Articles on Shifting Sands
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?
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.
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.”
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?
About the Author - Bríd Hehir
Bríd is a retired health professional. She started her career as a (volunteer) nurse and midwife in Africa, in Ethiopia and Botswana, where she worked for almost four years. She encountered FGM/C in Ethiopia. She then moved to London where she worked in the National Health Service as a midwife, community nurse, health visitor, reproductive and sexual health nurse and manager over a period of 30 years. She did not encounter FGM/C during that time despite working with immigrant communities who are reported to practice it still. She is puzzled by the current reported prevalence of the practice, the official response and associated activism. And is worried that they might cause more harm than good.
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