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How an FGM trial became one about witchcraft

Published 10 February 2019 Associated Categories Legal
Why was witchcraft part of fem trial?

This is the fifth time that FGM has gone to trial in England since 2014. Essay by Marge Berer

It is the first in which someone has been convicted. I attended most of the trial and shared notes with a colleague covering the days each of us was unable to attend. In spite of the punitive conditions for observers in the Central Criminal Court, including difficulty hearing those in the courtroom, what happened was clear: a woman was convicted of both FGM and witchcraft.

A few women’s rights advocates and health professionals have publicly opposed the way the criminalisation of FGM has played out in the UK,[1],[2] but more are recognising the demonisation of individuals, mainly from African communities who may have traditionally practised it, who are being treated with suspicion due to their ethnicity. FGM is a harmful traditional practice, but I believe it will only disappear when its practitioners become convinced among themselves that it is harmful. For this to happen, I believe education, understanding and support to alleviate its harms are the way forward. And with others, I believe there should be no further prosecutions.[3]

The trial took place from 14 January to 1 February 2019. This paper discusses my understanding of what happened during the trial and the issues it raises.

Although this is the first conviction since FGM was criminalised in 1985, the hegemonic belief is that many wily FGM practitioners have been escaping justice, based on inaccurate and exaggerated estimates of how many girls in the UK may be at risk, repeated in mainstream media. In the four previous trials, well-deserved acquittals made the police and the Crown Prosecution Service look bad. This was a high profile case, watched by many who wanted blood.

The case

The case involved a woman and a man from two different African countries, their daughter aged 3 in August 2017, and her son, aged 8.[4] At that time, the couple were no longer in a relationship but had remained good friends, living near each other and amiably sharing responsibility for the two children. On 26 August, the father’s mother died in his home country unexpectedly. He was devastated and spent most of his time over that weekend in the back garden of the mother’s flat, texting and on the phone with his family there, who were preparing the funeral. He stayed overnight as well, because he couldn’t bear to be alone, and slept in the sitting room. The children, who both lived with the mother, slept in the one bedroom with her.

On 27 August, the girl was running about inside and fell against the television, bruising her head, which caused bleeding. The mother called 999 but ambulances were in short supply. The bleeding stopped, the girl seemed fine, so the ambulance was cancelled. The little girl clearly enjoyed running about and was said to imitate her brother a lot, including his penchant for climbing on things.

On 28 August, when FGM was alleged to take place, the father was there in the morning, left to go back to his room to shower and returned. He was in the back garden with the girl, on the phone with his family. She was wearing a long dress and wellies and was happy and running about. It was noted that she was not wearing knickers, though he did not know that. The girl asked him if she could have a biscuit. They went up the stairs into the kitchen where he got her a biscuit from a bowl sitting on top the microwave on the counter. They went back outside together and he got back on the phone. 

Not long after, she said she wanted to go to her mother, and went inside on her own. The father said when questioned that a minute (or a few minutes) later, the girl was suddenly crying/screaming. He says he went inside as soon as he heard her. The mother and brother said they had been watching TV in the sitting room. The girl said she had climbed up onto the counter in the kitchen to get another biscuit and had fallen onto the open door of the cupboard below. No one else saw it happen. The cupboard door’s upper edge was a U-shape, with narrow protruding edges, described as “sharp metal edges”. She was bleeding from her genitals. Someone wrapped her in a towel, which was afterwards full of blood stains and was put into the washing machine and left there, unwashed, found the next day by police. 

The mother called 999, who told her how to stop the bleeding. Due to the shortage of ambulances, it was decided to take her to hospital by taxi. Mother took the girl to the toilet as the girl said she had to wee and cleaned her up there, trying to stop the bleeding. As they were leaving, mother asked father to take a photo of the cupboard door on his phone to show the hospital where she had hurt herself. Father said he had cleaned the blood up in the kitchen and the toilet room later that evening.

As I understood from the evidence, if FGM took place, it must have happened at the point when the girl said she fell onto the cupboard door, but I do not see how, because there was not enough time for it to happen in.

At the hospital A&E, the nurse called in a resident to see the girl. The resident suspected FGM and contacted the on-call consultant, who has experience of FGM. The resident didn’t say what he thought, just asked the consultant to examine her. Consultant said he thought the girl had had FGM. One of her inner labia was cut off completely. The tissue was not found. The other had also been cut but the tissue was still attached, described as “hanging by a thread”. There was a small cut around part of her clitoris. There was also a haematoma. The girl had to have anaesthesia as the examination was causing a lot of pain; suture of the tissue was done. She had lost so much blood that a transfusion was considered but not required. Mother stayed with her overnight. Father took the boy home; they returned to the hospital the next day.

The police were notified and came to the hospital the next day. Both parents were arrested. Boy was taken into emergency foster care. When girl was released, she went to the same foster mother, who kept them for almost two months. In late October, foster mother said in written evidence she couldn’t cope with them on top of four children of her own. It was not stated why. The children were moved to another foster home in early November 2017, and have been there since.

FGM in a three-year-old

One of the doctors who was a witness said that in a child this small, the inner labia would each be only about 1 cm long. The cuts would require skill and be very painful.[5] Only someone practised at FGM on small children could manage that in a short space of time. The girl would have to be held down, most probably by more than one person. The outer labia (about 3 cm long) would have to be held open. No one could have done this alone. Yet no evidence was found that anyone else was in the flat that day, and no cutting instrument was found.

Why a guilty verdict?

I believe the mother was found guilty for three reasons: 1) four doctors were sure the labia cuts looked like FGM, not injuries from a fall; 2) in the absence of direct evidence, the mother’s character was attacked and her credibility destroyed over the course of the trial, mostly through accusations that she practised witchcraft and spells and consorted with and took advice from several dubious-sounding men; and 3) both children made contradictory statements about what had happened as time went on.

The medical opinions

Four different doctors examined the girl’s genitals, at least two of them after she had been sutured. They all said that while the damage could have been caused by her falling on the cupboard door, and that one “could never say never”, none of them thought she had fallen. They all thought she had been cut because the tissue was not jagged. They said a “straddle injury” – falling onto the door with her legs on either side – would have caused different injuries as well as bruising, and that cuts in three different places from one fall were highly unlikely. Also, they said, there was no visible bruising, which would be expected.[6] Only the paediatric forensic pathologist had never seen a labial FGM-type cut. The others had a lot of experience. But…

The evidence

The timeline of events and movement on the day in question were based on 10,000 pages of details from the parents’ smart phone usage (both were constantly on their phones). The father’s barrister found proof of his absence at the time in question in that evidence, but said only a handful of those pages were relevant.

Given the very short space of time between the girl going back indoors and then starting to scream, if someone had cut her, it must have happened then. Who could have done it, using what instrument? Where? The police detected no traces of blood on the cupboard door or the kitchen floor, yet the father described cleaning a lot of blood up. No other place where cutting could have taken place was identified. How could the police not have found something?

Where could a cutting knife have been disposed of between the time the girl was found bleeding and taken to hospital? The mother did not go home again until after the police had visited the flat. One police officer, according to the Evening Standard, said he refused to rule out the involvement of a third party, but investigators found no such evidence to present in court.[7]

Without direct proof of anyone’s guilt, surely there is “reasonable doubt” as to what happened? This was not expressed strongly by anyone in court, except the mother herself who insisted, again and again, from the first moment she was questioned at the hospital until the moment she was found guilty, that she had not done it.

Both parents were interviewed (August 2017, November 2017, January 2018), as well as social workers for the parents and children. Much of this was presented in writing, and read out in court. The two foster mothers were interviewed; only one came to court. Both children were interviewed (the girl 3 times and the boy 4 times), including the boy (unexpectedly) on the cusp of the trial opening. The interviews with the children were videoed and shown in court. Both parents were questioned by the Crown and both their barristers for many hours over several days. In spite of intense and aggressive questioning by the Crown, both insisted on their innocence.

The father believed his daughter, her mother and brother, who all said the girl had fallen on the cupboard door. When questioned by the Crown, however, he was pushed to agree that hearing the medical opinions had made him believe his daughter had been cut. Yet it would have been impossible for anyone without relevant medical knowledge to question let alone reject those opinions. This “admission” was treated as accepting the mother’s guilt, however, even though the father stood by the mother until the trial. And he never changed his insistence that she had never said or done anything to make him believe she had had their daughter cut, let alone done it herself.

False claims that FGM is linked to witchcraft

Early in the trial a so-called expert witness for the Crown claimed (in a letter, not in court) that FGM and witchcraft in Africa are related. The implication was that anyone who practises witchcraft is also capable of and willing to practise FGM. There is no evidence for this. The mother’s defence team, presumably recognising the damage, brought a letter from a counter-witness who said the practice of witchcraft and FGM are not connected, but this was probably too late in the trial to make a difference.

The mother denied she believed in or practised “witchcraft”. It didn’t help her. She did acknowledge that she sometimes used “spells” to ward off danger to herself and her family, and to try to make trouble go away, and that she had taken advice by phone from a traditional spiritual advisor in Africa, whom she had never met, on “cleansing herself” while she was awaiting trial. Some of the “spells” came from an easily accessible website. One involved crushing half a lemon with a powder called alum on it under foot. These were harmless and I believe they should have been dismissed as irrelevant and not admitted in evidence – precisely because they did not and should not have been used to implicate her in FGM. Indeed, the defence tried to have at least some of this so-called “evidence” made inadmissible, but the judge refused.

This was willy-nilly a gift to the Crown, who successfully demonised the mother by giving “witchcraft” undue prominence and providing the court with every last detail (verbally and visually) of some of the practices, especially the most unpleasant ones. She tried to smear the father with it as well, but his insistence that he was a religious Muslim and did not believe in witchcraft deflected that.

Witchcraft played an important role outside the courtroom as well. Within an hour of the verdict being announced, the mother and FGM were associated with witchcraft in the media too. Perhaps these journalists believe in witchcraft themselves. For example, the Evening Standard asked one of the policemen involved if any of his officers had suffered any ill effects that could be explained by “spells”.[7]

In her summing up, the judge stressed a number of times that some of the mother’s beliefs and behaviour related to witchcraft must not be taken as evidence of guilt, even if they were “repulsive” to the jury or “made them uncomfortable”. While this was correct as a point of law, I believe it may have added to the negative image of the mother, already accomplished so effectively by the Crown. Yet surely it is obvious that the “spells” were because the mother felt powerless and wanted it all to go away.

Many innocent women were killed for witchcraft in this and other countries in earlier centuries. It seems a belief in witchcraft exists even today in this supposedly civilised country. The link with FGM was stressed in every news report I saw, including BBC News.

Where did this ill-conceived and false link come from?

As far as I have been able to discern, it originated from the National FGM Centre, who are connected with Barnardo’s charity. On 20 January, I wrote to the senior press officer at Barnardo’s asking if he would send me the evidence they had for this link. The answer came back only on 2 February, after two follow-up requests – but the trial was over. The evidence was contained in a table with quotes and the following sources:

•An article on an obscure website called Refinery29, which was reprinted in full by the Evening Standard, whose evidence for this link was that Barnardo’s/National FGM Centre had told the author there was a link. Yet this same article was cited by Barnardo’s as their source that a link existed.

•A quote from a 2015 article about FGM on the website of broadly.vice, whose only mention of witchcraft was the following: “During one cutting procedure, the girl collapsed. Her elders’ explanation? ‘They tell you it’s witchcraft,’ she says. ‘If the girl dies, they’ll just say it’s because the mother is a witch’.” In other words, witchcraft is blamed for killing the child so that the real reason she died remains hidden. This is not a link as alleged.

•A quote from a 2015 blog on the Orchid Project website, in which the only reference to witchcraft was the following quote: “Many people in Kuria [Kenya] fear the ‘witchcraft’ used by the Elders to incite people to cut their girls. They believe the Elders can reach out through this witchcraft and harm them and their loved ones.” This describes using fear of witchcraft as a form of control, to force unwilling parents to allow their daughters to be cut, but again, not showing the alleged link.

•A quote from a 2009 publication entitled What is FGM? by Africans Unite Against Abuse, as follows: “It is believed that un-mutilated girls and women are unclean, promiscuous, and unmarriageable. It is also believed that the clitoris can be used to bewitch husbands and make it impossible for them to take more wives. In this instance, women who would not permit their husbands to take more wives are branded witches.” Beliefs about uncut women being unclean, promiscuous and unmarriageable were widely held historically, but much has changed. In a DFID meeting I attended on this subject in London some years back, a number of women from FGM-practising countries said that if the marriageability issue were resolved, i.e. convincing men to accept an uncut wife, FGM would quickly disappear.

•A 2013 article by Johansen R et al in the journal Obstetrics & Gynaecology International (pp.1-10), quoted in a Barnardo’s publication, as follows: “One study in the Gambia and Senegal showed that only those who were already critical to FGM believed in the information of health risks [25,26]. One reason for this is that the immediate complications of FGM are often attributed to other factors such as witchcraft or evil spirits [27,28].” This is not proof of a link either.

That was itno credible evidence of a link between the practice of FGM and the practice of witchcraft. But meanwhile, a woman is going down for it. Yes, dear reader, witchcraft is powerful.

But let’s return to facts. It is important to point out that when first accused by the police of FGM, the mother had asked them what FGM was, because she had never heard of it. She said FGM is not practised in the ethnic group she comes from. Indeed, in her country of origin, only 0.3% of girls/women have had FGM, mostly in one small part of the country, and only about 54% of women nationally had ever heard of FGM.[8]

This mother was never cut herself; she offered to have her genitals examined to prove it. She said no one in her family or ethnic group had been cut either. The ethnic group the father comes from does not practise FGM either, and he said no one in his family has ever been cut. This is critically important because there is no evidence that adults who come from non-FGM-practising backgrounds in Africa practise FGM. If these facts were put forward in defence of both parents, however, they were neither heard nor taken account of.

Evidence from the children

The children’s evidence from 28 August 2017 to 13 January 2019 was collected through formal interviews that were videotaped, as well as in reports of conversations they had with social workers and the foster mother who they lived with from 3 November 2017 until the trial. What both children said over most of that period was consistent but then, later, contradictory. In her summing up, the judge told the jury that they needed to decide whether the children’s evidence was reliable or unreliable. This is serious because their evidence was not only admitted, but was given a huge amount of time and attention throughout the trial. It was in fact key.

Both the children said until each of their last interviews that the girl had hurt herself by falling on the door. Then, separately, to different people and each at a different point in time, they said they had lied. These claims were damning because they were not retracted (if indeed anyone kept asking, in case they changed their minds again) and must surely have influenced the verdicts more than any other evidence.

The reason the children’s evidence could be considered unreliable was because both of them had made up elaborate stories at different moments when being interviewed, that were complete fantasies. The boy invented a family summer holiday trip to Blackpool replete with details and what a good time they had all had, but it had never happened. The girl made up a story about what happened at her foster mother’s house when she was bathed – that an adult male relative of her foster mother would bathe her while she was naked, that her foster mother and her brother were also in the bathroom, and that her brother would cover his eyes so he couldn’t see her. She also claimed that the male relative had touched her inappropriately on her private parts. She even drew pictures about it. Then she said it was all untrue, just a joke. Children, right!

In a case like this, lasting almost 18 months, the children would be exposed to many conversations among the adults around them – hospital staff, medical experts, police, social workers, foster parents – who may not have noticed the children were listening or realised they could understand (or misunderstand) what was being said. Who can say how that influenced them, except that each of them felt they were to blame for what was happening.

The court was shown videos of all three interviews with the girl, all with the same two social workers. In the first two interviews, she was allowed to run around the room, draw pictures, chatter, laugh. Each time, she was asked questions to try and probe whether she had fallen or been cut. For example, it was considered significant that when asked to point out things that were wood, plastic and paper, she was able to do so, but she did not know what metal was – even though she had claimed she had fallen on the metal on the cupboard drawer. Her third and last interview, took place (I believe) because of what the girl told her foster mother as a secret. She said she knew that: a) people who go to jail are bad, b) her mother was bad, c) her mother was going to jail, and then d) that she had lied, that she had been cut. This was of course reported onwards. In the third interview, the girl was again asked how she had hurt her private parts, and at first she again said she had fallen when trying to get a biscuit. But she was pressed and questioned increasingly heavily and made to feel she had done something wrong. There was no running about this time. No laughter. As the social workers continued to question her, sitting cross-legged on the floor facing each other with her in the middle, the one woman wrapped her in a small blanket and clamped her into her lap facing the other woman, and they continued to ask questions until the girl said she had been cut. Oh!

But here is what was said: The girl said there was another woman in her mother’s kitchen that day. The woman had pink skin (Was she black like you or white like me?), old (Was she young or old?), with silver hair (What colour was her hair?), and had hurt her on her private parts (Where did she hurt you?). She also said she had been standing up when it happened (Were you lying down? No, I was standing up). When asked what the woman’s name was, she replied that her mother had called the woman a witch.

The father was asked, in giving evidence, whether the mother had any women friends who were white who came to the flat. No, he said, except for one neighbour, who had been there perhaps a month before. Two of us observing the trial wondered whether this woman might have been someone at the hospital involved in examining or repairing her labia. In any case, no such woman was ever identified.

As a description of FGM, this story is not credible. The damage to her labia (1 cm) could surely not have been caused by cutting while she was standing up, no matter how skilled the cutter. Do old, fat, white women with silver hair carry out FGM here? No. Indeed, the girl also said at another moment that her parents had held her while she was cut. So, was any of this true? Surely to express disbelief would be fair. Yet no one did.

I did not watch the four interviews with the boy except for the first 10 minutes of the first one. But no witness placed him where he would have been able to see the fall (or cutting) of the girl. In all four of his interviews he said the girl fell in the kitchen and injured herself. But the day before the trial started, he told the foster mother he wanted to write a letter to one of the policewomen and to one of the social workers. The foster mother gave him two sheets of paper, a pen and envelopes. He wrote the letters, she said, alone in his room. 

When the foster mother told the police why he had told her he wanted to write them, his reply to her was either: “I want to tell the truth” or “I want to prove our case”. These two versions of what he said were both reported in court because after handing in the boy’s letters, the foster mother had made a statement to the police in her own language, which was translated into written English by an interpreter. She was not shown a copy of what she had said in her own language, only the text in English to sign.[9] This came out during her evidence in court. In any case, the letters were almost identical. In both, he said he had lied and that his mother sometimes told lies to get out of trouble. One of his letters was read to camera by him and signed by him, and shown in court. Arrangements were made to bring the boy to court on 28 January to corroborate what he had said. But on the morning, he refused to attend.

What was going on for him in all this? He seemed a shy, soft-spoken boy who was described as very anxious about what was going to happen to him and his sister, and whether he would ever go back to his mother or not.

The ethics of depending on children as witnesses

According to InBrief, subject to some exceptions, unreliable evidence is normally excluded from trials. InBrief also states that “the Youth Justice and Criminal Evidence Act 1999, section 53(1) says that at every stage in criminal proceedings all individuals are (whatever their age) competent to give evidence”. But “a child’s competency depends on their understanding and not their age”. Was this little girl competent to give accurate evidence more than a year after the incident happened? Could her brother have been expected to know what happened?

The 2011 Guidelines in Relation to Children Giving Evidence in Family Proceedings[10] specify that “in deciding whether a child should give evidence, the court’s principal objective should be achieving a fair trial. With that objective the court should carry out a balancing exercise between the following primary considerations: i) the possible advantages that the child being called will bring to the determination of truth balanced against; ii) the possible damage to the child’s welfare from giving evidence i.e. the risk of harm to the child from giving evidence….”

Over 25 serious considerations are then listed to take into account. These include: whether the case depends on the child’s allegations alone; corroborative evidence; the length of time since the events in question; whether the child has retracted allegations; and much more. Working from these guidelines, should the children’s evidence have been admitted the way it was?

What will happen to this family?

The father had already lost a wife and daughter, who had died in a car accident in his home country before he came to the UK. While awaiting trial, he lost his job and the room he was living in. His visa to remain in the UK expired while he was in detention before the trial – for having broken his bail conditions by talking to the children’s mother. Will he have a difficult fight on his hands to gain custody of his daughter, whom he adores, as well as custody of the boy, whom he also loves dearly, even though their mother will probably be in prison a long time? Is he at risk of being deported? Why otherwise, although he was acquitted of all charges, was he not released at the end of the trial? Will the mother too be deported? Will the children be forced to stay in foster care until they are of age? This family’s lives have been blighted. Was this justice or an outcome worth achieving?

Final thoughts

How might this trial have ended had the children’s evidence and the evidence on witchcraft and spells been excluded? I question whether it was proven beyond a reasonable doubt that the mother was guilty of FGM. I also have to ask about the children’s long-term well-being, given their pivotal role in condemning their mother. Lastly, considering the backdrop of witchcraft pervading this trial, and the hope for a guilty verdict by far too many people watching it, it seemed far too close to what I fear witchcraft trials in the past must have been like.

The use of the criminal law and current requirements on the NHS and others to report cases in the UK have been seriously damaging. Should FGM be treated the same as other child abuse? Though harmful, it was a communal rite of passage into adulthood in Africa for girls in the ethnic groups who practised it. There is growing evidence that it is happening less than in the past, including among women who have come to the UK,[11] and that it never was much done here.

I believe the UK government, Parliament, Crown Prosecution Service, members of the judiciary and legal profession, the police and the NHS must reconsider and call a halt to further FGM prosecutions, and join with the communities among whom FGM used to be a traditional practice, who are saying they feel oppressed and silenced by current UK law and practice, to find a better way forward. A positive approach is far preferable, including in schools; specialist clinics for women with complications of FGM[12] are a good example of the way forward.

FURTHER READING

See my blog for articles on previous FGM trials, the blog A miscarriage of justice by Brid Hehir, 5 February 2019 on this trial, blogs about FGM on Shifting Sands, and articles in Reproductive Health Matters about FGM around the world.

REFERENCES

[1] “Current response is disproportionate and should be reconsidered.” Sarah M Creighton, Zimran Samuel, Naana Otoo-Oyortey, Deborah Hodes. Tackling female genital mutilation in the UK. BMJ, 2019;364:I15.

[2] Brenda Kelly, Filsan Ali. The narrative around FGM needs to move beyond prosecution. BMJ Blogs, 15 February 2018.

[3] Marge Berer. The history and role of the criminal law in anti-FGM campaigns: Is the criminal law what is needed, at least in countries like Great Britain? Reproductive Health Matters 2015;23(20).

[4] I will call them mother, father, girl and boy here, as nothing can be published that might identify them, by court order.

[5] From a skilled FGM cutter in Kenya, 2015: “…It can be slippery, so we use some ash to get a good grip. There are veins there. It’s very difficult, very technical. You have to be really careful.” Broadly Vice.

[6] The haematoma apparently did not count.

[7] Evening Standard, by Katy Clifton, 1 February 2019.

[8] I will not give details of the source (a 2016 Demographic & Health survey) because it identifies her country.

[9] Issues of English as a second language, translation and interpreters in this trial also deserve examining.

[10] This is not applied to criminal proceedings in the guidance.

[11] FGM has stopped in Wales but women still ‘persecuted’, by Sarah Hibbard. BBC Wales News, 12 June 2018.

[12] NHS Specialist Services for Female Genital Mutilation. NHS England, October 2017.

This was first published in The Berer Blog 10 Feb 2019 and re-published here with permission.

Shifting Sands assessment of the trial can be accessed here.

A barrister comments here and a blogger here.

Update 11.03.19. The Judge’s sentencing remarks can be accessed here.

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