will remain there provided that Tusla (the Child and Family Agency) is satisfied with the arrangement. Judge Sheahan said she is “fully aware” of the fact young children are involved and said it is “a matter for the prosecution to take the appropriate steps in this regard”.

Afterwards, the police said they suspect the genital mutilation was carried out by a ‘witch doctor’; that an older woman known to the couple and the child performed the mutilation. But that she had returned to Africa before she could be interviewed by detectives and hasn’t returned to Ireland since. There was not an explanation as to how they reached this conclusion.

I fear a miscarriage of justice may have ensued and suspect the cause of the girl’s injury may be as told by the parents. The inconsistency of the medical evidence fuels that fear.

A precedent was set in regard to FGM and straddle injuries in the London conviction in February this year. I, and others, have grave concerns about this.

In the next blog I explain concerns in regard to the trial, and consider aspects such as straddle injuries, witness expertise, anatomical knowledge of girl’s genitalia, and issues related to origins, race and religion including witchcraft.

Sentencing is scheduled for 20 December 2019. The offence could carry a sentence of up to 14 years.

Sentencing was deferred to 27 January 2020.

Dr Hodes had confirmed in a report that because of the type of FGM the girl had undergone she would not suffer physical effects to her urinary system or her vagina, nor would she have associated menstrual problems. And there would be no effect on her ability to have sexual intercourse in the future.

Judge Sheahan sentenced the girl’s father to five and a half years in prison for the FGM charge, and three years for the neglect charge. The sentences will run concurrently.

The girl’s mother was sentenced to four years and nine months years in prison for the FGM charge, and two years and nine months for the neglect charge. The sentences will also run concurrently.

The Irish Times  March 2021

The legal team are applying for a Court of Appeal directions hearing to assess whether their daughter underwent the procedure. There is disagreement between medical experts regarding what actually happened to the girl and the parents want their daughter re-examined.

Update August 2021

An FGM expert, Dr Birgitta Essen, disputes another’s findings (which led to the parents’ imprisonment) and there may be an appeal.

Nov 2021

The conviction was squashed and the parents released on bail. A retrial may be held.

21 Nov 21

The Berer Blog: FGM guilty conviction in Dublin squashed

Marge Berer suggested the most important reason for quashing the verdict was that two medical experts disagreed over whether FGM had been carried out on the child concerned or not.

And concluded:

It is highly problematic that medical experts can disagree so profoundly about whether or not FGM actually took place, and that a guilty verdict can follow a prosecution in which no information about who carried out the FGM was ever presented. Did the 2019 London trial influence the 2020 Dublin trial? It seemed so at the time. Now, I have to ask, will the reverse occur? Certainly, in light of the Dublin decision to quash the conviction, an appeal against the guilty verdict should be pursued in London – and the sooner the better.

January 2023

A retrial at Dublin’s Criminal Court is scheduled to begin 30 January 2023. This was delayed to June 2023.

July 2023

The Jury were unable to agree a verdict so were dismissed. Another trial will be held starting 15 January 2024. Before the hearing the parents want their daughter examined by an expert for evidence of FGM. They are convinced that medical evidence of the procedure having been carried out will not be found.