The first FGM case will open this week when Dr Dharmasena and Mr Mohamed appear before Westminster Magistrates court, which will herald the first time the Female Genital Mutilation Act 2003 is tested in action. There is nothing like active defence in criminal litigation to expose flaws in a criminal statute. But, without even waiting for results, critics and campaigners want to broaden the scope of criminality caught by the Act.
This is a short Act, and starts with a good definition of the mutilation covered. It makes it a crime to carry out such mutilation. That covers mutilation taking place in this country, no matter who does it.
There is an exemption for medical staff involved in childbirth or with a “surgical operation on a girl which is necessary for her physical or mental health”. But the exemption is limited: in deciding whether an operation is necessary you ignore whether the person operated on, or anyone else “believes that the operation is required as a matter of custom or ritual”. Cosmetic surgery can be therefore lawful. Is it a double standard to allow cosmetic surgery but forbid mutilation? Surely not, for there is a real benefit from some cosmetic surgery (whether on the face or elsewhere). There is no benefit for mutilation.
The Act aims to protect “United Kingdom nationals or permanent United Kingdom residents”. It makes it a crime to mutilate them abroad, it makes it a crime to help or arrange a mutilation of them abroad. Should the protection be still wider – for temporary residents, or persons whose applications are pending? It will remain a crime to carry out the mutilations in this country. It is for Parliament to decide whether to use up scarce police and prosecution resources on what foreigners do to foreigners overseas.
Should it be made a crime for teachers or doctors to fail to report mutilations? Both are required to report child abuse and doctors have to report gunshot wounds and some knife wounds. But those are professional obligations and failure to report is not automatically criminal? Why not just add a professional obligation to report rather than make criminals of decent people who have their own standards.
The major prosecution difficulty will remain getting children to give evidence against family members knowing that prison sentences may well result. Now that there are finally some prosecutions under way, is it not better to grapple with that problem and see what the existing law can achieve, rather than tinker and try to expand it [and delay putting the law into practice].
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