Family law council female genital mutilation



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FAMILY LAW COUNCIL

FEMALE GENITAL MUTILATION
A Report to the Attorney-General

prepared by the Family Law Council

June 1994
 Commonwealth of Australia 1994
ISBN 0 642 20812 3

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission.


THE FAMILY LAW COUNCIL
The Family Law Council is a statutory authority which was established by section 115 of the Family Law Act 1975. The functions of Council are set out in sub-section 115(3) of the Family Law Act which states:
It is the function of the Council to advise and make recommendations to the Attorney-General, either of its own motion or upon request made to it by the Attorney-General, concerning -
(a) the working of this Act and other legislation relating to family law;
(b) the working of legal aid in relation to family law; and
(c) any other matters relating to family law.
CONTENTS
Page
Conclusions and Recommendations v
Background 1
Female Genital Mutilation 5
The Effects of Female Genital Mutilation 19
Women’s and Children’s Rights 24
Traditional Practices 30
Strategies 36

Appendices
A. Persons and Organisations Making Submissions 62
B. British and Canadian Legislation 64
C. Australian and Other Laws of Relevance 66
Selected Bibliography 71
CONCLUSIONS AND RECOMMENDATIONS


Recognition of cultural and community pressures (para 2.30)
Council has concluded that for at least one generation, women from countries which practise female genital mutilation will be under considerable pressures to continue this practice. This is especially relevant when considering strategies for eradication of the practice and requires that particular attention be given to the issue of community education.

Incidence of female genital mutilation in Australia (para 2.52)
It is not possible to get reliable statistics on the practice of female genital mutilation in Australia. As the population who have come from countries which practise female genital mutilation is small it is likely that the incidence of the practice in this country at this stage is also small. Although evidence of the practice in this country is largely anecdotal, it is not unreasonable to conclude from that evidence that female genital mutilation is now being practised in Australia. Even a low incidence of the practice cannot be disregarded. Council further suggests that as the volume of migrants from the relevant countries increases cumulatively it might be expected that the incidence of the practice in Australia will increase.

Male circumcision (para 2.56)
Council is aware that there are a significant number of persons in the community who consider that male circumcision should be banned. However, the issue is outside the terms of reference of the present study.

The effects of female genital mutilation (para 3.26)
Council notes the physical, psychological, emotional, sexual and other implications of female genital mutilation and has concluded that it is damaging with persisting effects.

Women’s and Children’s Rights (para 4.17)
Council notes the international treaties, declarations and statements which are supported by Australia. These instruments and declarations require Australia to work for the eradication of female genital mutilation. Council also notes that the Declaration on Violence Against Women urges nations to pursue without delay a policy of eliminating all such forms of violence against women. Australia supported the declaration.

The practice of female genital mutilation in Australia (para 5.23)
Council considers that there is wide opposition to the practice of female genital mutilation among Australians and has concluded that female genital mutilation is a practice which should not be accepted in Australia.

The importance of education (para 6.09)
Council has concluded that the strategy for the elimination of female genital mutilation must be based on education of families from countries which traditionally practise female genital mutilation, as well as professionals and others within the general community.

Recommendation 1 (para 6.15) Education
Council agrees that education must be a first priority in any program for the elimination of female genital mutilation. To this end it recommends that:
(a) A national communication and education program on female genital mutilation be developed by the Commonwealth Department of Human Services and Health, in consultation with the States and Territories and the relevant communities, and that the campaign be integrated with Australia’s health advancement and child value and protection agendas;
(b) The education program’s primary focus be on members of communities coming from countries where female genital mutilation is practised and that wherever possible these education programs should be conducted by members of the communities themselves with the assistance of others, such as health workers;
(c) It is essential that vulnerable communities be involved in planning, as well as delivering education programs, and that adequate funds be provided for education.
(d) Other target groups for education include child protection workers, care providers (including doctors, midwives, nurses, educators, child and ethnic care workers, social workers and community workers), police and the Courts and legal profession.
(e) The Commonwealth Department of Immigration and Ethnic Affairs cooperate in the development and delivery of an effective information program for newly arrived migrants from countries which practise female genital mutilation ; and
(f) The Commonwealth Government provide adequate funds for community education.

Will education eliminate female genital mutilation? (para 6.22)
Council has concluded that legislation is necessary because education alone will not result in the elimination of female genital mutilation, at least in an acceptable time frame.

The need for legislation (para 6.41)
Council considers that because of: (a) doubts about the adequacy of the existing laws, (b) the desirability of having a clear legislative statement on the issue, (c) existing doubt within the general community about the status of the practice in this country, and (d) the need to give the protection and support of the law to women and children who wish to resist the practice within their communities, there should be special legislation which makes it clear that female genital mutilation is an offence in Australia. One member dissented from Council’s conclusion on the basis that she considers introduction of special legislation as not the most effective way of discouraging the practice and takes no account of the historical and cultural context of the practice and the likelihood of its being sent underground. Women in the affected communities are themselves taking action to eradicate the practice. This member sees legislation as a form of cultural imperialism which does not allow the affected communities to take responsibility for the elimination of female genital mutilation.

International offences (para 6.64)
There are doubts about the capacity of the present law to cope with international offences against the rights of the child. In the circumstances, and having in mind the serious consequences for the children concerned in relation to matters such as female genital mutilation, Council has concluded that legislation should be passed to put these issues beyond doubt and to provide as much protection as possible for the children and women concerned.

Recommendation 2 (para 6.65) Commonwealth/State legislation
Council recommends that:
(a) In order to achieve uniform legislation without delay, the Commonwealth Parliament immediately pass legislation making it clear that the practice of female genital mutilation is a criminal offence and also that it constitutes child abuse under Australian child protection legislation;
(b) The Commonwealth pass legislation which provides children taken out of Australia with the same protections from female genital mutilation as they would have in Australia;
(c) The Standing Committee of Attorneys-General consider whether State/Territory legislation may also be necessary. Ultimately the matter is one for the States/Territories;
(d) Legislation cover those matters identified in Recommendation 4 below.

Recommendation 3 (para 6.73) Timing of education and legislation
Council recommends that:
(a) Immediate steps be taken to implement an education program along the lines proposed in recommendation 1; and
(b) Criminalising aspects of the legislation should not become operative until the education program is satisfactorily established and operating.

Recommendation 4 (para 6.80) Content of legislation
Council recommends that to be fully effective legislation should cover the following matters:
(a) It should put the issue beyond doubt that female genital mutilation, in all of its forms, is a criminal offence;
(b) It should be made clear that female genital mutilation, in all of its forms, constitutes child abuse under Australian child protection legislation;
(c) The law should take into account the best interests, and protection, of the child in relation to imposing penalties on parents who allow this procedure to be carried out on their children. Other relevant factors should include whether the parent has offended previously, whether the parent acted in knowledge of the law and the type of procedure performed on the child;
(d) There should be severe penalties, including imprisonment, for professionals who perform female genital mutilation;
(e) There should be severe penalties, including imprisonment, for non-professionals (including relatives) who perform the procedure and for those who aid and abet such persons, including those who arrange for children to be genitally mutilated;
(f) Appropriate sanctions should apply to institutions at which female genital mutilation is carried out. Officers of the institution should be liable for criminal prosecution;
(g) Mandatory notification should apply to State/Territory child protection authorities of prospective or actual incidences of female genital mutilation. Ideally, subject to Constitutional power, the widest possible list of persons required to notify should apply;
(h) Legislation should make it an offence to take, or to propose to take, a child outside Australia to be genitally mutilated. The legislation should be based on the Canadian model; and
(i) The legislation should acknowledge the importance of education programs and of counselling and other forms of assistance.

Recommendation 5 (para 6.83) Child Protection Protocols
Council recommends that the Joint Health and Community Services Ministerial Council be asked to develop protocols specifically for the purpose of dealing with instances of female genital mutilation.

Recommendation 6 (para 6.88) Reconstructive surgery
Council is of the view that further legislation is not necessary to enable young women to have reconstructive surgery where they so desire.

Recommendation 7 (para 6.91) Counselling and support services
Council considers that provision must be made for counselling and support services for women and children, including those who reject the practice of female genital mutilation.

Recommendation 8 (para 6.94) Jurisdiction
In Council’s view there is no need for special legislation on the jurisdiction of the courts in relation to female genital mutilation. However, Council is of the view that proceedings relating to female genital mutilation should be conducted in a closed Court.

Recommendation 9 (para 6.96) International action
Council urges the Government to participate in international forums and by other means to take part in the international campaign against female genital mutilation.
1. BACKGROUND

1.01 Terms of reference. In September 1993 the Attorney-General asked the Family Law Council to examine the following:


The adequacy of existing Australian laws to deal with the issue of female genital mutilation, in particular:
• the adequacy and appropriateness of existing laws - not just criminal laws but also in child welfare and medical/health areas;
• consideration of Canada’s 1993 Bill C-126, an Act to amend the Criminal Code and the Young Offenders Act, to protect children being removed from Canada with the intention of assault;
• whether, in light of the above, more Australian legislation is needed (i.e. Commonwealth, State or Territory) and what should its contents be; and
• which Court(s) should exercise jurisdiction.
1.02 Council decided that these matters should be examined by its Child and Family Services Committee and asked the committee to give priority to the matter.
1.03 Child and Family Services Committee. The members of the Child and Family Services Committee are:
Ms Jenny Bedlington Convenor

Dr Nigel Collings

Ms Margaret Harrison

Mr Bill Hughes Director of Research, Family Law Council

Mr Peter Trahair Legal Officer, Family Law Council
1.04 Family Law Council. The functions of the Family Law Council are set out in sub-section 115(3) of the Family Law Act 1975. That provision is et out on page iii of this report.
1.05 Members of the Family Law Council at the time of production of this report were:
Mr John Faulks Chairman

Ms Jenny Bedlington

Dr Nigel Collings

Mr Andrew Crockett

Associate Professor Regina Graycar

Ms Louise Hansen

Mr Richard Morgan

Ms Patricia Moroney

Ms Matina Mottee AM

The Hon Justice Sally Thomas



The Hon Justice W B Treyvaud
1.06 Public consultation. Following its study of this matter the Family Law Council released a discussion paper (31 January 1994) and requested submissions from the public by 31 March 1994. The discussion paper received wide media publicity and considerable public attention was aroused by the media. Unfortunately, some media reports have sensationalised the issue and there has been a tendency to stereotype all people of particular nationalities or, in some cases, of particular religions as practising female genital mutilation. This has caused considerable confusion, fear and anger within the relevant communities and has seriously compromised the development and implementation of current and planned education strategies.
1.07 One group making a submission in response to Council’s discussion paper has reported instances of public ridicule because the practice of female genital mutilation has been presented as a Muslim practice. The Independent Islamic Sisterhood says in its submission:
As has probably been witnessed by all Australians, the media has been very quick to judge Islam and Muslims as the source of what can only be described as a barbaric custom. We, the Muslim women of Australia, have suffered a serious backlash, being sometimes treated with scorn or ridicule by ignorant members of the general public. This could, in some instances, be the catalyst for violence by those who seize upon negativity [which is] engendered by the less responsible members of the Australian media...
1.08 The people mainly concerned in relation to this practice are generally refugees who are, in many respects, the most vulnerable people in the community. In its submission, the International Women’s Development Agency said that they are mostly recent arrivals in Australia who have often come from war or conflict zones. Some have suffered trauma. Their immediate concerns are with survival, coping in a new country, getting income and learning a new language.
1.09 During the course of the consultation process, Council was advised of difficulties experienced by members of the relevant communities, especially communities from countries where female genital mutilation is practised. These difficulties were summed up by the Eritrean Community in Australia (ECA) in the following statement:
The lack of adequate and informed consultation with the community has been of considerable concern to the ECA and its membership. It is the ECA’s position that a cooperative approach with the community is more likely to attain the objective of eradicating female genital mutilation.
Such an approach would certainly require more than the 2 months that was allocated for submissions for the current discussion paper. In fact, this time frame essentially prevented adequate community consultation from taking place.
1.10 The issue of female genital mutilation has been in the public arena in Australia for some time and did not commence with Council’s discussion paper. As indicated elsewhere in this report, two State Government inquiries were conducted, the first being in Victoria, where the ECA is based, in 1987. The ECA’s community education program is itself a response to concerns about the issue.
1.11 Nevertheless, Council is aware that there are substantial cultural, gender and language barriers within the affected communities in relation to female genital mutilation. Because of these factors the communities concerned are only now beginning to address the issue. Some groups within the communities have, until very recently, been unaware of the extent and nature of the practice within their own communities because the issue has not been one for open discussion.
1.12 Council appreciates that the tight time frame under which it has had to operate may have made it difficult for community leaders to consult with their communities when preparing their submissions to Council. Nevertheless, a number of submissions have been received from the communities and Council considers that it is well aware of the views of those communities. Cooperation with the vulnerable communities and more detailed consultation is a matter which will occur at the next stage of the process; that is, in developing community education programs.
1.13 Council appreciates the immediate relevance of this issue to the relevant communities. However, it stresses that the issue is one for the whole Australian community. Council is in no doubt that the Australian community’s view as a whole on the issue of female genital mutilation is clear.
1.14 A complaint was also made to Council that its discussion paper was available only in English and that this prevented many members of the vulnerable communities (especially recently arrived refugees) from making their views known. Council does not have the funds to produce its discussion papers and reports in multi languages. Council considers, however, that in this instance funds should be provided to enable Council’s final report to be produced in several languages. This would enable the report to be used more effectively in the education process within the relevant communities.
1.15 Council is gratified by the number of submissions received and the range of persons and organisations from whom submissions were received. A list of persons and organisations making submissions is provided at Appendix A.
1.16 In addition to submissions, Council received a number of letters from members of the public on the issue, as did the Attorney-General and other Ministers. These letters generally expressed strong opposition to the practice of female genital mutilation in Australia. Council is also aware that bodies, such as trade unions, have also expressed their opposition to female genital mutilation. The matter has also been raised in the Commonwealth Parliament and in some of the State Parliaments where there would appear to be general opposition to the practice.
1.17 Outline of this report. This report addresses the issue of female genital mutilation under the following headings:
Background to the Family Law Council examination of the issue.
Female Genital Mutilation - an explanation of the practice.
The Effects of Female Genital Mutilation.
• Relevant International Instruments on Women’s and Children’s Rights.
Traditional Practices and Western Society.
Strategies for the Future.

2. FEMALE GENITAL MUTILATION

She pontificated at length about “the tradition” and how she was chosen by the village to perform circumcisions - gold, she said, was “poured” over her. Two bulls were killed. All the women before her had been circumcised. All those after her would be, also.
Excerpts from journal entries by Alice Walker, who witnessed a “circumcision” ceremony - as published in “A Legacy of Betrayal” in Cosmopolitan, February 1994, page 105.

2.01 Female genital mutilation. Female genital mutilation “is the collective name given to several different traditional practices that involve the cutting of female genitals.”1 It can involve any one of 4 procedures, although Armstrong2 suggests that “in reality the distinction between the types of circumcision is irrelevant since it depends on the sharpness of the instrument used, the struggling of the child and the skill and eyesight of the operator”. Figure 1 illustrates the external female sex organs and the 4 procedures are explained below by reference to the effects of each of those procedures on the external genitalia of the young woman.


2.02 “Circumcision” of young women is a traditional cultural practice which is mainly performed in, but not confined to, a number of African countries. The global incidence of the practice is discussed later in this chapter. Those who oppose the practice call it “genital mutilation”. In this paper when the term “female genital mutilation” is used it is meant to embrace all types of the practice where tissue damage results; for example, damage manifested by bruising, contusion or incision. However, where a specific procedure is being discussed, that particular procedure will be specified. Much of the information available on female genital mutilation, and referred to in this paper, relates to the practice as it is performed in African villages. It is therefore necessary to keep in mind that where the practice occurs in western countries it may not be under the same conditions using the same instruments, although the basic processes and their effects are similar.
2.03 Ritualised circumcision. The first, and least severe form, is called ritualised circumcision. In this case the procedure may be wholly ritualised (e.g. where there is cleaning and/or application of substances around the clitoris). In other forms of ritualised circumcision the clitoris is scraped or nicked. This causes bleeding and may result in little mutilation or long term damage.
2.04 Clitoral circumcision. The second form is generally simply called circumcision. It has also been called “sunna”. The word “sunna” in Arabic means “tradition”, but it also means “tradition of Prophet Muhammad” which indeed is a serious misnomer because the practice is not associated with Islam. Use of the term “sunna” can lead to the incorrect linking of clitoral circumcision with the Islamic religion and, therefore, Council uses the term “clitoral circumcision” in this report. Clitoral circumcision involves the removal of the clitoral prepuce - the outer layer of skin over the clitoris, which is sometimes called the “hood”. The glans and body of the clitoris are meant to remain intact. However, depending on factors such as the eyesight of the person performing the procedure, the type of implements used and the struggling of the child involved, it often can result in removal of the glans of the clitoris.
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