FGM in the UK: Legal Reforms

Abstract

Over the last four years, the FGM agenda has been given much attention than previously. A key contribution to this change has been the work of Julie Bindel, who crafted a reported tilted “FGM – the unpunished crime”, (Bindel, 2014) which influenced the Home Office Select Committee to undertake an investigation into the UK’s approach in addressing FGM. The investigation led to creating a revised legislation in the hope that this would improve the UK response in addressing this abhorrent crime more effectively. The UK has the largest number of victims at around 170,000, living with the effects of FGM and 65,000 girls under the age of 13 at risk of undergoing FGM (Bindel, 2014). It is one the first countries to criminalise FGM since 1985, but to date no one has been convicted of an FGM related offence in the UK (Bindel, 2014). France holds the second position in terms of prevalence rates of FGM victims within Europe (Harris, 2015). Despite not having a FGM specific legislation, it has the highest number of FGM prosecutions in Europe (Bindel, 2014). Sweden, was the first country in the world to establish FGM specific law in 1982, and has witnessed prosecutions (Johnsdotter, 2009). The study will explore whether changes in the revised legal framework via the Serious Crime Act 2015 and policy reforms offer victims the necessary protection from FGM within England and Wales. The study will undertake out a sociological comparative review of two EU countries, France, and Sweden with the aim to recommend learning from our European counterparts to influence social policy and law reform in addressing FGM. The study will adopt a qualitative approach with an action research as a chosen method. Data will be gathered using semi structured interviews and focus groups. The study will sit within a feminist frame as this is deemed most suited to the aims of the study. FGM experts from legal, policy and grassroots organisations will be recruited as participants. It is aimed that the study will establish a theoretical framework from a black feminist standpoint, which will develop recommendations that can contribute in ensuring, policy and legislation are effective in addressing FGM.

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Introduction

Aims

The research involves examining the laws and policies in England and Wales in addressing FGM, with a cross comparison to two European countries. The study has established the following aims;

i) The effectiveness of law in prosecuting offenders and deterring others;

ii) To assess whether the underlying policy is effective.

iii) To identify barriers in tackling FGM in the UK.

iv) To undertake a sociological comparative review of two EU countries, France and Sweden.

v) To contribute in the prevention of FGM via influencing social policy, and law reform.

Female genital mutilation (FGM) is defined by the World Health Organisation (WHO) to include procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons (FGM is also known as "female circumcision" and female "cutting")(WHO, 2018).

FGM is usually carried out on girls between infancy and the age of 15(WHO, 2018).

There four known types of FGM procedures defined by WHO.

Type 1 known (Clitoridectomy) Type 2 known as (excision) Type 3 known as (infibulation) the most severe form of mutilation. Type 4 is categorised as any other deliberate harm to the genitals.

FGM is a form of gender-based violence (GBV). In the UK, it is recognised as a form of honour based violence (HBV) Home Office, 2012). Globally the United Nation (UN) consider it be a harmful practice and a violation of the human rights affecting over 200 million of girls and women (WHO 2018) The harmful practice of FGM dates back over 2000 years (WHO) 2018). FGM is widely understood to be an African practice and much of the available research is mainly from this region (Unicef 2013, 28 too many 2018) However FGM is a global problem affecting over 45 countries across many continents (Dobson, 2018). The secrecy surrounded of the practice supports the continuity of it and present a challenge of knowing the real impact it has on women’s and girl’s life. The EU has around 500,000 women and girls who are living with the effects of FGM. The UK has the largest number of victims in the EU, an estimated 170,000 and 65,000 girls under the age of 13 are at risk of undergoing FGM (Bindel, 2014, Harris, 2015). The UK has had specific laws for FGM since 1985, despite this no one has been prosecuted for a FGM related offences (Home Office, 2015). France has had the highest level of prosecution for FGM in the world, despite not having specific FGM legislation Wilsher,2014). It holds the second position in terms of prevalence rates of FGM victims within Europe, the UK having the highest (Harris, 2015). FGM was defined as a crime in 1983 with the threat of 10 years in prison or up to 20 years for cutting a girl under the age of 15 (Wilsher, 2014).France criminalises via their Penal Code (EIGE, 2013:4). In 2013, the law was further strengthened to provide additional protection to minors (EIGE, 2013:4). France is the only European country in which trials in connection with FGM are held on a regular and systematic basis. In 1985, 25% of all female African babies examined in French hospitals were genitally mutilated, whereas in 1992, this rate had dropped to 4% (Rosenke, 2000:106–107).Linda Weil-Curiel, a Paris-based lawyer and lead investigator in all the trials, advised that the success of France in addressing FGM has been the investment in the prevention warnings by the police, followed by the trials that have contributed to the decline of the practice (HOC, 201:50). In 2013, France was the only country in the EU which had a dedicated chapter within their National Action Plan for Violence against women, with ring fenced resources, attached to each priority (EIGE, 2013).Within the EU states, France has granted the largest number of asylum cases due to FGM (Schirrmesiter, 2013).Furthermore, the 2015 reform of France’s asylum law makes a special provision for FGM citing it as a serious form of psychological, physical or sexual violence. (UEFGM, 2016) The French approach employs a, combination of preventive work with a strong legal and child protection framework. Critics have said that the French universal approach to issues affecting minority groups is seen as discriminatory but they argue that they put childs(Balliot et. al 2018). Sweden was the first country to develop a specific FGM legislation in 1982 and have adopted the WHO definition which makes all form of harm, or permanent change to the gentile illegal. Since then two people have been convicted of a FGM offence (Johnsdotter, 2009).Under The Act Prohibiting Female Genital Mutilation (1982:316) s.1 makes it illegal to carrying out: “operations on the external female genital organs which are designed to mutilate them or produce other permanent changes must not take place, regardless of whether consent to this operation has or has not been given (Johnsdotter, 2009:2). The offence is punishable for up to 4 years imprisonment. If the FGM has resulted in serious harm, the punishment can vary from a two to ten years in prison.(Johnsdotter, 2009:2). In 1999, the law was strengthened and placed a duty on all citizens to report performed and planned FGM cases to the police, failure to so is a crime and punishable in accordance with section 23 of the Penal Code.(Johnsdotter, 2009:3)

With adoption the WHO definition the Swedish Act on FGM technically outlaws genital changes also in non-African women, and all gynaecologists or plastic surgeons performing such alterations to the genitalia for non-medical reasons could be prosecuted (Johnsdotter, S. (2004a). The reason for choosing, France, and Sweden as comparative counterparts in the study, is due to their high volume of victims, their approach, both in terms of legislative and policy level, and their ability to secure prosecutions. During the journey of the study, an analysis of their approaches will be explored in much detail. The next section will provide an overview of the UK law, and previous work that has taken place in this area.

Literature Review

Despite the UK being the first country to establish specific FGM legislation it has to date been unable to prosecute for a FGM related offence. A report to the common home affairs select committee called it a ‘national scandal’. MPs reported that it was `beyond belief’ that no one was convicted after 30 years since the practice was established as a crime (HOC, 201). The report is known as the Vaz report (Home affairs select committee parliamentary enquiry on FGM) and this led to an investigation involving many stakeholders including experts from France and other European countries from a wide range of sectors, with the aim to establish a much more effective approach in addressing FGM. The findings from the report resulted in a revised legislation, the serious crimes Act 2015. Although the legislation has closed some loopholes, critics such as Charlotte Proudman, an FGM expert and a barrister and a member of the Bar Human Rights Committee's working group on FGM and barrister Nkumbe Ekaney informs that the revised legislation is still problematic and continues to fail to protect victims and with the further legislative changes are inevitable (Ekaney&Proudman, 2015).Critics have raised concern that the UK’s approach in addressing FGMs developing punitive legislation without engaging and empowering those concerned to create change (Dustin, 2010). Addressing FGM requires much more than intensifying legislation. One of the key recommendations from the Vaz report was to establish a national action FGM plan that could support the implementation of the legislation and policy (HOC, 201). This was not in acted upon. The FGM work plan is incorporated with the violence against women and girls strategy. The recommendation in relation to a national action plan are supported by a study recently undertaken by a leading UK, FGMNGO 28 too many on FGM legislative reforms in African countries. The study informed as other scholars that merely passing a law against FGM is not sufficient but a commitment to develop and implement national strategies to achieve implementation and enforcement of legislation. They advocate nations adopting a tripartite approach: consultation and engagement by all relevant government authorities (including the police and judiciary) with civil society and the media to ensure that the message that FGM is both harmful and illegal reaches all practising communities. Other conclusion drawn for the study advocated that the primary purpose of a national law should not be to prosecute; ultimately, it is a tool for the prevention of FGM.(28 too many, 2018). The UK has established FGM specific legislations since 1985. The section below provides an overview of the legal journey. The Prohibition of Female Circumcision Act 1985 was the first legislation on FGM Under S.1 (2) (a) it was a criminal offence to “excise, infibulate or otherwise mutilate the whole or any part of a girl's labia majora, labia minora or clitoris of another person”. It was an offence under s.1 (2) (b) “to aid, abet” the counsel or procure the performance by another person of any of those acts on that person’s own body’. Under this section, the act aimed to prosecute parents who organised the mutilation but did not perform it. This provision also allowed prosecuting those who perform the procedure on themselves. Both offences carried a maximum prison sentence of 5 years. The law also does not criminalise all forms of FGM as per WHO definition such as piercing, scraping, pricking, and cauterizing, so technically certain forms of FGM go unpunished. Under s.2.(1) the law provided exceptions for surgical procedures which care considered“necessary” for the girls “physical and mental” health and for surgical operations during labour and child birth, that are carried out by registered medical professionals.

Section 2 (2) made a distinction that when procedures are considered for “mental health” reasons, it is immaterial if the (patient) or others believe that the operation is required for the cultural reasons. Under this legislation, no arrests were made; however, two doctors were expelled by the General Medical Council (GMC) for misconduct, one in 1993 for performing FGM and the other, in 2000, for agreeing to conduct FGM on children (British Medical Ethics, July, 2011:6). These cases illustrate perpetrators of FGM not being held to account by law enforcement agencies. Concerns with The Prohibition of Female Circumcision Act 1985 were debated in the House of Lords in 2000. The debate suggested that the justification of FGM on `physical and mental health’ grounds created a loophole in law, which made the procedure accessible and legal (Hansard, March 23rd, 2000). The FGM Act 2003 replaced the 1985 Act in England, Wales and Northern Ireland. It modernised the offence of FGM and the offence of assisting a girl to carry out FGM on herself while also creating extra-territorial offences to deter people from taking girls abroad for mutilation. To reflect the seriousness of the harm caused, the 2003 Act increased the maximum penalty for any of the FGM offences from five to 14 years’ imprisonment. However, the act only provided protection to British Citizens or those who lived in the UK permanently. Under this legislation the UK witnessed the first case put forward for a criminal prosecution the case was of Dr Dharmasena who was accused of carrying out re-infibulation on a woman, at her husband’s request after giving birth. The patient’s husband was also a defendant in the case. The case was heavily criticised and labelled as a “show trial” that was brought to the courts due to political pressure (HC 201). Both defendants were acquitted the defence argued that the procedure was in relation to birth and labour which the law permits under s.1(2)(b)(Laville, 2015). The impact of this case resulted in the Royal College of Obstetricians and Gynecologists RCOG issuing revised guidelines on caring for patients affected by FGM (RCOG, July 2015). The Serious Crimes Act 2015 five key legislative changes were made to the 2003 act. Under s.70 (1) of the (“the 2015 Act”) it amends s. 4 and s.3 of the 2003 Act, the extra-territorial jurisdiction extends to those who are habitual residents in the UK. Section 71 provides lifelong anonymity to victims, who need protection after reporting FGM. This was put in place to increase reporting and protect those who speak out. Under s.72 a new offence was created for failing to protect a girl from FGM who is under the age of 16. The offence is in s.3A of the FGM Act 2003 and is punishable for up to 7 years this was intended to hold parents and those with parental responsibility to account. (Gaffney-Rhys, 2017).Ekaney & Proudman, (2015) argue that there are two key wider defence arguments which could be made hence making prosecution under this offence challenging (Ekaney & Proudman, 2015). Under s.73 a provision for FGM protections orders (FGMPO) was made under the s.5A of 2003 act. The FGMPO aim to safeguard girls at risk of FGM and those who are already victims at home in the UK or when they are abroad. Since July 2015 to October 2018, over 200 orders have been granted by the courts (FGM Unit, 2018). It is unclear if any of these have been breached. Under sec. 74, it became a mandatory duty for regulated professionals to report cases of FGM cases of minors to the police, which came into effect on the 31st October, 2015. Agencies such as the health sector have invested some resources in training and developing their workforce to support the identification of cases but gaps still remain in other sectors.(NHS England, 2018, HOC, 309:26,29). Many professionals subjected to the duty, still remain unaware of their duty which is “personal duty(HOC, 309:48)

A key gap remains, that training on FGM has not been supported on a mandatory footing within the regulated professions, which carries several risks, such as, cases not being identified and reported.(HOC, 309:26,29). Mandatory training was one of the 12 recommendations submitted by the Bar Human Rights Committee (BHRC) to the parliamentary investigation on FGM for immediate implementation. The same report informed the Home Affairs Committee that the UK has been in breach of its international law obligations to protect young women and girls from mutilation, which has resulted in thousands of British girls being mutilated.(Bar Human Rights Committee, 2014). Furthermore, the implications to professionals not complying with the duty have not been made clear (HOC, 309:43,45). A recent study found that mandatory reporting procedures brought in for regulated professionals has been more “symbolic than effective” and called for a revision of the law underpinning the duty to make it more robust in addressing FGM. (Malik, Rowland, Gerry, Phillips, 2018). A key issue with this duty is that it only applies to minors, as it is evidenced FGM is a product of patriarchy (Hosken, 1979, Jonsdotter, 2009, Monagan 2010). The level of control and coercion does not end due to reaching adulthood. The law is assuming that adult women are not at risk of FGM. With this, it not only fails to protect the adult women but also other younger female siblings or close female family members. Furthermore a problem foreseen with mandatory recording within the NHS which records all cases of minor and adult minor on FGM has some areas have underreported on their monthly return and there is no national framework in place to challenge this (Barnardo’s, 2018). Again this example illustrates the impact of the lack of knowledge on FGM among professional and regulation is deterring cases from being identified. Similar conclusion was made from a study conducted in Sweden which involved an investigation into five European countries. The study found that there are two main barriers in implementation of legislation; the identification of cases and finding sufficient evidence. From the study most cases were detected within the health sector but only cases in France reached the courts. It found that the main problem is associated to the lack of knowledge of FGM and understanding of the legal process and limited medical expertise to detect FGM (Leye&Deblonde 2004). Another major issue with the current legislation is that it does not address female genital cosmetic surgery. Over the last ten years, there has been a five-fold increase in female genital cosmetic surgeries (Hogenboom,2012). FORWARD UK, a leading FGM specialist agency reported procedures are often very similar to Type 1 and Type 2 FGM, and can result in comparable health complications such as reduced sensation, infection and bleeding, and wound dehiscence (HOC, 201:18-19, Avalos, 2015). The current law does not accept consent as a defence and is applicable to the whole population; despite this the UK to date has not brought any cases to court under cosmetic surgery. Avalos (2015) asks if all the procedures under cosmetic surgery were medically necessary or not. This again presents another example where poor or the lack of will to implement legislation is failing victims. Many scholars advocate that incorporating the WHO definition of FGM, in the UK law, would negate confusion, negate the double standards and provide wider protection for victims (Deblonde, García-Añón, Johnsdotter, Kwateng-Kluvitse, Weil-Curiel, Temmerman, Kluwer, 2007).

Feminism

A key contribution to this agenda on a global level has been of the feminist movement. The feminists’ theories have not only helped to shape international opinion on gender violence but they have also provided the impetus required by the international community to respond to the problem of violence against women. Within the domain of FGM the two main schools of thought within this are; western and post-colonial/ black feminism (Hall,2015). One of the early western feminists was Fran Hosken who is considered a radical feminist and frames her work on global sisterhood. Hosken identified the term ‘Female Genital Mutilation’ and advocated the abolishment of the term `circumcision’ (Hosken, 1979). In 1979 a report titled `Genital and Sexual Mutilation of Females’ which later became known as the “The “Hosken report”, was presented to the first World Health Organisation (WHO) seminar on Harmful Traditional Practices Affecting the Health of Women and Children (Hosken, 1979). In her report, FGM is defined as an intolerable patriarchal practice which suppresses and controls women by removing their ability to enjoy sexual pleasure. Another western feminist Alice Walker an African American, who made a film, entitled “Warrior Marks”, a documentary on FGM. Both Walker and Hosken have played key roles in bringing the anti-FGM discourse to a global platform. However both have also been criticised by many African feminists such as Njambi, Nnaemeka and Toubia as portraying African women as weak, broken and mutilated and oppressed by the patriarchal societies which need rescuing by western liberated feminists. (Wade 2011). Despite the criticism, Hosken and Walker’s universal approach to sisterhood has brought influenced the international community, including WHO to declare an effort to end the practice. Post-Colonial /black feminism was developed as a critique to western feminism and later developed to address the gaps within western feminism (Weedon,2000). The main, foundation of this branch of feminism was acknowledging that women of colour, are subjected to multiple levels of oppression, due to their race, religious identify, social class, and sexuality. However, western feminism largely focussed on gender oppression (McEwan, 2001:98).A view shared by Kimberley Crenshaw who found the term “Intersectionality”(Crenshaw, 1991). Furthermore, Siddqui (2013) and Leye et al. (2007) have described how factors like religious fundamentalism, multi-faithisim, the fear of racism and discrimination, as well as relativism and cultural sensitivity, have led to cases of FGM going unreported and these have contributed to the denial to minority women the protection from gender violence in the name of cultural or religious sensitivity as well as the continuing conflict between racist immigration laws and gender equality (ICRH,.2009, Gill & Anitha, 2009). This position is also shared by political liberal philosopher Okin(1999) who informs that rights granted under multiculturalism might be bad for women when they protect oppressive practices such as polygamy, forced marriage or female circumcision. Okin asks “is multiculturalism bad for women?”. UK academics and feminists, consider that honour based violence (HBV) crimes are not given the priority required as they are viewed as crimes happing to “othered” women) and its perpetrators (“othered” men from ‘”othered” cultures and that HBV is attributed primarily to religious and cultural traditions rather than gender.(Gill & Anitha (2009:261) In support of this Bindel (2014) informs there is excessive cultural sensitivity and a reluctance to combat the practice of FGM for fear of appearing reactionary or prejudiced(Bindel, 2014). This can be supported by the delay in the working together statutory guidance only recognised FGM as from of child abuse since 2013, despite it being unlawful since the 80s.

Method/Methodology

I contended with a number of approaches, as I wanted to employ an approach that recognised my position as a campaigner and practitioner working within the FGM sector but also one deemed most appropriate for the aim of the study. The overall aim of the study is to improve the response to those affected by FGM. Previous studies in this area have historically developed an outsider perspective looking in, generating knowledge on FGM from a western lens, often, positioning those who practice FGM negatively, and often generalising all practicing FGM communities on the same footing. Being associated to an FGM community, I consider holding an insider’s lens (Merton, 1972) looking from within but also from an outsider’s position as Naples (1996) describes that positioning is not static and could be dynamic and consistently shifting. I established that a black feminist frame with a feminist action research approach, using qualitative methods to collect data would enable me to conduct this line enquiry. As it is understood FGM largely affects minority women and girls who are also vulnerable to various other levels of inequality. For this reason, I propose to adopt a black feminist standpoint position,(Collins, 2000) that will allow me to incorporate Intersectionality issues which will provide a solid foundation to develop this study. Employing a Black psychological standpoint theory based approach will ensure that those affected by the issue, are equally represented and have key voice and are at the forefront of the study. The research method deemed most suited is Female action research (FAR), which stems from action research. Action research primary purpose is to involve key community stakeholders in developing knowledge and taking action to solve problems.AR rejects the notions of neutrality and accepts the researcher is the one who has most at stake in resolving a problematic situation (Bagele, 2012). However as this research focuses on women and girls, I sought to employ a method that puts gender at the forefront, hence the decision has been made to adopt a FAR as a method for conducting this study. Feminist action research is a framework that enables a critical understanding of women’s multiple perspectives that works toward inclusion, participation, action, and social change while confronting the underlying assumptions the researcher brings into the research process (Reid, 2004). Over the years, feminist action research has been used as a means to address social power and create community-based research projects that seek to transform social inequalities (Lykes&Hershberg, 2012). A key aim of this study is to improve that it plays a role in improving the UK’s response in addressing FGM. The chosen data gathering approaches in the study include; Interviews and focus groups which will be discussed next. The research will employ semi structured interviews as this process offers flexibility, and also allows for in-depth probing which is to understand the phenomena of FGM. (Corbin & Straus, 2008, Bryman, 2004). Interviews will be conducted in person or via Skype facilities. In addition, focus groups will be another method that will be employed to collect data. Smithson (2000:116) informs they are “an effective method of gathering data quickly and providing developing some ‘sound-bite’ quotations to illustrate themes”. In addition, focus group interviews establish different perceptions and points of view and are used to gather information for discovery, bench marking, evaluating, verifying perceptions, feelings, opinions and thoughts (Patton, 1990).The focus groups will recruit campaigners, community champions, and grassroots organisations, in all three countries. The criteria will be that they all have are able to communicate in English. It is likely that many of the subjects will be survivors; there will be a need to employ additional sensitivity is required during the sessions.

The study will involve a considerable amount of desk work which will include, examining national, international and interagency polices, legal framework, academic work, news reports, and political reports and briefings.

Data Analysis

The data analysis method for this study is content analysis. The method offers flexibility (Cavanagh, 1997) and is an established method which is widely used in many disciplines. Research using qualitative content analysis focuses on the characteristics of language as communication with attention to the content or contextual meaning of the text (Budd, Thorp, &Donohew, 1967; Lindkvist, 1981; McTavish &Pirro, 1990; Tesch, 1990, cited in Hsieh & Shannon,2005). Within the content analysis there are three distinct approaches: Conventional, Directed and Summative, all three have the same principles to interpret meaning from the content of text data to the naturalistic paradigm. The key differences are within the coding processes (Hsieh & Shannon, 2005).A key reason in choosing this approach is that the process allows you to interpret the underlying meaning of responses within a systematic approach. Further work is required to determine which approach within the framework of content analysis will be applied.

Work Undertaken as of October 2018:

The Researcher has completed and passed the first year of the mandatory doctoral study programme. In addition to this, the Researcher has attended a number of additional workshops and conferences during the last 13 months to support the study. These include:

Honour based violence session at the University of Central Lancashire

MMU Harvard referencing workshop

Writing workshop at MMU

Presented PHD proposal at Oxford University in October 2017

FGM Conference at Salford University as a keynote speaker

Keynote speaker in the National Honour Based Violence Workshops organised by the MMU law faculty.

Attended and presented at a two day FGM workshop in India, over the summer of 2018, which was supported by the global organisation Equality Now.

The researcher is organised an international FGM workshop, focussing on a south Asian perspective, a new area of work which has not been widely explored, despite the UK having communities from this group.

Intended further work

To maintain the progression of the study further, the Researcher needs to recruit further participants for the study, mainly those living in Europe. The format for the data collection process needs to be established such as developing questions for the field work, establishing ground rules and undertaking fieldwork. Some of fieldwork does require European travel, so travel arrangements need to be made. Further research is required to establish the data analysis approach. Also further desk research is needed to support the literature review. Other significant work is writing up of the thesis

Indication of expected significant contribution to knowledge

The study aims to establish a theoretical framework from a black feminist standpoint, which will develop recommendations which can contribute in ensuring that policy and legislation could be effective in addressing FGM. There have been a number of comparable studies to France’s approach in addressing FGM but the Researcher has not accessed any in-depth study since 2015, which was when the serious crime act was established offering a comparative with Sweden policy and legislation. The literature review provided in this document has established that the revised legislation in England and Wales is not working to the tackle FGM and has failed to prosecute the cases related to FGM, also the general approach to FGM lacks co-ordinated response. A number of FGM experts have said that they believe another revision in legislation is possible (Ekaney&Proudman).Also findings from an upcoming study by the European Institute for Gender Equality (EIGE) has established that tougher laws are discouraging FGM from taking place. (EIGE, 2018) It is hoped that the insights gained from the desk research and from experts engaged in this study across the United Kingdom and Europe will contribute towards any revised response which the UK may undertake.

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