Prosecution of female genital mutilation in the United Kingdom: Injustice at the intersection of good public health intentions and the criminal law

Abstract

Female genital mutilation (FGM) is a harmful traditional practice and a serious public health issue in the countries where it is carried out. It is also a violation of the rights of the girls to whom it is done. The main action taken in the United Kingdom to stop FGM, has been to criminalise it. Public health measures, such as the provision of specialist clinics for those who experience complications of FGM have been implemented as well, and some education in schools is provided. This article is about the injustice that has arisen from the pursuit of prosecutions for FGM in the United Kingdom, in spite of good public health intentions. Since 2012, there have been four criminal cases, several arrests that never came to trial, and for reasons of safeguarding, an unknown number of investigations with the threat of girls being taken into care, and people stopped from travelling with girl children to visit their families in FGM-practising countries. To date, only one criminal case in 2019 – R v. N (FGM) – which is the main subject of this article, has resulted in a guilty verdict. This article outlines this history in relation to the criminal law and uses courtroom observation to analyse what happened in the 2019 case in detail. It argues that the conviction depended on medical opinion and the highly uncertain evidence of two children and was influenced by a spurious link to witchcraft that should never have been permitted in the courtroom. It argues that this conviction is unsafe and should be appealed. It further argues that to use protection orders only because a child’s mother had FGM, in the absence of any evidence of risk, is discriminatory and a form of impermissible racial/ethnic profiling. The article concludes that the United Kingdom should stop recording a history of FGM in women seeking healthcare. It calls for the current law against FGM to be reconsidered and replaced with positive measures for countering FGM which have the support and involvement of the community groups to whom they are addressed.

Why we should be concerned about UK female genital mutilation laws and associated monitoring and reporting systems: a reply to ‘The prosecution of Dawoodi Bohra women’ by Richard Shweder

“…However, the NHS has not issued a statement clarifying that data previously reported as FGM should no longer be considered such, nor that it holds evidence of FGM being carried out in the UK, apart from the single (questionable) conviction (Berer, 2020). One can wonder why this good news is not being celebrated considering that the predicted FGM epidemic has not materialised either (Hehir, 2017).…”

Punishing Mothers for Men’s Violence: Failure to Protect Legislation and the Criminalisation of Abused Women

“… 30 Issues surrounding CPS charging decisions regarding this offence and other relatively new offences such as FGM suggests the CPS need clear guidelines on charging specific offences, particularly relative new offences which have gendered implications (See Berer 2020 ). Current CPS guidance mentions domestic abuse in a very tokenistic, vague sense in that it is something that prosecutors should be mindful about when assessing if a defendant took reasonable steps to mitigate against harm.…”