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If you have been accused of a male or female genital mutilation (FGM) related offence, you need to make sure you understand the law. While male genital mutilation is normally a legal activity, FGM is usually not. That said, prosecutions of FGM offences are relatively rare. In 2016, 9,000 women were identified by the NHS as has having experienced FGM, but there have only been a handful of convictions for FGM related offences. This is partly attributable to the difficulty in enforcing the law where the actual act of FGM occurs outside of the UK. It is also down to the reluctance of many victims and witnesses to testify against their own family members. Regardless of the wishes of the victim, the CPS is required to take a hard line on FGM offences, and is only permitted to make a no further action or ‘NFA’ decision with the permission of the Director of Legal Services. If you have been accused of a FGM offence, you need to know where you stand in relation to the law and any possible legal defences available to you.
According to government guidance, the definition of female genital mutilation used in the law of England and Wales encompasses procedures that include the partial or total removal of the external female genital organs for non-medical reasons. These practices are undertaken in some communities at different times in a girl’s life from when a female child is born, to during childhood, to just before marriage or during a woman’s first pregnancy. Most commonly, FGM takes place on girls between the age of 5 and 8 years old.
In England, Wales and Northern Ireland, the law that prohibits female genital mutilation and makes it a criminal offence is the Female Genital Mutilation Act 2003 (FGMA). This was updated by the Serious Crime Act in 2015. The FGMA defines the offence of FGM as:
The excision, infibulation, or mutilation of the whole or any part of a girl’s labia majora, labia minora or clitoris.
There are exceptions for surgical operations performed that are necessary for the girl’s physical or mental health, or where the girl is in labour or has just given birth, for purposes connected with the labour or birth. In order to be lawful, the person performing the operation must be a registered medical practitioner, midwife, or a person undergoing training to become one of these professionals. When considering whether the procedure is necessary for the girl’s physical or mental health it is immaterial whether the girl or any other person believes that the operation is required as a matter of custom or ritual.
Under the FGMA, it is also an offence to assist a girl in mutilating her own genitalia.
Where it is not possible to bring a prosecution for FGM because the act that has taken place does not meet the definition of mutilation, CPS guidance suggests that other offences against the person can be considered such as grievous bodily harm and actual bodily harm.
Assisting a person conduct FGM overseas
Under the FGMA it is an offence to assist a non-UK person to conduct FGM on a girl who is UK national or resident where the act takes place overseas. Under this provision, it is also an offence for a UK national or resident to perform an act of FGM abroad. However no offence is committed where the relevant act is conducted as surgical operation by a suitably qualified person.
Failure to prevent FGM
It is also an offence for a person with parental responsibility of a girl under the age of 16, who is in frequent contact with them, to fail to protect them from the risk of FGM. The offence can also be carried out in relation to a girl under the age of 18 where the parent still has caring responsibilities for them. It is a defence for the parent/carer to show that:
Anonymity for victims of FGM
In general, it has been notoriously difficult for the CPS to bring successful prosecutions in relation to FGM especially where the FGM has taken place abroad. Offences that take place across multiple jurisdictions are often complex. In the case of FGM, these difficulties have also been due to the reluctance of victims to come forwards.
For this reason the FGMA provides that the identities of victims of FGM are to be kept anonymous during criminal proceedings and there is a restriction on publishing information pertaining to victims’ identities, including on social media. This anonymity lasts for the whole life of the victim. The aim of this was to encourage victims to come forward without fear of their identity being known. However, if you have been accused of an FGM offence and your defence will be prejudiced if the victim remains anonymous, this restriction could be lifted. Another situation where the victim may not be able to remain anonymous is where this is viewed as a substantial and unreasonable restriction on press reporting and it is not in the public interest for the victim to remain anonymous. Unless these exceptions apply, it is a criminal offence to publish information in respect of a victim of FGM.
Mandatory reporting of incidents of FGM
Doctors, nurses, midwives, social workers, teachers, and social care workers are under a legal obligation to report the occurrence of FGM on a child under the age of 18. This includes where they are told by the child that FGM has occurred, or where physical signs are observed that FGM has been carried out and there is ‘no reason to believe that the act was necessary for the girl’s physical or mental health or for purposes connected with labour or birth.’
FGM protection order
A FGM protection order can be granted in the family court to protect a girl or woman against the commission of FGM, or against whom FGM has already been committed. The application can be made by a victim but also by the local authority of the affected girl or woman. An order can also be made during criminal proceedings. When deciding whether to grant a protection order, the court must take into account all the circumstances including the need to protect the health, safety and wellbeing of the victim. FGM protection orders can:
Breach of an FGM protection order is a criminal offence that could result in you being arrested and prosecuted.
In contrast to FGM, the non-medical circumcision of a male child, where the foreskin of the penis is removed, is not a criminal offence where both parents have consented. Male circumcisions are usually carried on infant boys for religious purposes in Jewish and Muslim communities. Whilst there is no law against male circumcision, some human rights organisations have spoken out against the practice.
The maximum custodial sentence for committing female genital mutilation, assisting a girl commit FGM on herself, or assisting in the commission of FGM overseas is 14 years’ imprisonment where the case is heard in the Crown Court. You could also receive a fine. If the case is heard in the Magistrates’ Court, the maximum custodial sentence is 6 months. There are no published sentencing guidelines for these offences.
Meanwhile, the maximum sentence for failing to protect a girl from the risk of FGM is a 7 year custodial sentence in the Crown Court. You could also receive a fine. The Sentencing Council has published a guide aimed at helping the court arrive at the appropriate sentence in these cases. In order to assess the sentence that you should receive, the court will look at your culpability and the harm caused by the offence.
Factors that are relevant to the assessment of culpability include if the child was subject to an FGM protection order at the time of the offence and whether there was a failure to respond to intervention or warnings including those from medical professionals or social services. Involving others through coercion, intimidation or exploitation will also increase culpability. When it comes to harm, the most serious cases will involve serious physical or psychological harm which has a substantial or long-term effect.
If you have been accused of an FGM related offence, contact Stuart Miller Solicitors today. Our experienced team of solicitors understands the nuances of these types of cases and will be well placed to advise and represent you. Contact us and come in for a consultation to discuss your options.