Why the law against FGM should be scrapped

Causing grievous bodily harm, including mutilation, has been outlawed in the UK since time immemorial and has been a statutory offence for over 160 years. Despite this, a law banning female genital mutilation (FGM) was introduced in the UK in 1985. Since then, only one FGM prosecution has been brought to trial, and both defendants were acquitted. There has yet to be a conviction under the FGM Act.

It is curious enough that the statute has hardly ever been used, but there are other reasons why the exception made for FGM to have its own law now needs to be reconsidered. The problem of FGM was initially considered to be so extreme and so prevalent that it was thought that extra protection under the law was needed in a belt-and-braces approach, but we believe this is no longer necessary.

FGM is practised for a variety of cultural reasons and involves the ritual cutting or removal of some or all of the external female genitalia. It has no health benefits, but does have well-documented harms.

One in 10 cases of FGM are the most severe form, known as type 3. This involves the greatest removal of tissue and sewing up of the vaginal entrance. An opening can be made in the scar tissue for childbirth (called “reversal”), but tissue cannot be restored. Doctors can attempt to reconstruct the clitoris, if it has been removed, but the procedure is not always possible, or successful.

Hypocrisy

In children, FGM has parallels with the ritual circumcision of baby boys. Critics think it is inconsistent, if not hypocritical, that one practice is banned while the other is allowed.

In adults, FGM has parallels with cosmetic surgery. Under the FGM Act, it is illegal for a women in the UK to request having her vagina closed again (re-infibulation), following childbirth. It occurs in the few countries that practice type 3 FGM. In the UK, re-infibulation is always considered criminal, maybe protecting women from coercive cultural pressures, but potentially also denying their free choice. On the other hand, the Act specifically exempts those adults who choose to have female cosmetic genital surgery – operations largely performed in the private sector.

For instance, a plastic surgeon who removed a healthy 33-year-old woman’s clitoris, at her request, wasn’t prosecuted under the FGM Act and neither was the psychiatrist who cleared her for the surgery. Given these contradictory positions, opponents of the FGM Act are increasingly wondering whether this is an example of moral relativism and bad law.

Generally, criminal law is intended to prevent or punish an outlawed behaviour. The existence of a law acts symbolically to prevent the outlawed acts. Prosecution is the means to punish them when they occur. The desired end, of having less (or no) FGM, especially of children, is achieved by the absence of FGM, not by the presence of prosecutions.

No longer needed

The demand for prosecutions is a “tough” approach taken by the authorities, but it is not a primary desired end in itself. It may appear counter-intuitive that we think that the lack of successful prosecutions may be supportive evidence that the law is functioning successfully (if not completely) by encouraging positive changes in attitude. We do not advocate scrapping the specific FGM law because it is too difficult to enforce, but because it is no longer needed.

Up to now, the law may have worked by drawing attention to the issue and by setting an expectation of acceptable behaviour for new migrants. But there are difficulties and unintended effects, including concerns that the current law is discriminatory about race.

It has proven difficult to prosecute FGM due to its familial and hidden nature, the shortage of experienced and competent experts, low numbers of reports, and a first failed prosecution of a doctor. In any event, established law already includes FGM in its remit (Offences Against the Person Act 1861) and also safeguards children (Children Act).

So, rather than concentrating on government pressure to achieve a successful prosecution with unnecessary law, we could instead divert scarce resources to continuing prevention – such as education, provision of specialist health clinics and community support services. Also, there is evidence that the communities who practice FGM are giving it up with falling prevalence worldwide, though sadly numbers may still rise due to population growth.

Lastly, the involvement of doctors legitimises surgery. Globally, “medical reasons” are used to justify and perform male infant circumcision. Likewise, medicalisation is used to justify FGM in some countries (Egypt and Malaysia) where doctors perform “female circumcision” more safely under anaesthetic, but still without any therapeutic benefit. The law should bring consistency into medical practice: either by banning male infant circumcision or by recognising the harms of this traditional practice.

Doctors in the UK are faced with two discriminatory conundrums: a consenting adult female with normal genitalia can have major genital modification, yet a new mother who had FGM as a child cannot be re-infibulated; girls cannot undergo genital modification as unconsenting children, but boys can.

Increasingly, bodies representing the professional interests of medical doctors, such as in the Netherlands, are cited as saying the health risks of infant male circumcision outweigh the benefits.

Eroding trust

Finally, in the efforts to prosecute FGM, mandatory reporting and recording of all old and new FGM by doctors has been introduced – which raises concerns about confidentiality and erosion of trust in the medical profession. Doctors do not have to ring the police about other criminal events reported by victims that occurred long ago and elsewhere. This extra reporting may cause a loss in trust, not only of individual patients, but of whole communities.

The UK could introduce consistency with a Child Genital Modification Act which would make any non-medical genital modifications of male and female infants illegal because the medical benefits are negligible, at best, and the risks great. Alternatively, given that we already have criminal law that would cover FGM and inappropriate surgical cuttings by doctors in the Offences Against the Person Act 1861, why do we need the FGM Act at all? It is not fit for purpose and should go.

Lynne Towny, Lecturer in Law, City, University of London

Susan Bewley, Professor of Women’s Health, King’s College London

This was originally published in The Conversation on 1 November 2017. Reprinted with permission.