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.

17/01/2018

By: Georgie Dalton

---

Sources:

[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.