Submission to the Home Affairs Committee:
Inquiry into Female Genital Mutilation
Executive Summary

A major barrier to prosecution in the UK has been the identification of victims of Female
Genital Mutilation (“FGM”).

FGM is a human rights issue for all women and is not limited to child abuse, as it is currently understood in English law. A more inclusive approach to protection from FGM will help ensure identification of all potential victims.

French practices in identifying victims of FGM cases have led to a higher number of prosecutions resulting in conviction, but give rise to certain concerns which would have to be considered and addressed before the introduction of similar, more onerous methods in the
UK.

Efforts to eradicate FGM must also involve education of affected communities in the reasons underpinning the law and the health consequences of FGM. Educated communities are less likely to practice FGM in the first place, and are also more likely to self-report deviant cases.
France and Senegal offer instructive comparative examples in successful education policies.
1. Introduction – The UCL Graduate Law Society
1.1 The UCL Graduate Law Society (“UCLGLS”) is the organisation representing all graduate students in the UCL Faculty of Laws. UCLGLS membership comprises over 400 students from 69 countries, studying within 17 specialty fields of legal study.
1.2 In 2014 the UCLGLS established a project through which graduate students could substantially assist the work of Parliament through research-based submissions to parliamentary committees.
1.3 Our submissions and recommendations draw on our contributors’ research skills and particular expertise in their chosen fields of study. Further, by drawing on our members’ diverse backgrounds we offer a unique opportunity for comparative perspective on issues considered by the UK Parliament.
1.4 In 2014 Faculty Advisor to the UCLGLS pro bono project is Colm O’Cinneide, Reader in
Law at UCL. Submissions of the UCLGLS are not endorsed by Mr O’Cinneide, UCL or the
UCL Faculty of Laws.
2. Outline of submission
2.1 We welcome the opportunity to make a submission to the Home Affairs Committee (“the
Committee”) Inquiry into the issue of Female Genital Mutilation in the UK. bentham house, endsleigh gardens, london wc1h 0eg

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2.2 In its inquiry the Committee will consider, inter alia
, ‘[h]ow effective is the existing legislative framework on FGM, and what are the barriers to achieving a successful prosecution in the UK?’; ‘[h]ow can the systems for collecting and sharing information on
FGM be improved?’; and, ‘[h]ow effective are existing efforts to raise awareness of FGM?’.
2.3 This submission will address the above questions and consider the comparative example of
France where prosecution to conviction has been more common. We identify the need for an inclusive approach to FGM, not limited to its characterisation as child abuse; acknowledge the French success at identifying victims of FGM; emphasise the need for caution and concern for victims’ dignity if the UK is to introduce similar policies of mandatory medical inspections; and, acknowledge the importance of education in reducing the overall prevalence of FGM and as an aide to identification of victims.
3. Barrier to prosecution in the UK: Identification of victims
3.1 In the 28 years of specialised law criminalising FGM in the United Kingdom there has not been a single successful prosecution. Nevertheless, the NHS estimates that there are 20,000 girls under the age of 15 at risk of female genital mutilation each year, and 66,000 victims living with the consequences of the practice.
1
It has been acknowledged that one of the key problems the UK has faced in protecting girls from FGM has been identifying potential and actual victims.
3.2 One aspect of the problem of identification is the UK’s treatment of FGM as an issue of child abuse. However, FGM should also be seen more broadly as a form of torture, as has been accepted by the European Court of Human Rights case of Opuz v Turkey
2
and by the UN
Special Rapporteur on Torture in his 2004 Report.
3
The UK thus has a positive obligation in international law to protect all women and children affected by FGM. The UK’s approach to
FGM as child abuse risks marginalising potential and actual victims over the age of 16. For example, the category of FGM known as ‘infibulation’ involves the stitching of the genital area, and is often repeated throughout a woman’s life, such as stitching opened for childbirth and then ‘reinfibulated’.
4
Further, a number of uncircumcised women are forced into the procedure by their husbands after marriage.
5
To ensure that the UK law accounts for all potential victims of FGM, it should reflect more precisely that FGM is a form of torture, capable of affecting grown women as well as children. We acknowledge that such revision may call for Parliament to reconsider the status of consent in cases of FGM.
3.3 Another barrier to prosecution has been a lack of information from medical professionals with direct knowledge of victims of FGM. Gaining court orders for medical examinations has proved extremely difficult.
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1 http://www.nhs.uk/Conditions/female-genital-mutilation/Pages/Introduction.aspx
.
2
[2009] ECHR, 33401/02.
3
“Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,”, M. Nowak, A/HRC/7/3 (15th January 2008) (para 45-46).
4
For a detailed outline of the practice of infibulatation and reinfibulation of women see: http://www.who.int/reproductivehealth/topics/fgm/fgm_reinfibulation_central_Sudan/en/ .
5
Aleinikoff., Martin., Motomura., Fullerton's., “ Immigration Law: Immigration and Citizenship” (Aspen
Publishers: 2008) 57.
6 http://www.theguardian.com/law/2012/nov/13/female-genital-mutilation-prosection-uk .

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3.4 France is considered to be among the most successful countries in the world in prosecuting
FGM. To date it has successfully convicted approximately 100 people for FGM-related crimes, and has seen significant reductions in the number of reported cases.
7
As we will describe in more detail below, prosecutorial approaches in France have in part resolved the dilemma of identifying victims through a system of mandatory medical checks.
4. FGM in France
A. Appropriateness of comparison
4.1 We acknowledge inherent differences between criminal procedure in the UK and France which call into question the appropriateness of direct comparison of the two systems.
4.2 In summary the key differences, relevant to the prosecution of FGM-related crimes, are as follows:
(a) French process is more inquisitorial in nature, compared to the British adversarial system;
(b) The French investigative judge (who is present in all cases dealing with serious crime) has wide powers of supervision over the police investigation;
(c) In France ‘[t]he victim enjoys a more formal status and role within the investigation and trial phases…the preamble to the Criminal Procedure Code contains a reference to the duty of the judiciary to guarantee the rights of the victim throughout the criminal process’.
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4.3 We nevertheless consider that comparison is appropriate in the circumstances. As we will show, the greater number of French prosecutions is more directly a result of the rigorous system of identifying victims than any difference in the legal systems. Further, with particular regard to our concerns for victims’ dignity specified in paragraphs 4.7-4.8, the priority given to victims’ rights in France, if anything, makes our concern for victim welfare in the UK all the more pertinent. In the absence of similar safeguards any attempt to emulate
French investigative practice should be approached with special caution.
B. The French approach to prosecution of FGM-related crimes
4.4 France has no specific law against FGM. FGM-related crimes are prosecuted under much broader violent crimes, such as torture and barbarity, acts involving intended bodily harm, causing permanent infirmity or mutilation. These crimes are punished more severely when committed against a minor.
9
Offenders may also be charged under Child Protection Law, the
Domestic Violence Act and the Act Reforming Children’s Protective Provisions.
10
7 http://www.independent.co.uk/news/world/europe/the-french-way-a-better-approach-to-fighting-fgm-
9006369.html
.
8
New Zealand Law Commission, “French Criminal Procedure”, Descriptions of European Systems (2012),
<http://www.lawcom.govt.nz/content/descriptions-european-systems>, (last visited 7 February 2014).
9
Code Pénal: Torture and Acts Barbarity, Articles 221−2, 222−3 and 222−5; Violence Causing Permanent
Infirmity or Mutilation, Articles 222−9 and 222−10
10
Costelloe S., “Policy regimes toward Female Genital Mutilation: A comparative analysis of the strategies for eradication in France and The Netherlands” (1998) 8, accessed at:

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4.5 A key factor in the success of France in identifying victims is the Professional Secrecy Law which states that medical practitioners, usually bound to protect the classified information collected from patients, must nevertheless report cases of physical abuse against children.
11
French law also criminalises acts of omission. Non-assistance to a person in danger can lead to five years of imprisonment and €75,000 fine.
12
4.6 The Protection Maternelle Infantile, a state-funded medical body, conducts check-ups to pregnant women and children in the first six years of their lives.
13
Checks take place within the first 8 days of birth, once a month for the first six months of a child’s life, again at nine and twelve months, three times during the second year, and twice a year until the sixth year.
14
Receipt of social security in France is dependent upon participation in these medical examinations. Examination includes inspection of a female child’s genitals for signs of
FGM.
15
The “process results in the highest rates of detection of FGM” and is one of the most significant factors in the high number of successful prosecutions.
16
C. Cause for caution
4.7 Though they have been essential to resolving the dilemma of identifying victims in France, the French mandatory inspections have been controversial for the following reasons:
(a) Compulsory examinations to the age of six have been said to have resulted in some parents waiting until the child has passed that age to carry out the procedure
17
, thereby merely delaying the practice;
(b) Examination of young children’s genitals is extremely intrusive. It has been suggested that this in itself may be a violation of the child’s Article 8 right to private and family life under the European Convention on Human Rights
18
;
(c) The practice risks creating distrust of medical practitioners in affected communities.
The Dutch Parliament considered whether such practices could lead to unwillingness to use medical services in times of need due to fear of prosecution, which could be even more detrimental to the already vulnerable females in affected groups.
19 https://dspace.library.uvic.ca:8443/bitstream/handle/1828/2983/Thesis-
27August%202010%20DSpace.pdf?sequence=1.
11
Code Pénal: From the Breaches of Professional Secrecy, Articles 226−14.
12
Code Pénal: Non-assistance to a person in danger, Articles 223-6.
13
Bottini E, “Is juridicization of female genital mutilation an effective way of eliminating it? Western
Democracies facing the violation of female integrity and dignity: illegal FGM as an integration problem” (2009) accessed at: http://www.juragentium.org/forum/mg/sunna/en/bottini.htm
.
14 http://www.ameli-sante.fr/grossesse/surveillance-medicale-pour-votre-enfant.html
.
15
Comission Nationale Consultative des Droits de l’Homme, “Etude et propositions sur la pratique des mutilations sexuelles feminines en France” (2004) 54 accessed at: http://www.cncdh.fr/sites/default/files/cncdh-
_etude_msf.pdf
.
16 http://www.ameli-sante.fr/grossesse/surveillance-medicale-pour-votre-enfant.html
.
17
Costelloe n10.
18
Poldermans S., “Combating Female Genital Mutilation in Europe A Comparative Analysis of Legislative and
Preventative Tools in the Netherlands, France, the United Kingdom, and Austria,” p30: http://www.stopfgm.net/wp-content/uploads/vor2013/grundlagen/SPoldermansFGMinEurope.pdf
.
19
Ibid.

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4.8 While we acknowledge the obvious temptation to introduce to the UK more rigorous medical examinations of young girls along the lines of the French approach, we urge caution before pursuing any aggressive practice of involuntary medical inspections of young girls. In particular due consideration must be given to each of the concerns raised in paragraph 4.7 and any such practice should always be conducted with the dignity of the victim as a primary concern.
5. Education and Empowerment
5.1 Education of affected communities must be a priority of any policy aimed toward the eradication of FGM. Effective education clearly has the direct effect of reducing cases of
FGM, however it should also be acknowledged that an educated community is more likely to self-report incidences of FGM.
5.2 The ‘United Nations Interagency Statement on Eliminating Female Genital Mutilation’
20 gives a comprehensive outline of what can be done within a community to transform the misinformed cultural beliefs and structures that reinforce FGM. It argues that eliminating
FGM has to be a collective, coordinated choice. In African countries this has been achieved through public pledges, open and reflective dialogue, including intercultural dialogue among communal and religious leaders, locally and through the media. Education on the issue is a vital part of this, the provision of acceptable information on human rights, religion, and the health and reproductive implications of FGM are the foundations of this approach.
5.3 In the UK it has been acknowledged that the affected communities are often unaware of the law criminalizing FGM or the motivations behind the law. It has been argued that this is the result of the lack of translated information available to affected communities and Government reliance on small, underfunded NGOs for education.
21
5.4 By comparison, in France, an aspect of the work of Protection Maternelle Infantile is FGM education for women.
22
Doctors and nurses in the PMI discuss with new mothers the laws of
France “in order to make the affected persons understand the reasons of this law, the reasons of our refusal of mutilations, to use all the means for prevention, all the means to explain the stakes of health, the stakes for the future of the little girls.” 23
It is reported that through education young African parents in France come to accept the laws of France and refer positively to the French system.
24
20
‘United Nations Interagency Statement on Eliminating Female Genital Mutilation’ p13-17 http://www.un.org/womenwatch/daw/csw/csw52/statements_missions/Interagency_Statement_on_Eliminating_
FGM.pdf
.
21
Leye E., Deblonde J., García-Añón J., ‘An Analysis of the Implementation of Laws with Regard to Female
Genital Mutilation in Europe’ Crime Law Social Change (2007) 47:1–31, 23 accessed at: http://icrh.org/sites/default/files/Crime,%20Law%20and%20Social%20Change%20january%202007%20revisio n.doc.pdf
.
22
Guine A., Javier F.,“Engendering Redistribution, Recognition and Representation: The Case of FGM in the
UK and France.” Politics and Society, Sept 2007, 35(3), 477-519, 501.
23
Groupe pour l’Abolition des Mutilations Génitales Féminines (GAMS), “Journée Technique d’Information sur les Mutilations Génitales Féminines (Actes)” (Paris: GAMS, February 15, 1996).
24
E. Leye, M. de Bruyn, and S. Meuwese, Proceedings of the Expert Meeting onFemale Genital Mutilation ,
Ghent, Belgium, November 5-7, 1998.

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5.5 Senegal is one of the leading examples of a country that has made major progress in reducing
FGM through an educational approach. According to a report by EuropeAid, a branch of the
European Commission, “Senegal is close to becoming the first country in the world to declare total abandonment of FGM...Nearly four of the five thousand practicing communities have announced that they will abandon the practice”.
25
Studies have shown that 25% of girls and women aged 15-19 had been victims of FGM, a significant reduction from the 31 % of women aged 45-49.
26
5.6 Following the UN’s recommendations, local Senegalese NGOs like Tostan, have actively helped local communities abandon FGM. Tostan, an NGO based in Dakar, runs a Community
Empowerment Program, providing a three-year non-formal programme to villages, focusing on education on human rights matters, including FGM. The programme is designed to facilitate dialogue within and between communities and provides training sessions to encourage social change at grass-roots level. As part of this educational programme, risks associated with FGM are explained and discussed with communities.
27
In addition, the NGO
ENDA-GRAF raises public awareness of FGM through theatre productions in the Kolda,
Thies, Rufisque and Dakar regions and through seminars, discussion groups and radio programs on the topic.
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5.7 We recommend greater allocation of resources to prevention and empowerment domestically.
The examples of France and Senegal offer concrete models for implementation of educational policies and offer statistical support for the conclusion that investment in education leads to reduction in instances of FGM in a way that is perceived positively by affected communities.
It is also likely that a more informed community will be more inclined to self-report cases, in turn contributing to prosecution success.
6. Conclusion
6.1 In light of the above we remain concerned that adoption of the French approaches to identification of victims of FGM will not strike the appropriate balance between the pursuit of prosecution and the needs of victims. We stress that the dignity and particular needs of all victims should always be a primary concern. To this end, a policy focused equally in education and prosecution has been shown to be effective at reducing incidence of FGM in
France and in Senegal and is likely in itself to contribute to resolving the dilemma of identification of victims.
Sadiyah Ahmed: Lead Author
29
UCL Graduate Law Society
12 February 2014
25 http://ec.europa.eu/europeaid/news/12-03-07_fgm_en.htm
.
26
Ibid.
27 http://www.soschildrensvillages.org.uk/news/archive/2013/03/abandoning-fgm-and-child-marriage-insenegal-and-africa .
28 http://www.asylumlaw.org/docs/senegal/usdos01_fgm_Senegal.pdf
at.2
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With the assistance and research of Adriana Lozjanin, Conor Opdebeeck Wilson, Alexandra Hearne, Oliver
Cheung and Andrew White.