Lawyers need to be well armed about FGM, particularly when referred to a case where a child is considered at risk of FGM.
The law is clear in Australia, there are “strong and clear prohibitions of FGM in both law and medical policy”
There are laws prohibiting FGM in each state Click Here
FGM can arise in more than just criminal law. As a child protection issue it can be relevant to family law and immigration / asylum. Lawyers need to be knowledgeable about FGM and the law, and also culturally aware enough to realise that FGM can arise in families and communities that are otherwise loving.
( Felicity Gerry QC )
What precedents have been set for FGM prosecutions in Australia?
There have been several prosecutions or attempts at prosecutions in Australia in recent years.
In 2012, a Perth couple were taken to court to face allegations that they had taken their 1 year old daughter to Bali for FGM. Child Abuse Squad detectives investigated the 44-year-old father and 42-year-old mother and charged them under Section 306(4) of the Criminal Code.
However there it was found that there was little medical evidence that the procedure had taken place, and the charges were dropped by the prosecutors.
In addition, in the absence of medical evidence, the parents were investigated for intention to commit FGM. This charge was also dropped as there was insufficient evidence to allow for any chance of a successful prosecution.
This highlights the problem facing child protection units who are using the criminal code to prove intention to commit FGM. It may be a better use of the law to use current child protection orders to prevent FGM from occurring rather than trying to gather sufficient evidence for a successful prosecution after the event.
We would ask was that little girl in WA followed up with child protection measures which ensured that she was safe in the future, despite lack of evidence of a crime occurring. The allegations were made following a tip from a concerned member of the public who was privy to insider information, and these need to be held in high regard as substantial evidence of risk to a child. It was noted at the time that the problem is almost certainly underreported.
Although the WA case was not successfully brought to trial in the absence of medical evidence, however this does not mean that the mutilation did not occur, just that there was not enough evidence to prove the act, or the intention. The child, an infant, was too young to speak about her experience. When a case involves older children this result may be different.
A case in NSW found that there was also little in the way of medical evidence due to the type of cutting which had occurred, but because the girls were older they were able to discuss their experiences of pain and trauma. The statements of the little girls, 6 and 7, were enough to bring the case to trial. This is to be heard in August 2015 in Parramatta Criminal court.
“Chief Justice Tom Bathurst has allowed the case to be heard in the Supreme Court as it is the first time in NSW – and possibly Australia – that a person or people have been prosecuted for such an offence.
On Tuesday, senior Crown prosecutor Mark Tedeschi, QC, said the case would tackle a number of “significant legal issues” including the scope of female genital mutilation covered under the Crimes Act. The maximum penalty is 21 years’ jail.
The woman is charged with mutilating the clitoris of a young girl between October 18, 2010 and October 20, 2011 at Wollongong.
She is also charged with mutilating the clitoris of that victim’s younger sister between January 1, 2012 and August 29, 2012 at Baulkham Hills.
She is also charged in the alternative with two counts of assault occasioning actual bodily harm in company….
Mr Tedeschi said the case would rely on medical evidence, evidence from the girls as well as telephone intercepts.
While the Crown is no longer pursuing charges against the girls’ father, Mr Tedeschi alleged he was recorded having conversations about the practice.
“He [the father] has been taped having some phone discussion in which he acknowledges female genital mutilation has occurred.”
During the intercepted conversations, it is alleged the word “khatna” was used.
“I would anticipate some dispute between what that term means and what that term involves,” Mr Tedeschi said.
The third prosecution known in Australia also occurred in NSW, however it is alleged the father took his daughter to Indonesia for the procedure. It was discovered 6 months later by a family doctor who reported the crime to authorities. The mother denied knowledge of the incident.
The case prompted the NSW government to increase the penalties for FGM from 7 to 21 years imprisonment, and admitted that there is great difficulty detecting mutilation because of the secretive and conspiratorial nature of the crime
“Minister for Communities Victor Dominello admitted the state’s difficulty in knowing the extent of the problem because of the silence involving victims and perpetrators.
NSW Health Minister Jillian Skinner added that cases go undetected for years and are only discovered when the victim reaches adulthood and undergoes gynaecological examination when she becomes pregnant.”
This again highlights the biggest problem in Australia which is that there is no systemic safeguarding of girls, and no national data collected about the prevalence of FGM.
Child protection orders:
In the event that a child protection order is required due to suspected intention of committing FGM on a girl:
- The lawyers need to be aware of the danger of FGM for a child who comes from a family who practices FGM.
- The risk can be present even in the absence of substantial evidence that there is intention to perform FGM on a child.
Lawyers need to be aware:
- Who is likely to commit FGM?
- When it happens?
- Where it can happen?
- Denial is normal.
What sort of questions do you need to ask?
- Who in the family has had FGM (or use the term which is most familiar to the family eg circumcision)
- Has an older sibling had FGM?
- When did the FGM happen to the sibling?
- Who performed the FGM on the sibling?