FGM/C Shifting Sands

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Verdict: Female circumcision is not mutilation

Published 24 Sep 2018 Associated Categories Language, Legal
Aus trial not Mutilation

In Australia, in 2015, three Dawoodi Bohras (a small Shia Muslim sect) were convicted under the Australian FGM law of New South Wales (NSW), one for performing female genital mutilation (FGM), the mother of the two girls on whom it was performed, for requesting the procedure and taking part in it, and the local priest for being an accessory after the fact and not reporting it to the authorities.

Crucial in the trial hearing was whether what was done to the girls amounted to a mutilation, as for it to be a crime in NSW, the procedure has to be an excision, infibulation or a mutilation. Since there was clearly no evidence of an excision or an infibulation, the case hung around the definition of “mutilation”. The trial judge, in a remarkable feat of mental acrobatics, defined the term mutilation, not by its ordinary dictionary or case-law meaning, but by assuming that anything done to female genitalia must be a mutilation simply because it is called female genital mutilation (FGM) by WHO!

This is the power of terminology

Here was a case in which even if there was no sign of injury, and medical examinations carried out as part of the trial process showed that the genitalia of the circumcised girls were no different to those of uncircumcised girls, the procedure could still be deemed to be a mutilation simply by applying the term FGM to it!

Not only was the logic baffling, but it showed the gross injustice and violation of human rights that WHO perpetrates daily by promoting the use of this inflammatory and unfair term on practices that are clearly non-mutilatory.

On 10 August 2018, the appeal judges handed out their judgement in a case known as A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174. Good sense prevailed and the three appealants were fully acquitted of all alleged crime.

The judgement stated in para 521:

For the reasons set out above, we have concluded, on balance, that the extrinsic materials relied on by his Honour do not permit a construction of “mutilates” that departs from its ordinary meaning and we consider that its ordinary meaning connotes injury or damage that is more than superficial and which renders the body part in question imperfect or irreparably damaged in some fashion. It follows that we have concluded, with the greatest of respect for his Honour’s careful analysis of the legislation, that his Honour misconstrued the meaning of “mutilates” and hence misdirected the jury as to an essential element of the offence.’

The judgement therefore shows clearly that female circumcision, at least as that practiced on the two girls in Sydney Australia, did not amount to mutilation, and the obvious conclusion therefore, is that it did not amount to FGM as defined by WHO. Since the Dawoodi Bohras are a small, closely knit and disciplined community, it follows that circumcision is likely to be uniformly practiced within the community, and one can therefore reasonably assume that female circumcision amongst the Dawoodi Bohras is non-mutilatory and should not be termed FGM.

Isn’t is time WHO stopped using this inflammatory term to further its advocacy objectives and allowed use of fair terminology and descriptions that make room for debate on this issue?

Fc.org WebAuthor

First published on FemaleCircumcision.org 26 Aug 2018 and reproduced here with permission.

Other reports/analysis about the Australian trial can be accessed here and here. And about the impending US trial here, here and here.

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