Family law council female genital mutilation



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4.17 Council’s conclusions. 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.

5. TRADITIONAL PRACTICES

Since the earliest of times, humankind has evolved a variety of practices for the promotion of health and prevention of disease...Some of these traditional practices are no doubt useful, others are harmless, and yet others positively dangerous.
Report of the UN Working Group on Traditional Practices Affecting the Health of Women and Children

[Female genital mutilation] will not be eradicated unless those who are fighting for change understand the deeply held beliefs of the people who practise it.
Nahid Toubia in Female Genital Mutilation: A Call for Global Action, UN Working Group on Traditional Practices, 1993, page 35.
The Government seeks to promote tolerance and acceptance of social and cultural diversity, and encourage every person in Australia to respect and protect every other person’s rights.
National Agenda for a Multicultural Australia: The Year in Review (1989-90), page 11.

5.01 Australia as a multicultural society. The National Agenda for a Multicultural Australia is a statement of the Federal Government’s policy response to the changing ethnic composition of Australian society. For the purposes of the National Agenda, multiculturalism is defined as a policy for “managing the consequences of cultural diversity in the interests of the individual and society as a whole.” It includes the rights of all Australians, within carefully defined limits, to express and share their individual cultural heritage, including their language and their religion. It also includes the right of all Australians to equality of treatment and opportunity and the removal of barriers of race, ethnicity, culture, religion, language, gender or place of birth.


5.02 As a part of the Government’s National Agenda for a Multicultural Australia, the Australian Law Reform Commission (ALRC) reviewed Australian family law to ensure that it reflects the whole community which it serves. In that review the ALRC indicated that its preferred approach was that special legislation was not necessary to prohibit female genital mutilation. The ALRC said “the numbers affected are likely to be very small...Generally the Commission favours action in cooperation with the community to assess the extent of the problem and to provide education and counselling directed to particular communities. These communities should be aware that the practice is an offence under the general law and that those who take part may be liable to severe penalties.”50
5.03 Countries with migrant populations, such as Australia, are enriched by the cultural diversity of persons who become its residents. Many migrants bring their practices and traditions with them and many of those practices and traditions are valued and maintained by ensuing generations. It cannot be said, therefore, that the traditions of other cultures are not acceptable in Australia.
5.04 Council notes that some members of the vulnerable communities see multiculturalism as implying that if a practice is culturally based that is sufficient reason to justify the continuation of the practice in this country.
5.05 However, some respondents made some strong statements on what multiculturalism meant to them. For example, the Women’s Electoral Lobby (WEL) said:
WEL does not believe, and will never accept, that multiculturalism can be in any way used to justify or excuse assaulting and abusing women and girls.
5.06 The Uniting Church in Australia (NSW Synod) had the following to say:
Multiculturalism only works when people are sure that there are some clear limits to what they will be asked to tolerate.
5.07 A long-standing practice. Female genital mutilation is described as a traditional practice among a number of cultures. In surveys among those who practise it, female genital mutilation is most often attributed to tradition, although other reasons (such as diminishing women’s sexual urges, increased sexual performance for men and the health of babies) are also given. The practice has existed for many years - some studies suggest that it may have been practised for as long as 5,000 years in some cultures.
5.08 A study in the Sudan in 198351 indicated that almost 83% of women interviewed approved of female genital mutilation regardless of type. At the same time almost 88% of men interviewed endorsed the practice. The main reasons for approval were tradition and religion. Rites and traditions were generally accepted without question.
5.09 It is important to note that the tradition is bound up with the moral code of the community and is an important factor in identification with the whole community. In many underdeveloped countries, a woman must be a virgin to marry and her economic survival can generally only be guaranteed through marriage. In the minds of those who practise female genital mutilation, to be different is apparently to be separated from the community. Also, Eritrean women believe that female genital mutilation protects them from rape. There are, therefore, deep and compelling ties to the tradition among the people concerned and those ties will not easily be broken.
5.10 Many people who practise female genital mutilation see western societies as sexually promiscuous, decadent and in the process of disintegration. They cite female genital mutilation as a defence against such corrupting influences. They also see the attack on female genital mutilation as an attempt to disintegrate their social order and thereby speed up their Europeanisation.
5.11 In a segment of the SBS program titled “Act of Love”, a number of Somali women who had migrated to Western Europe, and who still practised or supported the practice of, female genital mutilation expressed the following views:
A girl has to be circumcised. And she has to have good manners and be composed. She mustn’t be seen flirting with men.”
When the girl goes to her husband’s relatives she has to be a good girl who’s already been circumcised. She must be like she was after her circumcision. She must be closed up like she was at her parents.”
[Circumcision] gives girls confidence and a good reputation.”52
5.12 On the other hand, there are those who see the women concerned as “prisoners of ritual”.53 For many, female genital mutilation is seen as a means of sexual control of women. There seems to be a belief that a woman’s sexuality is irresponsible and must be controlled.54 Circumcision and excision discourage promiscuity by reducing a woman’s sensitivity and desire for sexual intercourse. In the case of infibulation, the main reason seems to be to guarantee a bride’s virginity. The tiny opening left after infibulation makes sexual intercourse virtually impossible without reopening the vagina.
5.13 An Egyptian author and doctor, Nawal El Saadawi, who was herself circumcised, has said that:
If you examine the causes of female genital mutilation you will find that it is not related to Islam; it is not related to Africa; it is not related to any colour or religion. It is related to a patriarchal class system of 5,000 years ago when men started to build a patriarchal family, a patriarchal society.55
5.14 Family autonomy. The general right of parents to decide what is best for their children has existed for many years and there is an expectation that the State will not interfere in decisions which are rightly the province of individual families. In effect, the “privacy” of the family has generally been protected by society.
5.15 The right to cultural integrity. Those who defend the right of parents to have their daughters “circumcised” sometimes refer to their traditional values and their right to cultural integrity without interference from persons who hold different cultural values. Council considers, however, that there is a distinction to be drawn between neo-colonialist attempts to impose western human rights standards on Third World countries and cultural practices which are no different from practices in the West through which women are valued less than men.
5.16 In recent years, however, it has been pointed out that the concept of “family privacy” has sometimes masked abusive and hurtful behaviour in the family, such as domestic violence and child abuse.56 As a result there are a number of situations where it has been considered inappropriate to defer entirely to the family. Our domestic violence laws and our laws about child abuse are examples of our society not being prepared to leave matters solely to the internal regulation of the family.
5.17 Just as the concept of the “privacy of the family” has come under scrutiny for concealing and, in effect, endorsing, abuses which take place within families, so also has the idea of “culture” come in for criticism when it is used as a defence of practices that we would otherwise condemn. For example, it has been suggested that:
...the epithet “culture” functions to establish a category in which certain practices are removed from the purview of legitimate western or international scrutiny. The realm of the “cultural” in this way resembles the “private”...To examine culture through the prism of the public/private distinction is to see similarities in the effect of culture in Western and Third World nations. It is to look underneath the terms “cultural practice” or, in the West for example, “domestic violence” and see violence to women simpliciter. Such violence is inexcusable whether in the name of culture, or of privacy; whether in the West or in the Third World.57
5.18 Funder 58 suggests that the link between traditional values and cultural integrity is similar to that made in Western societies “because such values depend upon control over the place and role of women in society.” She further suggests that if female genital mutilation is viewed as a manifestation of a universal cultural practice of valuing women less than men, this may “disabuse well-intentioned non-interventionists from their reluctance to criticise what goes under the label of culture”.59
5.19 Council considers that if Australia permits the continuation of female genital mutilation by those for whom it is a traditional practice it will be saying that what we, as a society, find unacceptable for some children in our society, we accept for other children. This discriminates against those children on whom female genital mutilation would be permitted. Also, if we condone the continuation of this tradition among those in our society who feel compelled to follow it, we consent to it and it is done with our complicity.
5.20 The general tenor of views on female genital mutilation, as evidenced in letters, submissions and public comment on the issue, has been against acceptance of the practice in Australia. Some comments to Council in submissions from individual members of the public were:
[Female genital mutilation] is not acceptable in Australia.
The practice of female genital mutilation is one that has no place in our society.
I agree with the Council’s preliminary conclusion that female genital mutilation is a practice which should not be accepted in Australia.
I am surprised at the cautious nature of your statement. The practice is one which has been shown to be harmful to health and life, and in my opinion it is clearly an abuse of the integrity of the female and a violation of her human rights. As such it is totally unacceptable to be carried out in Australia...
5.21 Some organisations who wrote to Council made the following observations:
The Australian Education Union welcomes reports that both the Australian Medical Association and the [Family Law Council] have requested that the Federal Government take action to outlaw the “circumcision” of females in Australia.
The Ethnic Affairs Commission [NSW] does not believe that female genital mutilation can ever be justified or condoned in our society.
The [National Children’s and Youth Law] Centre strongly believes that there is no therapeutic purpose for female genital mutilation and thus, there is no justification for such procedures. We believe that the practice of female genital mutilation is a gross violation of human rights and such procedures constitute assault and child abuse.
[Defence for Children International - Australia] believes...female genital mutilation is a violation of the child’s rights to life, to health, to physical integrity, to self-determination and to protection from cruel and degrading treatment...
The [NT Women’s Advisory] Council were unanimous in their belief that female genital mutilation should not be allowed to be practised in Australia.
As far as human rights go, it is not honourable or logical to accept customs which cause hurt or damage, therefore female genital mutilation would have to be seen as against the rights of the human child/female. [Independent Islamic Sisterhood]
Women’s Electoral Lobby (NSW) fully endorses the Family Law Council’s preliminary conclusion that female genital mutilation is a practice which should not be accepted in Australia.
5.22 Out of concern for the women and children involved, some submissions addressed the question how the practice was to be eradicated. A number of submissions stressed the need for a primary emphasis on education. This issue is further examined in Chapter 6 (Strategies). The Women’s Electoral Lobby Australia (WEL) made the following point:
WEL is concerned that the criminalisation of female genital mutilation in Australia will punish women who are themselves victims of an oppressive and violent cultural tradition. Legislation is necessary to prevent further occurrences of female genital mutilation from occurring in Australia, and it is important that judges and magistrates are made aware of the undesirability of harshly punishing those women from cultures where female genital mutilation is accepted and practised. The women are already victims. But there must be no more girls and young women made victims in Australia.
Council endorses this view.
5.23 Council’s conclusion. 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.

6. STRATEGIES

In Australia, we are free of many malignant cultural practices endured elsewhere - such as the stoning of adulteresses...amputation of the hands of thieves, flogging and caning, the death penalty, polygamy and polyandry, slavery and inherited bonded servitude...If it is necessary to remind parents not to leave their children in locked cars by enshrining this in legislation, why should we not use the same means to remind parents to refrain from mutilating their children in the name of cultural practice?
Louise M Steer in a letter to the Sydney Morning Herald on 26 February 1994.

For them, their female strength and identity may partly come from the pain and difficulty which female genital mutilation causes, making them ‘strong’ women. One major key to eradicating the practice, then, is to sensitively support women in the communities involved, by understanding their traditions and beliefs. Support is also important for women when they decide not to subject their daughters to female genital mutilation.
Department of Immigration and Ethnic Affairs, “Women affected by old custom require sensitive support” in Post Migration, No. 94, January 1994, page 8.


Introduction
6.01 The main conclusions reached in Chapters 1 to 5 of this report can be summarised as follows:
• Because of its physical, psychological, emotional, sexual and other implications, female genital mutilation is a dangerous practice which also violates women’s and children’s rights. It should not be accepted in Australia.
• Although it is impossible to get reliable statistics on the occurrence of female genital mutilation in Australia, there is enough evidence to indicate that there is at least a low incidence of the practice in this country at this time. There is no sound evidence to indicate that the extreme form (infibulation) is practised in this country at present.
• For at least one generation, women and children from countries which practice female genital mutilation will be under considerable pressures to continue the practice and this factor is especially relevant in considering the strategies for its elimination.
• Australia has an international obligation to work for the eradication of the practice without delay.
6.02 Council considers that Australia should not only be seen to oppose this practice, but that it should take steps which will result in its elimination, both inside and outside this country. There is wide agreement that the practice should not be accepted in Australia, but in the submissions to Council there is considerable disagreement on how this can be best achieved.
6.03 Council’s strategies for the elimination of female genital mutilation, based on the above conclusions, are discussed below.

Legislation as a sole solution
6.04 None of the respondents to Council’s discussion paper recommended that legislation alone would result in the successful eradication of the practice of female genital mutilation. At no stage has Council suggested or advocated such an approach.
6.05 There is considerable apprehension in the vulnerable communities that a purely legislative approach will not assist in eliminating the practice, and Council agrees that legislation is not the solution on its own. It is evident that the purpose of legislation will be misunderstood by the people concerned, in the absence of education about the practice and its effects on children.

The importance of education
6.06 Council regards the issue of education as being of pivotal significance. Female genital mutilation is a centuries-old tradition which will be difficult to eradicate and, therefore, education will need to be at the base of any program which seeks to eliminate it.
6.07 Many submissions made in response to Council’s discussion paper saw the paramount need as being an effective education program:
Education of the highest standard is of paramount importance. [National Council of Women of Victoria].
It is our view that education of the women and girls is the only worthwhile solution to this problem. [Independent Islamic Sisterhood Inc.]
Education will be the central point of any strategy which seeks to eradicate [female genital mutilation]. [Health Department of Western Australia]
In my view, the most important thing to be done is not to introduce legislation (because I think the law is clear) but to work with the communities concerned. Education and information about Australia and our society, and about the position of women, information about the health risks of this practice and its rejection by Australians should be disseminated, bearing in mind that this needs to be done, above all, with women who themselves have been subjected to this practice and who may consider it a significant part of their acceptance in the community. This process calls for resources, energy and tact by committed social educators.
6.08 The following extract from a submission made by the Islamic Society of Victoria Inc. makes a strong and relevant point:
These practices, however distasteful or unjust they may appear to a western audience, are based on traditions which women have built and created their whole meaning of life and identity, both as individuals and part of their society. For some of these women, their female strength and identity may partly come from the pain and difficulty which [female genital mutilation] causes, making them “strong” and “desirable” women.
6.09 Conclusion on the importance of education. 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.

The scope and planning of education.
6.10 Other respondents to the discussion paper focussed on issues relating to the scope of possible education programs and other matters such as planning. Some of the comments made were:
The AMA considers that the basis of any program to eliminate the practice of female genital mutilation should be the education of those cultural or ethnic groups who practise it, of all health professionals and of the general community. {Australian Medical Association]
We believe that education and community awareness campaigns are essential to eliminate female genital mutilation. [Women’s Electoral Lobby (NSW)]
The issues should be included in health worker education programs. [Australian Nursing Federation]
Organisational support. Working with organisations such as the Australian Medical Association would be valuable in an education campaign. [Commonwealth - State Council on Non-English Speaking Background Women’s Issues]
Sensitivity. Development of culturally sensitive and appropriate education and counselling programs, placed within the broader context of child health and welfare principles, coordinated at State and Commonwealth level, involving a range of relevant government agencies, and targeted at vulnerable ethnic communities. [Ethnic Affairs Commission NSW]
Intending migrants. Information and awareness campaigns on prospective migrants and refugees about existing State and Federal laws on assault, child abuse, child welfare, care and protection of children. [Ethnic Affairs Commission NSW]

6.11 First contact with migrants. Council has considered whether intending migrants should be advised that female genital mutilation is not acceptable in this country. It is important that persons who intend to settle here should, in general, be aware of how resettlement will affect their lives and relationships. However, Council is of the view that if intending migrants are advised that female genital mutilation is not acceptable in Australia there is a danger that this may result in children being genitally mutilated before coming to Australia. In Council’s view every effort should be made to prevent female genital mutilation, irrespective of where it occurs. Consequently, Council has concluded that it would be preferable to commence the education process after arrival in this country. In any event, Australia’s position is likely to become quickly known through contact by arrivals in Australia with their families at home.



The delivery of education programs.
6.12 Council does not propose to specify full details of an appropriate education program as this must be worked out in cooperation with the relevant communities. However, in Council’s view, a successful education program will at least need to have the following features:
Target groups
The main target groups would appear to be:
• Women, children and men of specific cultural communities;

• Child protection workers;

• Care providers - including doctors, midwives, nurses, educators, child and ethnic health care workers, social workers, social workers and community workers;

• Police; and



• The Courts and legal profession.
Contents of education programs
• It is clear that members of the relevant communities concerned will need to be involved in the planning of education programs.
• Special education programs will need to be devised for different groups and needs. For example, in addition to the relevant community programs, it is apparent that there will need to be different types of education programs for intending migrants, for professionals and other target groups and for the general community. Women, children and men within the vulnerable communities should all be covered by education programs.
• Programs should inform people, including vulnerable women and children, of notification provisions of State child protection legislation and of other forms of counselling and advice.
• The education programs must be sensitive, understandable, appropriate and positive.
Educators
• In most communities the best educators will be women from the community who oppose the practice and who can work within their communities for its eradication.
• Men should not be excluded from the education program. Female genital mutilation is not just a women’s problem.
• Health workers and other professionals will need to play a supporting role in the education process.
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