Treating FGM as a criminal problem isn’t working – here’s what we should do instead

Female Genital Mutilation (‘FGM’) is defined by the Crown Prosecution Service as ‘a collective term for a range of procedures which involve partial or total removal of the external female genitalia for non-medical reasons.

It has been illegal here since the Prohibition of Female Genital Circumcision Act 1985. It is now governed by the Female Genital Mutilation Act 2003 and the Serious Crime Act 2015. It is illegal to aid, abet, counsel or procure FGM.

We believe a robust, sensitive, understandable legal and regulatory framework is fundamental to eradicating FGM in the UK.

FGM is approached as a criminal problem. It is an irreversible action (not just physically, but psychologically), punishable by up to 14 years in prison. The legislation relies heavily on sanctions which ought to provide deterrence.

However, this approach alone is not working. A policy drive following the introduction of the 2003 Act, only saw one prosecution. A doctor re-stitched a woman’s labia minora following the birthing of her child. She was bleeding so profusely that the doctor thought it in her best interests that her genitals were sewn back up. The State said this was FGM. The doctor’s ’best interest’ defence was successful. The process was accused of being a political trial.

The lack of prosecutions over such a long period is deeply concerning. We suggest this is because FGM is a cultural issue. Those who practise FGM, or enforce practise on others, genuinely believe in their actions. Arguments that FGM cleanses a woman, that it marks the transition from girl to woman, or that it is a precursor to marriage are common. In some communities FGM is viewed positively.

While deterrents are necessary and effective in some communities, they are ineffective where positive perceptions of FGM are entrenched. It would be naïve to expect all communities practising FGM to willingly forgo belief because the law tells them to.

In these communities, strong deterrents risk driving FGM practices underground. The law can only tackle what it can see, and can only punish what it can prove. The deterrent becomes less effective if prosecutions are impossible. That said, the strict approach adopted in France has resulted in greater success rate in prosecuting FGM cases than historically seen here.

The recent move to victim-focused approach has improved things. The 2015 Act introduces anonymity for victims in the press (subject to fair trial and lack of knowledge defences). FGM Protections Orders offer very broad powers to the Courts in protecting girls at risk. They can be made without notice and by anyone who the Court gives permission to hear. There is no court application fee.

It has also introduced an offence of failing to protect a girl at risk from FGM for those with parental responsibility – another statement of intent that Government perceives this as a criminal problem.

Eradication of FGM requires a cultural shift. The bedrock of culture is education. Key to ending FGM is to get people talking about it. Approaches need to be informed, not imposed. We cannot tell someone what they believe is wrong, and expect the problem to simply fall away. We must explore issues with those who wield the physical, emotional, economic, social or religious power to cause FGM to be inflicted on individuals. What do they hope to achieve? What is their rationale?

There is some recognition from Government that this is a community issue. It has encouraged a multi-agency approach but this is still underwritten with a sanction-driven approach. Regulated professions are duty-bound to notify the police if they ‘discover’ a girl under 18 who has been subjected to FGM. It is not clear what the punishment for failure to notify will be. FGM and its signs are diverse. We cannot effectively ‘regulate’ the approach of the social professionals. ‘Discovery’ cannot be allowed to become a tick-box exercise, because tick-box exercises leave loopholes to be exploited.

Professionals need to understand what FGM is and be trained to recognise information and make inferences. If we teach professionals about the culture, medical problems and the law, they are far better placed to recognise the unpredictable indicators of FGM. It is a unique issue, and very reliant on empowering affected individuals to come forward. Professionals cannot do their job without this empowerment.

This is why inFrinGeMent exists. Legal frameworks create a bridge between professionals and the public. inFrinGeMent makes the bridge understandable and far less daunting. 

Female genital mutilation

Ben Chapman and Sanjit Nagi (former Nottingham Law School BPTC Students) on behalf of inFrinGeMent

inFrinGeMent provide education and training in the law surrounding FGM to professionals and members of the community. Its members are a mix of working recent BPTC graduates and Nottingham Law School students. It runs in association with Nottingham Law School Legal Advice Centre.