Articles on Shifting Sands
Thoughts on the Old Bailey FGM case
By Barbara Hewson, Barrister
Campaigners and politicians have made much of the recent conviction of a Ugandan mother on a charge of female genital mutilation (FGM) at the Old Bailey on 1 February 2019. Remarkably, given that this procedure has been expressly outlawed in the United Kingdom since 1985, this is the first time that anyone has been successfully prosecuted. There have only been three earlier trials.
The paucity of prosecutions, and the fact of only one conviction in over thirty years, suggest that the actual scale of the practice within the UK has been over-estimated. Campaigners disagree, countering that it is not easy to detect. Nevertheless, there is an ongoing debate about whether resort to the criminal law is the most effective way of tackling this unusual social problem in Western countries.
In this case, the mother is due to be sentenced on March 8th. The maximum term of imprisonment for this offence is fourteen years. Mrs Justice Whipple told her to expect a lengthy jail term. Reporting restrictions are in place.
A number of reputable observers who attended this particular trial, or part of it, have voiced concern about the outcome. They are a distinguished professor of obstetrics, Susan Bewley; a retired nurse, Bríd Hehir, who has written extensively on the topic of FGM, and the respected former editor of the journal Reproductive Health Matters, Marge Berer.
You can find links to Hehir’s and Berer’s accounts of the case at the bottom of this article, as well as a 2015 paper by Berer on FGM.
The law is presently set out in the Female Genital Mutilation Act 2003 (as amended by the Serious Crime Act 2015). Section 1(1) of the 2003 Act prohibits the excision, infibulation or other mutilation of a girl’s labia majora/minora, or clitoris.
There is an express exception for surgical operations performed by registered healthcare professionals, including acts connected with childbirth. Section 3A(1)-(3) makes it an offence for a person with parental responsibility to fail to protect a girl under the age of 16 from FGM.
FGM is a practice principally carried out in the African Sudanic belt – though it also occurs in some communities in the Middle East and Asia. It is seen as a product of cultural, religious and social factors.
In the West, it is viewed as a particularly grave form of human rights abuse of women and girls, which politicians and campaigners wish to stamp out. Expert commentators such as Berer do not take issue with this laudable goal, but question whether resorting to the criminal law is likely to be the most effective way of achieving the elimination of this harmful traditional practice, as compared to education.
The facts of this case were certainly troubling. The victim was a three year old girl, whose mother took her to hospital with genital injuries. They were of a serious nature: one labia minora had been severed, the other was hanging on by a sliver of skin, and the clitoral hood had been cut.
The mother asserted that her daughter had fallen onto a cupboard door while trying to reach a biscuit. Of course, these injuries called for an explanation. The hospital believed that they were non-accidental, and suspected FGM. According to Berer:
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. 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.
The evidential issues in this case boiled down to: who could have done this? According to the medical experts, this required at least two people: a skilled cutter, and someone to hold the child down.
At the time, the parents had separated, but were on amicable terms. The father had come to stay with the mother and the children, following a family bereavement abroad.
Both parents were avid users of smartphones. Berer reports that the timeline of events on the day in question was reconstructed from an astonishing 10,000 pages of evidence retrieved from these phones. No evidence suggesting an arrangement to have the girl cut was found.
The little girl was interviewed a number of times, as was her eight-year old brother. Berer explains that the children initially did not give any evidence to support a charge of deliberate assault. However, they also volunteered details about their family life – not strictly germane to the incident in question – which they later retracted, stating that they had made things up. This raised obvious questions about their reliability, of course.
The girl was interviewed on three occasions by two social workers. On the first two occasions, Berer states, “she was allowed to run around the room, draw pictures, chatter, laugh.” However, the third interview was conducted very differently.
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.
I would have concerns about these methods of eliciting evidence, especially in such a young child.
Eventually the girl claimed that she had been “cut” by a white woman with silver hair, whom her parents called “a witch”. She was adamant that this happened while she was standing up. But, as Berer notes, this is impossible. No FGM procedures are performed with the subject standing.
Another most unusual feature of this case is that the parents in this case did not come from a community where FGM is practised. Indeed, the accused mother denied all knowledge of the practice.
The father – who was Ghanaian, and a religious Muslim – was acquitted of all charges. He claimed that he was out when the incident occurred. With scant regard for this outcome, DCI Baker of the Met’s child abuse command nevertheless told the press:
this is a case about a very young girl who was subjected to horrific abuse at the hands of two defendants, her parents.
The most extraordinary feature of all was the mother’s belief in witchcraft: police found a certain amount of paraphernalia at the family home, including limes placed in the freezer (with messages aiming to silence public officials) and ox tongues with nails in them. The evidence of such primitivism must have been very damaging to the mother’s cause, as far as the jury was concerned.
Even the police were asked whether they had suffered ill-effects as a consequence of her behaviour. According to a report in the Evening Standard, DCI Baker told reporters: “none of his officers had suffered any ill effects that could be explained by spells.”
Berer reserves her strongest criticism for the prosecution, in seeking to link the practice of FGM with witchcraft. Not only is this linkage completely unfounded in fact, it was highly prejudicial to the mother.
Viewed as a whole, one might have thought that this was a case where, however disturbing the evidence, nevertheless there was room for doubt as to whether the mother was responsible. In criminal cases, the standard of proof is beyond reasonable doubt. The jury must be certain or, as the present formulation has it, they must be satisfied so that they feel sure.
The problem, however, in cases involving child abuse in its myriad forms is that juries may, in practice, feel that it is legitimate to convict on a lesser standard.
This was posted by Barbara Hewson on her blog Feb 13 2019 and is published here with her permission. She is a freelance journalist and writer, barrister and newbie blogger.
Update 11.03.19. The Judge’s sentencing remarks can be accessed here.
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