Tuesday, 23 January 2018

Who Has the Right to Regulate Female Genital Cutting in Australia?

Discliamer: The views in this piece reflect the opinion of the author. Feminism is diverse and there are many differing opinions on this subject.

1,060 cases of female genital cutting (‘FGC’) were recorded by the National Health Service in the UK, between July and September last year.[i] The first prosecution using anti-FGC laws in Ireland began last month.[ii] It is time for Australian law makers to reflect on the adequacy of our legislation.

Australia does not collect any official data on rates of female genital cutting. However, No FGM Australia – a not-for-profit aimed at protecting survivors and preventing future FGC – estimated in 2014 that Australia has over 83,000 women and girls who are survivors of FGC, or are at risk.[iii] Despite these numbers, there has been one successful prosecution of FGC in Australia, since the laws were introduced over 20 years ago. Our laws are inadequate, and this is because the law making process has excluded the voices of the women who are directly affected by FGC.

FGC is a worldwide cultural practice, and is divided by the World Health Organisation into four categories of severity. These are: clitoridectomy, excision of all or part of the clitoris and/or labia minora, infibulation (creation of a seal over the vagina by repositioning the labia majora/minora) and a category that includes other harmful practices to female genitalia.[iv] The reality is that FGC exists on a spectrum. The cutting depends on cultural background and on what the practitioner of FGC happens to achieve on the day.[v]

In Australia, FGC is a criminal offence. New South Wales introduced the maximum penalty of 21 years in 2014. Victoria and the Australian Capital Territory have a 15 year maximum penalty, the Northern Territory and Queensland 14 years and South Australia only 7 years.[vi]

The first successful prosecution of FGC in Australia occurred in New South Wales, and involved members of the Dawoodi Bohra community, a world-wide sub-sect of Shia Islam.[vii] A retired midwife from the community performed a nicking or cutting FGC procedure on two young sisters. The midwife and the girls’ mother were convicted of mutilating the girls’ clitorises under section 45 of the Crimes Act and sentenced to home detention. A senior representative of Dawoodi Bohra in Australia, who advised the girls’ parents to tell the police that the midwife had not cut the girls, was sentenced to a maximum of 15 months’ gaol for being an accessory after the fact.[viii] There have not been any other successful prosecutions in Australia, despite the high numbers of girls affected. It is clear that there is a problem with Australia’s approach to regulating FGC.    

There are two major issues that hold back the effectiveness of Australia’s legislation. The first, is that the language regulators use to discuss FGC is oppressive toward survivors. The second, and perhaps more significant, is that focusing on FGC as a criminal act isolates affected communities and ultimately drives the practice underground. Both of these issues – and a multitude of others – could be remedied if regulators were to take into account the educated, and varied, opinions of women from affected communities.

A point that the women raise repeatedly is the need for change in the language used when FGC is discussed. When introducing the bill to increase the penalty of performing FGC to NSW parliament, the Minister described the practice as ‘abhorrent.’[ix] This reaction may seem logical to members of the dominant Australian culture. However, use of this morally loaded language is unhelpful because it isolates affected communities.

Moreover, describing women who have undergone FGC as ‘mutilated’ constitutes their bodies as disfigured and prolongs the idea that they are ‘other’ in Australian society. The use of the word ‘mutilation’ has been criticised by Juliana Nkrumah, founder of African Women Australia, who said that a more appropriate term is ‘circumcision.’ She said ‘this is the only language that our people understand,’[x] suggesting that regulation will be ineffective unless it identifies directly with the affected women. Khadija Gbla has spoken in a TedX talk with over 240,000 YouTube views, about her mother’s preference for the use of the descriptor ‘circumcision.’[xi] Khadija continues to refer to the process as ‘mutilation.’ This deliberate use of language highlights the brutality of the experience she had with the procedure, and in accordance she speaks of the suffering she has undergone from the ‘gift that keeps on giving.’

In the case involving the Dawoodi Bohra community in NSW, a significant issue was how the Court was to interpret the word ‘mutilates’ in the criminal legislation. The prosecution argued that the word ‘mutilates’ means the infliction of any injury.[xii] The accused referred to the dictionary definition of the word ‘mutilates.’ The Court held that, with reference to the WHO definition, the word ‘mutilate’ be understood as part of the phrase ‘female genital mutilation’, which includes ritualised circumcision.[xiii] The result of this is that the Court has rendered these girls ‘mutilated’, despite there being no physical evidence of the procedure on their bodies.

It is questionable whether the specific criminalisation of FGC is effective, or even necessary. When introducing the bill to Parliament in 1994, the Minister acknowledged that FGC is technically already covered by general assault and wounding provisions. Addressing FGC specifically in criminal legislation was a policy tool, and manipulated the public’s lack of understanding of the practice. This was evident when the Minister justified the law by stating that a ‘clear message should be sent to the community’ about the unacceptability of the practice.

The criminalisation of FGC has been criticised by women from practicing communities. Nkrumah indicated her opposition to the increased gaol times of the latest NSW amendment.[xiv] She states that since it is usually the mother or close relative of the child who organises the cutting, the resulting gaol-time ‘defeats the purpose’ of regulation. This occurred in the case involving the Dawoodi Bohra community in NSW, in which the mother of the girls was one of the prosecuted parties. Evidently, the Court was aware that the girls may suffer further if their mother was incarcerated, and thus sentenced her to home detention.  

FGC complicates the ‘victim’ and ‘perpetrator’ dichotomy usually prescribed by criminal legislation. Often the female relatives who instigate FGC have undergone the process themselves. This was true of the mother in the NSW case. The Court accepted the Department of Family and Community Services’ evidence that the mother was otherwise unlikely to do anything that was not in the best interests of her children.[xv]

The criminalisation of FGC is likely to drive the process underground, making it harder to engage with practising communities. In the NSW case, the girls’ mother had already warned her daughters not to tell anyone of the procedure, before the investigation commenced. The senior representative of Dawoodi Bohra in Australia informed community members that the police were performing interviews, and asked them to deny that the community undertook the practice. FGC is an ingrained cultural practice. Nkrumah has suggested that instead of focusing on punitive measures, FGC is best dealt with through community service and education.[xvi] This seems wise, based on the demonstrated ineffectiveness of the criminal provisions.

The women from the communities affected by FGC regulation have a right to be involved in the making of laws which police their bodies. In a 2014 conference, Nkrumah spoke passionately about the need for African women’s voices to be included in the debates about FGC.[xvii] She expressed gratitude that in the conference African women were not being talked about but ‘talked to,’ and were doing the talking.

Regulators ought to take into account the opinions of the women from communities which perform FGC if the laws are to be effective, and fair.

By: Georgie Dalton


[i] <http://www.independent.co.uk/news/uk/home-news/fgm-girls-christmas-holidays-female-genital-mutilation-authorities-number-statistics-schools-somalia-a8117206.html>.
[ii] <http://www.irishexaminer.com/breakingnews/ireland/couple-first-in-ireland-to-be-charged-with-female-genital-mutilation-819837.html>.
[iii] <http://nofgmoz.com/2014/03/25/new-statistics-of-girls-at-risk-of-fgm-in-australia/>.
[iv] <http://www.who.int/mediacentre/factsheets/fs241/en/>.
[v] Ian Patrick, ‘Responding to Female Genital Multination: The Australian Experience in Context’ (2001) 36(1) Australian Journal of Social Issues 15, 17.
[vi] See Crimes Act 1900 (NSW) s 45; Crimes Act 1958 (Vic) s 32–34A; Crimes Act 1900 (ACT) s 73–77; Criminal Code Act (NT) s 186A–186D; Criminal Code 1899 (Qld) s 323A–323B; Criminal Law Consolidation Act 1935 (SA) s 33–33B; Criminal Code Act 1924 (Tas) s 178A–178B; The Criminal Code (WA) s 306.
[vii] R v A2 no. 2 [2015] NSWSC 1221 (27 August 2015).
[viii] <http://www.smh.com.au/nsw/first-person-to-be-imprisoned-over-female-genital-mutilation-in-australia-20160609-gpfm5i.html>.
[ix] New South Wales, Parliamentary Debates, Legislative Council, 5 March 2014, 3 (Greg Smith).  
[x] Australian Human Rights Commission, *Live* RightsTalk: African Women’s Voices – FGM and Women’s Leadership, <https://www.youtube.com/watch?v=t1CUqPC_pYE> .   
[xi] <https://www.youtube.com/watch?v=a4n0zcsdoN0>.
[xii] R v A2 no. 23 [2016] NSWSC 282 (18 March 2016) [110].
[xiii] R v A2 no. 2 [2015] NSWSC 1221 (27 August 2015) [247].
[xiv] Above n x.
[xv] R v A2 no. 23 [2016] NSWSC 282 (18 March 2016) [112].
[xvi] Above n x.   
[xvii] Ibid.    

Sunday, 21 January 2018

2017, time’s up.

To many, 2017 will be remembered as a very bad year. To me, 2017 will be remembered as the year women got together to start a series of revolutions against structural inequality. 2017 was the year of women’s anger.

2017 was the year of the Women’s March on Jan 21st, a worldwide protest led by women. It was in reaction to Trump’s inauguration, but the goal was to protect hard-won rights, to safety, to health, to the right of existence for diverse communities. That goal echoed around the world, including here in Sydney, pinked and pussy-hatted women gathered around the world, together.

2017 was also the year of the #metoo silence breakersPost Weinstein, the long-silenced discussions of sexual harassment began to have a space, and women and men started sharing stories of sexual harassment and assault. There were questions thrown up about the movement, challenging power structures always brings questions, but there are more people within the movement still pushing back. 

#Metoo is an important movement in America, and its important movement here, around the world, spreading like a grassfire. In the Spanish-speaking world, they have #YoTambien. The Italians have #QuellaVoltaChe “that time when”. The French have #BalanceTonPorc – “snitch out/expose your pig” (my personal favourite). Wherever it is, this movement brings the discussion of sexual assault and harassment to the mainstream. And while here in Australia, some men are being named by women, Don Burke and Craig Mclachlan among them, (Tracey Spicer taking names, literally)

 there’s still a long way to go for us in 2018. 

In 2017, as feminism became an everyday word (feminism was Merriam-Webster’s word of the year in 2017 and was the most searched for word), feminists are becoming more aware that feminism doesn’t look the same to everyone. What I mean is, we’re becoming more aware of intersectionality: anecdotally, I hear that word "intersectional" more in discussions, and in action, I saw it in the calling out of the #metoo hashtag, amplified by (and at first credited to) Alyssa Milano. The creator of the movement was Tarana Burke, and she was included in Time’s silence breakers.
This is a good example, but obviously, there’s more work to do in this space.

Julia Baird, with Hayley Gleeson, did a series of stunning exposes into the tangle of domestic abuse and religion. Some of the links here, here and here.

This amazing investigation was bolstered by the explosive #churchtoo created by Hannah Paasch and Emily Joy. As Hannah from America states:

The more women speak out, the harder men find it to block their ears. But men have had a lot of practice at blocking their ears — it is part and parcel of male privilege… Even in churches that don't teach headship and submission, male privilege is present."

Because of the ABC investigation or the #churchtoo movement – or maybe a little of both – we saw a flood of apologies come through from Australia’s religious institutions. The Sydney Anglican church confessed to domestic abuse in its ranks and introduced new policy aimed at weeding out offenders from its ranks.

There was also an apology from the Baptist church and the creation of SAFER a tool to “help churches understand, identify and respond to domestic and family violence”.

And of course, we achieved a measure of equality in regards to marriage. Australia’s postal survey was a dangerous, cowardly farce that shoved many Australians into harm’s way. But despite that, marriage equality was passed. This isn’t just a win for feminists of course, but feminists believe in equality – for all. Magda Szubanski’s tireless efforts to reach out to Australians of all stripes , and Penny Wong’s moving, determined  speeches in Parliament where she, as an openly gay member, is outnumbered, definitely contributed to the win.

Now we start 2018 we have the birth of #timesup.
#Timesup is an American campaign to steal out discrimination in workplaces, backed by a woman-powered legal defence fund. Its already making beautiful, black-clad celebrity waves.

Australians need to follow the momentum of this movement, and not just in the entertainment industry. We need to make it easier for people to report.  

As the Sex Discrimination Commissioner Kate Jenkins has said: “Research has shown that gender inequality and community attitudes about women and their role in society contribute significantly to sexual harassment and other forms of sexual violence against women.

“Gender inequality is the result of the unequal power distribution between men and women, and is reinforced by gender discrimination and structures that perpetuate inequality.”

 (Link: https://www.humanrights.gov.au/news/stories/reason-be-hopeful-about-changes-attitudes-sexual-harassment)

And as Liberty Sanger, chair of the Equal Workplaces Advisory Council Victoria, points out, people only have six month time limit for making harassment or discrimination complaints to the Australian Human Rights Commission. (Link to complaint form: http://www.humanrights.gov.au/complaints/make-complaint/complaint-form)  perhaps, with what we know about all the personal and professional roadblocks to reporting harassment, six months is not a long enough period.

There are things we can improve on in 2018. And there are
movements already rolling in January (including the anniversary of the Woman’s March that took place on 21st January at Hyde Park)

The message of the movements is clear:

“No more silence. No more waiting. No more tolerance for
discrimination, harassment or abuse.
Times up.” (from the Times up website)

By Ted Eytan from Washington, DC, USA [CC BY-SA 2.0 (https://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

Article by Tee Linden

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