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Lisbon Court suspended sentence for mother convicted of FGM

Published 25 September 2021 Associated Categories Featured, Legal
FGM sentence suspended for young mother

Lisbon Court suspends sentence to woman convicted of FGM.The mother’s imprisonment would be “a new punishment” for the child.

The child, now four years old, was cut in the genital area when she was one and a half years old, during a trip to Guinea-Bissau

The Lisbon Court of Appeal upheld the appeal lodged by a young woman convicted of the crime of female genital mutilation (FGM) and will suspend the execution of the prison sentence decreed in January of this year for having allowed her baby daughter to undergo the practice during a trip to Guinea-Bissau. R.D. had been sentenced to three years in prison by a panel of judges of the Court of Sintra, in the first case of FGM that came to trial in Portugal. 

In the ruling of the Court of Appeal of Lisbon (TRL), to which PÚBLICO had access, the judges Conceição Gonçalves and Elisa Marques decided to “grant the appeal filed by the defendant, declaring the suspension of execution of the sentence imposed on her for a period of four years.

“The effective completion of the three-year prison sentence by the defendant would not fail to represent a new punishment for her young daughter, already weakened by the suffering inflicted on her, and in need of her mother for her growth,” wrote the magistrates in the TRL ruling, dated July 14, acceding to one of the arguments of the appeal in defense of “the best interests of the child. 

The girl, now about to turn four, was cut in the genital area when she was one and a half years old, during a trip to Guinea-Bissau, leaving a small scar that was classified by an expert as FGM type IV, an atypical form of this cut.

It is estimated that more than 6500 women aged 15 or more have already been victims of genital mutilation in Portugal, and about 1830 girls under the age of 15 have already undergone this practice or are at risk of being so.

To the judges at the Sintra Court, the defendant, now 21 years old, always denied that she had cut or ordered the mutilation of her daughter, emphasizing that she is against the practice of female genital mutilation. “I until now can’t imagine that,” the young woman stated during the trial.

While the first instance court saw special gravity in the fact that the defendant “did not confess the evil practiced” and “was not yet capable of assuming her own responsibility”, for the Lisbon Appeal Court, R.D. “understood, in view of her family context, not to confess the facts”. The judges of the TRL consider that the defendant is “a young mother, then aged 19, unable to overcome the pressure exerted by his family, being in a context of great vulnerability, without conditions to resist the social norms imposed.

Given that the young woman has no criminal record and considering the weight that would be brought by the removal of her daughter, the Court of Appeal considered that the effective prison sentence, which the Court of Sintra had considered necessary based on the requirement of “general prevention”, i.e. sending a signal in the sense of preventing the practice of this crime also in “children and adolescents who are at risk at the moment”, would not be adequate. “We disagree with the decision of the appealed court,” reads the ruling of the Lisbon Court of Appeal. “It is important to consider the personality revealed by the defendant, her living conditions, living with her daughter, still a child, in her family environment.”

“How many levels of discrimination can a woman endure?”

To PÚBLICO, R.D.’s lawyer, J. Gomes da Silva, says he is “satisfied” with the TRL’s decision to suspend a sentence that “was intended to be a deterrent.” “The purpose of this appeal was to suspend the sentence, because we thought it was an excessive sentence, taking into account her age, taking into account her path when she came to Portugal, and taking into account the way the trial went,” he says.

“The impact of the news itself was enough for that woman,” the lawyer adds. Upon hearing the conviction, “she was aware that the world had just collapsed, the whole world talking about a first in history in Portugal.” 

“The court took into account many of the things we asked for, including the double penalty for the child,” who “would be left without a mother and this would compromise his future project,” he adds.

“It will not be through effective imprisonment that both will be able to heal and move on with their lives towards the future that the now appellant has always desired and cherished and dreamed of when she immigrated to Portugal,” said the appeal, quoted in the ruling of the TRL. “How many levels of discrimination can a woman endure, as well as her female offspring?” the defense argument read.

In the appeal to the Lisbon Appeal Court, the defense also stressed that throughout the trial “it was not proven that the defendant was aware and gave her consent to the intervention on her daughter’s genital area”, so “it is questioned how a reasonable doubt as to the existence (or lack of) consent by the applicant in the practice of the intervention in question can result in the effective imprisonment of the same”.

The crime of FGM only became an autonomous crime in the Criminal Code in 2015, as a result of the application to Portuguese law of the Istanbul Convention, the Council of Europe treaty to combat domestic and gender-based violence. With Ana Henriques

What happened to the cases that didn’t make it to court?

PÚBLICO has consulted the seven cases filed in recent years for the possible crime of FGM, where it is clear that the courts are ready to protect the girls (in some cases acting preventively), but also that it is difficult to prove the crime, particularly when it is committed outside the country. Of the nine cases investigated by the Public Ministry up to last year, seven were opened in 2019 – an increase that does not necessarily mean that crime is on the rise, but that the system is starting to work.

16 July 2021

More about the investigation: FGM tried in Portugal for the first time can be accessed here.

https://www.publico.pt/2020/11/13/sociedade/noticia/mutilacao-genital-feminina-julgada-portugal-primeira-1938980

 

 

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