Family law council female genital mutilation



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2.52 Council’s conclusions. 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.
2.53 Male circumcision. Some suggest that clitoral circumcision is analogous to circumcision of the male, because it involves removal of the clitoral hood.25 However, any possibility of comparison ends there. It has been said that in general the term “female circumcision” is misleading because circumcision implies the simple removal of a piece of skin, whereas the procedure on women almost always involves the removal of healthy organs.26 Clitoridectomy and infibulation have no male comparisons. Clitoridectomy might be equated to the removal of most or all of the penis, but this is not a valid comparison because whereas the clitoris has a sexual, and not a reproductive, function, the penis has both functions. In male circumcision, the foreskin is removed in a relatively minor surgical procedure. In rare cases there are medical reasons for this, but usually it is a religious or social custom performed immediately after birth.
2.54 In Australia, male circumcision is not unlawful27. It has religious significance to persons of particular religious persuasions, such as those of the Jewish faith. It is also understood to be performed as an initiation rite on males entering adulthood in some Aboriginal communities.
2.55 A number of people who have written to Council have raised the issue of male circumcision. One writer said that in the case of both male circumcision and female genital mutilation “the child has no say and is quite at the whims of parent guardian or doctor”, a situation which he considered “repugnant and unacceptable for Australia” in 1994.
2.56 Council’s conclusions on male circumcision. 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.
3. THE EFFECTS OF FEMALE GENITAL MUTILATION

It is self-evident that any form of surgical interference in the highly sensitive genital organs constitutes a serious threat to the child, and that the painful operation is a source of major physical as well as psychological trauma. The extent and nature of the immediate and long-term mental disturbances will depend on the child’s inner defences, the prevailing psychosocial environment, and a host of other factors.
Statement by Dr A H Taba, former Regional Director of WHO Eastern Mediterranean Region, at the 1979 World Health Organisation’s Seminar on Traditional Practices Affecting the Health of Women and Children.

3.01 In order to appreciate the physical, psychological, sexual and other effects of female genital mutilation on the girl concerned it is necessary to be aware of the circumstances under which the operation is performed and the way in which it is done.


3.02 The instruments used. In the African villages, the instruments traditionally used for female genital mutilation include kitchen knives, razor blades, glass and sharp stones. Instruments are not usually sterilised and wounds are dabbed with a range of treatments including alcohol, lemon juice, ash, herb mixtures or cow dung.28 When performed in health clinics or public hospitals, scalpels would normally be used.
3.03 Use of an anaesthetic. In the usual situation where these procedures are performed, an effective anaesthetic would rarely, if ever, be available. An anaesthetic is more likely to be used where the operation is performed in a hospital or health clinic, however. Usually, the girl is held down by several women (often including the child’s mother). In the SBS Program “Act of Love”29 an African woman said:
A Somali girl doesn’t feel any pain when she is circumcised. It’s an honour for her. She has become a woman. Circumcision doesn’t have any adverse consequences. It’s a joyful experience for a woman.
3.04 However, the testimony of another woman reported by Toubia30 was:
The memory of their screams calling for mercy, gasping for breath, pleading that those parts of their bodies that it pleases God to give them be spared. I remember the fearful look in their eyes when I led them to the toilet...”Why mum, why did you let them do this to me?” Those words continue to haunt me.
3.05 After infibulation the girl’s legs are bound together until her wounds have healed. In West Africa the raw edges of the labia majora are not sewn together after the operation. Instead, the girl’s legs are tied together in a crossed position, and the same result is said to be achieved. After infibulation the girl is immobilised until the wound of the vulva has closed. This is often a period of several weeks.
3.06 The effects of female genital mutilation - overview. There are many immediate and long-term health consequences of female genital mutilation, both physical and psychological31. There are also emotional and sexual implications. Complications from the procedure can result in infertility. Problems can stay with the woman into adulthood and lead to obstetrical difficulties which endanger the life of both the woman and her children. It is also understood to be common for infibulated women to under-eat during pregnancy so that they will have smaller children.
3.07 Doctors in Sudan have estimated that the number of fatalities due to infibulation is about one-third of all girls in areas where antibiotics are not available. Death due to female genital mutilation is one of many factors contributing to the high infant mortality rates in these countries. For example, Somalia, which has one of the highest percentages of circumcised women in the world, has the world’s fourth highest infant mortality rate.32
3.08 The health problems associated with female genital mutilation are more significant with clitoridectomy and infibulation because those procedures involve more radical surgery.
3.09 Physical effects. The immediate effects of female genital mutilation procedures, especially infibulation, can include haemorrhage, shock, acute infection (owing to the instruments used and treatments placed on the wounds), septicemia, tetanus, damage to nearby organs and death. Sometimes after infibulation the girl’s excrement is trapped by bandages and this exacerbates other problems. It has been suggested that over 100 million women are “missing” in Africa and Asia because of a lack of health care, medicines and nutrition.33 A significant proportion of these could well be attributed to the practice of female genital mutilation.
3.10 With the less severe procedures of ritualised circumcision, sunna and excision, the adverse effects tend to be less severe. There can still be considerable pain, bleeding and infections. Also, if the girl struggles the result can be a more severe form of mutilation than was originally intended. For example, clitoral circumcision can become a clitoridectomy.
3.11 Many young girls bleed to death because clumsy operators have cut into the pudendal artery or the dorsal artery of the clitoris. Other girls die of post-operative shock because of ignorance about how to revive the girls or the distance to the local hospital or clinic.
3.12 Studies carried out in the Sudan indicated that almost all infibulated women questioned reported significant problems in urinating. The average period of time it takes an infibulated woman to urinate is 10-15 minutes. They have to force the urine out drop by drop. Severe infections can lead to incontinence. Sometimes the hole left after infibulation is too small and prevents the flow of menstrual blood which collects in the abdomen. There have been instances where girls have been killed to preserve their family’s honour when the swelling of their bellies and the absence of menstruation have been wrongly interpreted as pregnancy.34 In a study in the Sudan in 1983 it was found that nearly all infibulated women reported agonising periods, in which the menstrual flow was all but totally blocked. This resulted in the build up of clotted tissue requiring surgical intervention.35
3.13 Difficulties in childbirth for infibulated women occur quite frequently and can be serious due to scarring and to hardened tissue blocking the passage at birth. Delayed births are common and there can be brain damage and death of the baby because of lack of oxygen. Sometimes the lives of both the mother and child can be threatened because the opening is too small.36
3.14 In Australia when infibulated women are admitted to hospital they are sometimes made to feel as though they are odd because they have been infibulated. It has also been suggested to Council that unnecessary operations are sometimes carried out because of incorrect assumptions, such as the assumption that all infibulated women need to have caesarian births.
3.15 Psychological effects. There do not appear to have been any longitudinal studies of the full psychological consequences of female genital mutilation to date, but suicides have been reported among young women in Burkina Faso.37
3.16 Slack38 suggests that “it would seem logical that such extreme pain in an extremely delicate, complex and vital physical area, when experienced by young girls in their formative years could result in substantial psychological problems. Whether these problems would cause permanent emotional damage is not clear.”
3.17 Where they are old enough to know what female genital mutilation involves, the girls often experience anxiety prior to, and in anticipation of the procedure. The event itself is also frightening as the girls are held down by force and often no anaesthetic is used. Pain is said to last for weeks and may recur throughout life; for example, the pain of menstruation, intercourse during the first months of marriage and at childbirth.39
3.18 It would appear that the psychological effects of female genital mutilation can become more acute when the young woman is in a western culture. In Britain, for example, social workers have found that women who have been infibulated become more conscious of their condition. They may even question their womanhood and feel abnormal after making friends with non-mutilated women of their own age.40
3.19 Emotional effects. Prior to having the procedure done, the conflict of feelings in the child are said to be considerable. “On the one hand, there is the desire to please parents, grandparents and relatives by doing something that is highly valued and approved of...there is the desire to be “normal”...This feeling is juxtaposed to the girl’s expectation of pain, the stories of suffering and the sheer terror of hearing the screaming of other children being circumcised. Finally, there is the experience itself: being held down by force while part of the body is cut off.”41
3.20 Council has been advised of a number of fears experienced by women, including Australian women, married to men who believe their wives must be “circumcised”. For example:
Within a very short time of arrival, his mother insisted that I go through sunna. Naturally I was frightened and begged not to have to submit to the procedure.
My daughter is now fifteen and a half years old and was not circumcised. It is now most unlikely to happen to her. However, one of my acquaintances was not able to protect her daughter. The child was taken without the mother’s knowledge to a...midwife and held down for the ritual. That child today, at nineteen years of age is totally afraid of men and sex...
I am in touch with a young woman who fears that her three year old daughter is in danger of being excised...The Family...Court has given the father overnight access. The mother complained that this puts her daughter at risk, but she was told that she would have to live with it...
3.21 Sexual implications. The clitoris is the primary female sexual organ. The tip of the clitoris has a dense supply of nerve endings which are extremely sensitive to the touch. The vagina has minimal capacity for sexual response. Consequently, female genital mutilation aims to remove the woman’s sexual organ while leaving her reproductive function intact.42
3.22 Following marriage the husband must penetrate the infibulated vulva. Often penetration is difficult and an opening must be made with a knife. Some women go through a gradual process of penetration which can take two to three months. In some countries the infibulated vulva is opened routinely with a knife before the marriage is consummated. In Somalia the husband uses his fingers, a knife or a razor to enlarge the opening in his wife. In other cultures the husband’s mother or grandmother measures his penis, makes a wooden replica of the same size and cuts the infibulated opening of the bride accordingly. This allows penetration, which in the early stages needs to be frequent, to prevent the opening wound from closing again.43
3.23 It is also apparent that a large number of circumcised women are afraid of sex because of the associated pain and they have little or no sexual enjoyment. On the SBS program “Act of Love”44 a circumcised African woman living in a western culture said:
I’d like to be a complete woman but I’m not. That’s a great problem for me.”
When asked “Why?” she replied:
I’m not a complete woman because ... Sometimes I’m afraid I’m not woman enough for my husband ... that I can’t satisfy him...”
3.24 A study conducted in Egypt in 198545 analysed the responses to sexual stimulation of genitally mutilated women (133 such women took part in the study) with women who had not been mutilated (26 such women). The study involved responses to stimulation of the clitoris or clitoral area, stimulation of the labial area and intercourse.
3.25 This study indicated that about eight times as many non-mutilated women experience sexual excitement from stimulation of the clitoris/clitoral area than did the mutilated women. Manual stimulation of the clitoris/clitoral area resulted in the experience of orgasm in 50% of the non-mutilated women and in 25% of the genitally mutilated women.46
3.26 Council’s conclusion. Council notes the physical, psychological, emotional, sexual and other implications of female genital mutilation and has concluded that it is damaging with persisting effects.

4. WOMEN’S AND CHILDREN’S RIGHTS

Violence against women shall be understood to encompass, but not limited to, the following:...female genital mutilation and other traditional practices harmful to women...States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination. States should pursue by all appropriate means and without delay a policy of eliminating violence against women...
The Declaration on Violence Against Women adopted by the UN General Assembly in December 1993. Australia supports the Declaration.

4.01 International Declarations, Conventions and Protocols A number of international instruments are relevant to the practice of female genital mutilation. Those considered in this chapter are:


• The Universal Declaration of Human Rights;

• The Convention on the Elimination of All Forms of Discrimination Against Women;

• The Declaration on Violence Against Women;

• The 1951 Convention and 1967 Protocol relating to the Status of Refugees; and



• The Convention on the Rights of the Child.
4.02 Universal Declaration of Human Rights. Australia supports the Universal Declaration of Human Rights (1948). The practice of female genital mutilation would appear to breach Articles 3 and 5 of the which are as follows:
Article 3. “Everyone has the right to life, liberty and security of person”
Article 5. “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
4.03 Convention on the Elimination of All Forms of Discrimination Against Women. Australia is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (1979) which contains a number of Articles of relevance. Female genital mutilation is not a procedure which is medically necessary and in many countries it is performed in conditions which place the health of the girl concerned at grave risks. In the circumstances the following Articles of the Convention are relevant:
Article 10 State parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women:
...
(h) Access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning.
Article 12(1) State parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those relating to family planning.
Article 12(2) Notwithstanding the provisions of paragraph 1 of this Article, State Parties shall ensure to women appropriate services in connexion with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.
Article 16(1) State Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its dissolution;
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the rights of the children shall be paramount;
...
4.04 Declaration on Violence Against Women. The United Nations General Assembly adopted the Declaration on Violence Against Women in December 1993. Australia was significantly involved in the drafting of the Declaration and formally supports the declaration. It contains a number of provisions of relevance, including the following:
1. For the purposes of this Declaration, the term “violence against women” means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.
2. Violence against women shall be understood to encompass, but not limited to, the following:
(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation (emphasis added);
(b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;
(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.
4. States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination. States should pursue by all appropriate means and without delay a policy of eliminating violence against women and, to this end, should:
...
(c) Exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons;
...
(j) Adopt all appropriate measures, especially in the field of education, to modify the social and cultural patterns of conduct of men and women and to eliminate prejudices, customary practices and all other practices based on the idea of the inferiority or superiority of either of the sexes and on stereotyped roles for men and women;
...

4.05 Convention relating to the Status of Refugees. The 1951 UN Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees enjoins signatory nations to provide protection to any person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of the person’s nationality and is unable or, owing to fear, is unwilling to avail himself of the protection of that country”.47 Australia is a party to the Convention and the Protocol.


4.06 There appear to have been no claims in Australia for refugee status on the grounds of fear of female genital mutilation although Council is aware of newspaper reports48 of a Nigerian woman in the USA whose deportation order was cancelled by the Court because she feared that her two daughters would suffer genital mutilation if she was required to return to her native country. Such a claim in Australia could conceivably meet the Convention definition of a refugee, either by:
• construing the woman’s opposition to a discriminatory cultural practice perpetrated against women as persecution because of political opinion; or
• treating women at risk of female genital mutilation as a gender-defined social group.49
4.07 Convention on the Rights of the Child. Australia is a party to the Convention on the Rights of the Child (1989). Of particular relevance is Article 24(3) of the Convention which states:
3. State parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.
4.08 As indicated in Chapter 3, female genital mutilation can have serious physical, psychological and other effects and death of the child can, and does, occur as a result of the practice. Female genital mutilation is clearly a “traditional practice” and there is little doubt that Article 24(3) of the Convention of the Rights of the Child aims to eliminate such practices as female genital mutilation and requires Australia to take action accordingly.
4.09 World Health Organisation Resolution. In May 1993 the World Health Organisation (WHO) passed a resolution, drafted by Guinea, Kenya, Nigeria, Togo and Zambia, which urged all Member States to:
1. Continue to monitor the effectiveness of their efforts to achieve the goals and targets of the Strategy for Health for All, the World Summit for Children and the International Conference on Nutrition, with particular reference to eliminating harmful traditional practices affecting the health of women and children;
2. Determine systematically and seek operational solutions to the managerial, social and behavioural obstacles preventing satisfaction of the health and development needs of women and children.
4.10 The resolution requested the Director-General of WHO to assess progress on the implementation of the strategy and to report to the ninety-third session of the WHO Executive Board.
4.11 International Council of Nurses. In 1981 the International Council of Nurses released a policy statement on female genital mutilation. The Australian Nursing Federation supports the policy. The policy statement says that the International Council of Nurses:
Endorses the WHO/UNICEF position on the practice known as female excision, female circumcision and female mutilation; and
Works actively with appropriate colleagues and community groups for the abolition of this custom; and
Includes this subject in all maternal and child health programmes and health education programmes of ICN as appropriate.
4.12 The UNICEF position paper on female circumcision referred to in the policy statement concluded:
The abolition of widespread and deeply entrenched custom of such long standing - fraught as it is with complex cultural sensitivities - cannot, of course, be accomplished overnight. What should be emphasised is that the task is being undertaken carefully, but actively on several fronts and that UNICEF is seriously committed to the effort to overcome the practice of female excision.
4.13 World Medical Association. At the 45th World Medical Assembly in Budapest, Hungary, in October 1993, the World Medical Association (WMA) passed a motion condemning the practice of female genital mutilation and condemned the participation of physicians in the execution of such practices. The WMA made the following recommendations in relation to the practice:
1. Taking into account the psychological rights and ‘cultural identity’ of the people involved, physicians should inform women, men and children on [female genital mutilation] and prevent them from performing or promoting [female genital mutilation]. Physicians should integrate health promotion and counselling against [female genital mutilation] in their work.
2. As a consequence, physicians should have enough information and support for doing so. Educational programs concerning [female genital mutilation] should be expanded and/or developed.
3. Medical Associations should stimulate public and professional awareness of the damaging effects of [female genital mutilation].
4. Medical Associations should stimulate governmental action in preventing the practice of [female genital mutilation].
5. Medical Associations should cooperate in organising an appropriate preventive and legal strategy when a child is at risk to undergo [female genital mutilation].
4.14 The Australian Medical Association’s policy on female genital mutilation condemns the practice, except for recognised medical procedures. The AMA also supports the World Medical Association’s statement on “Condemnation of Female Genital Mutilation”, which was adopted by the 45th World Medical Assembly in Hungary in October 1993.
4.15 The AMA’s policy on female genital mutilation contains the following item:
6. The AMA regards any medical practitioner who engages in, encourages or condones the practice of any form of female genital mutilation as guilty of professional misconduct and recommends to the State and Territory Medical Boards that they regard the practice of female genital mutilation in that light.
4.16 International Council of Women. The National Council of Women of Australia drew Council’s attention to the following resolution which was passed by the International Council of Women in Bangkok in 1991:
The ICW recommends to its affiliated National Councils that in respect of practices such as the operation of sunna, infibulation and female circumcision that they are:
1. to reinforce or set up national committees in all countries where these practices prevail;
2. to collect data and classify information with a view to updating statistics;
3. to develop specialised training programs for social workers, health professionals, traditional midwives, herbalists, practitioners of traditional medicine;
4. to increase awareness among educators and the mass media;
5. to organise public information campaigns and extensive community education programs through traditional and modern methods of communication;
6. it is urged that the government of the countries concerned by the problem to vote or implement specific laws prohibiting the practice of sexual mutilations.
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