6.95 It is important that Australia participate in international forums on female genital mutilation and that it continues to be involved in work on international instruments designed to eradicate female genital mutilation globally. In this regard, Council notes the work which was done in Australia on the Declaration on Violence Against Women. Some respondents to Council’s discussion paper supported Australia taking an active role at an international level:
It is vital that Australia participate in international forums aimed at eliminating [female genital mutilation] internationally. [National Council of Women of Victoria Inc.]
[The Uniting Church in Australia (NSW)] ...support...the need to work at an international level.
The AMA considers that international medical bodies, legislators, judiciary and police should cooperate in eradicating the practice of female genital mutilation world-wide. [Australian Medical Association]
It is also essential that funds are provided through Australia’s overseas aid program to support indigenous organisations which are working to eliminate the practice. [Defence for Children International - Australia]
Recommendation 9 International action
6.96 Council urges the Government to participate in international forums and by other means to take part in the international campaign against female genital mutilation.
PERSONS AND ORGANISATIONS MAKING SUBMISSIONS
ACT Women’s Consultative Council
Advisory and Coordinating Committee on Child Abuse (WA)
Angelo, Professor A H
Arena AM MLC, The Hon Franca
Attorney-General’s Department (NSW)
Australian Education Union
Australian Medical Association
Australian Nursing Federation
A woman whose name and address have been withheld
Blue Mountains Community Legal Centre Inc.
Bowra, Ms Carolyn
Catholic Community Services, Archdiocese of Sydney
Charlesworth, Professor Hilary
Child Protection Council (NSW)
Child Protection Council (SA)
Children’s Interests Bureau (SA)
Commonwealth-State Council on Non-English Speaking Background Women’s Issues
Department of Community Services (NSW)
Department of Family Services and Aboriginal and Islander Affairs (Queensland)
Ecumenical Migration Centre (Victoria)
Edwardes MLA, The Hon Cheryl - Attorney-General (WA)
Eritrean Community in Australia (Victoria)
Evatt AO, The Hon Justice Elizabeth
Family Planning Australia Inc.
Feminist Lawyers (Victoria)
Ford, Mr T
Garcia, Ms Patricia D
Health Department of Queensland
Health Department of WA
Hedgcock, Mr R I
Humanist Society of Victoria Inc.
Immigrant Women’s Speakout Association of NSW Inc.
Independent Islamic Sisterhood Inc.
International Women’s Development Agency
Islamic Society of Victoria
Law Institute of Victoria
Law Society of NSW
Legal Services Commission of South Australia
Lotus Counselling Services (WA)
Mulder, Ms Beryl
National Children’s and Youth Law Centre
National Council of Women of Australia Inc Ltd
National Council of Women of Victoria Inc.
National Organisation of Circumcision Resource Centres
Newman, Mrs E M
North Adelaide Multicultural Services Inc.
NSW Nurses Association
Office of Multicultural Interests (WA)
Office of the Status of Women, Tasmania
Owen, Mrs Shirley
P.E.E.R Institute Perth
Reproductive Technology Working Group, ACT Women’s Health Network Inc.
Robertson, Mr and Mrs D
Shanahan, Mr John
Sisters in Law (NSW)
Stevens, Ms Sacha (Qld)
Tasmania Council of Social Service
Theobald, Mr Philip R (Qld)
Tonti-Filippini, Mr Nicholas
Uniting Church in Australia, Queensland Synod
Uniting Church in Australia, NSW Synod
Victorian Bar Council
Victorian Secular Society
Watson MLA, Dr Judyth (WA)
Williams, Dr George L
Women’s Advisory Council (NT)
Women’s Electoral Lobby Australia Inc.
Women’s Electoral Lobby, Cairns, Queensland
Women’s Electoral Lobby (NSW)
Women Lawyers Against Female Genital Mutilation
Working Group on Female Circumcision
- African Information Network
- Australian Oromo Community
- Eritrean Community Association
- Eritrean Women’s Group
- Ethiopian Women’s Association
- Islamic Call Society of Australia
- Islamic Society of Victoria
- Oromo Community Association
- Somalia Community in Victoria
- Somali Land Women’s Group
- Ecumenical Migration Centre
- Ethnic Communities Council of Victoria
Wotton MP, The Hon David, Minister for Family and Community Services (SA)
BRITISH AND CANADIAN LEGISLATION
UNITED KINGDOM PROHIBITION OF FEMALE CIRCUMCISION ACT 1985
The (UK) Prohibition of Female Circumcision Act 1985 includes the following provisions:
1(1) Subject to section 2 below, it shall be an offence for any person -
(a) to excise, infibulate or otherwise mutilate the whole or any part of the labia majora or labia minora or clitoris of another person; or
(b) to aid, abet, counsel or procure the performance by another person of any of those acts on that other person’s own body.
(2) A person guilty of an offence under this section shall be liable -
(a) on conviction on indictment, to a fine or to imprisonment for a term not exceeding five years or to both; or
(b) on summary conviction, to a fine not exceeding the statutory maximum (as defined in section 74 of the Criminal Justice Act 1982) or to imprisonment for a term not exceeding six months, or to both.
Section 2 of the Act makes it clear that the Act doe not render unlawful a surgical operation which is necessary for the physical or mental health of the person on whom it is performed. In determining whether the operation is necessary for the mental health of a person, no account is to be taken of any belief of that person or any other person that the operation is required as a matter of custom or ritual.
CANADA BILL C-126
This legislation is an Act to amend the (Canada) Criminal Code and the Young Offenders Act.
The problem of female genital mutilation has surfaced in recent years as an issue in Canada, and prompted a review in 1992 by the Canadian Department of Justice. That review concluded that such practices were clearly against several provisions of the Canadian Criminal Code. However, the review also raised concerns that the law did not prohibit the removal of a child from Canada for the purposes of having genital mutilation performed on that child. Bill C-126 was drawn up in response to those concerns.
The following provision in Bill C-126 is particularly relevant to female genital mutilation:
273.3 (1) No person shall do anything for the purpose of removing from Canada a person who is ordinarily resident in Canada and who is
(a) under the age of fourteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 151 or 152 or subsection 160(3) or 173(2) in respect of that person;
(b) over the age of fourteen years but under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 153 in respect of that person; or
(c) under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section 155 or 159, subsection 160(2) or section 170, 171, 267, 268, 269, 271, 272 or 273 in respect of that person.
Section 273 refers to two age limits, which reflect the age limits of the domestic offences against children. For example, sexual interference (section 151) and invitation to sexual touching (section 152) are offences if committed against those under 14, while sexual exploitation is an offence committed against anyone under the age of 18 years by a person in a position of trust or authority.
The new offence is a domestic offence, in the sense that it prohibits conduct occurring in Canada; that is, it prohibits the doing of anything for the purposes of removing from Canada a young person with the intent of committing outside Canada an act that would be one of the enumerated offences if committed in Canada. There is, therefore, in law no element that must exist or occur outside Canada in order for the offence to exist.
AUSTRALIAN AND OTHER LAWS OF RELEVANCE
1. Assault. Any intervention that interferes with a person's bodily integrity through the use of force, no matter how small, is, in law, a trespass to the person. A trespass to the person is either a crime (called "an assault") that can be punished under State and Territory criminal laws, or it can be a tort or civil wrong (assault and/or battery), for which, under State and Territory laws, the person injured can claim damages or compensation from the person who committed the trespass. Most trespasses committed intentionally - for example, where a person deliberately punches another - are both crimes and civil wrongs.
2. Current State/Territory laws of relevance. Based on advice received from the States and Territories, the following summarises the current position under the criminal laws of Australia. In the case of WA additional information about the Criminal Code was supplied in the submission from the WA Attorney-General:
New South Wales . The following provisions of the Crimes Act 1900 (NSW) are relevant: section 61 (common assault), section 59 (assault occasioning actual bodily harm) and section 35 (malicious wounding or inflicting grievous bodily harm).
Victoria. Opinion at officer level in the Justice Department and the Department of Health and Community Services in Victoria is that existing laws on assault would cover the situation in that State.
Queensland. The Criminal Code (Queensland) contains a number of provisions of relevance including section 245 (definition of assault), section 246 (Assaults unlawful), section 335 (common assault) and section 320 (grievous bodily harm). Section 1 of the Criminal Code contains definitions of “bodily harm” and “grievous bodily harm”.
South Australia. The South Australian criminal law contains “the usual array of non-fatal offences against the person and sexual offences against minors.”
Western Australia. Section 222 of the Criminal Code (WA) provides that any application of force to the person of another without that person’s consent is assault and any assault (unless authorised, justified or excused by law) is unlawful and constitutes an offence. Apart from the general provisions in Chapter 5 of the Code relating to criminal responsibility, various circumstances in which an assault will be lawful are set out in the Code. For example, section 257 provides that it is “lawful for a parent or person in the place of a parent to use by way of correction towards the child...under his care, such force as is reasonable in the circumstances”.
The WA Code defines “bodily harm” as “a bodily injury which interferes with health or comfort”. “Grievous bodily harm” means any bodily injury of such a nature as to endanger life or to cause, or be likely to cause, permanent injury to health.
Tasmania. Tasmania expressed the view that “a surgeon who performed genital mutilation on a girl would be guilty of an assault under section 184 of the Criminal Code unless that surgeon’s conduct was covered by section 51 of the Code.” Section 51 of the Code relates to consent to medical procedures on children. (The Tasmanian respondent made no reference to the situation where female genital mutilation is performed by elder women or “midwives”.)
Northern Territory. Assault is dealt with in sections 186, 187 and 188 of the Criminal Code (Northern Territory). Section 187 defines “assault” as “the direct or indirect application of force to the person without his consent or with his consent if the consent is obtained by force..” Section 186 states that any person who unlawfully causes bodily harm to another is guilty of a crime and is liable to imprisonment for 5 years or, upon summary conviction, to imprisonment for 2 years. Section 188(2) states that if a person is assaulted under 16 years of age and the offender is an adult, the offender is guilty of a crime and is liable to imprisonment for 5 years or, upon summary conviction, to imprisonment for 2 years. The NT respondent said that under NT laws “it may be difficult to succeed in an assault charge where there was consent.”
Australian Capital Territory. The ACT said that, as elsewhere in Australia, existing criminal law in the ACT would apply to the practice of female genital mutilation.
3. The common law. At common law some trespasses are not crimes or civil wrongs as the law regards them as justified. This will be the case where, for example, a valid and effective consent to the trespass has been given by a person whom the law regards as competent to give consent.
4. In 1989 the Commonwealth Government (at that time responsible for criminal law in the ACT) produced a working paper containing proposals to reform ACT criminal legislation, specifically in relation to offences against the person. Included in that working paper was a specific recommendation to prohibit female circumcision. However, responsibility for criminal legislation in the ACT fell to the ACT Government before the proposal was implemented.
5. Child Welfare legislation. All States and Territories have child care and protection legislation which authorises State/Territory authorities to intervene where a child is at risk of abuse or ill-treatment. Sections 4, 10 and 11 of the Community Welfare Act (NT), for example, empower the authorities to take a child “in need of care” into custody.
6. Section 71 of the Children’s Services Act 1986 (ACT) defines the circumstances for intervention by the ACT Family Services Branch, the Community Advocate or the Court when a child is in need of care. One of the circumstances is where the child has been, or is likely to be, physically injured. Children may also be considered in need of care where they have suffered psychological damage of such a kind that their emotional or intellectual development has, or will be, endangered. Section 139 of the Children’s Services Act 1986 (ACT) creates offences involving ill-treatment of a child. The Act provides protections for medical practitioners, police officers and welfare authorities to take such steps as are considered necessary for the immediate safeguarding of the a child who has been ill treated.
7. In the case of child abuse allegations made by parties to applications under the Family Law Act, for example, the actual investigation of the allegations is carried out by State authorities which have the expertise and the personnel, supported by legislation, to do such investigations. Council notes that there are requirements for the reporting of abuse or suspected abuse and that child welfare authorities are the appropriate bodies for referral of allegations of abuse under the Family Law Act.
8. Civil actions. In addition to female genital mutilation being an assault, for which criminal sanctions might be imposed, it would also constitute a civil wrong - a trespass to the person (assault and battery) for which personal injury damages might be available. And, under State and Territory criminal injury compensation legislation, a person who has had the procedure performed on her may seek compensation for the injuries she has suffered.
THE LAWS OF SOME OVERSEAS COUNTRIES
9. A number of overseas countries, including countries which have migrant populations, have already confronted this issue have done so in a variety of ways. The position of some overseas countries is therefore briefly examined below.
10. United Kingdom. The Prohibition of Female Circumcision Act 1985 (UK) prohibits female genital mutilation in the UK. Extracts from this Act are set out in Appendix A. The Act is supplemented by the Children Act 1989 which provides for the investigation of suspected violations of the female genital mutilation prohibition and enables the removal of the child from her home where this is the only way her protection can be guaranteed. The Children Act also empowers the courts to prohibit parents from removing their children from the country to have the operation done elsewhere.
11. Canada. Canada’s 1993 Bill C-126 to amend the Criminal Code and Young Offenders Act received Royal Assent on 23 June 1993. Clause 3 of the Bill creates section 273.3 of the Criminal Code which is designed to extend domestic protection to children who are normally resident in Canada, from their removal from Canada with the intention of committing assault causing bodily harm, aggravated assault or any sexual offence. While having general application, the offence was initially developed in response to a concern that Canadian domestic law did not provide sufficient protection against the practice of female genital mutilation. Further details of Bill C-126 are provided in Appendix A.
12. The offence applies to anyone engaging in the prohibited conduct in Canada. Additionally, its protection extends to all children ordinarily resident in Canada, whether citizens or landed migrants.
13. The offence has general application, but was initially developed in response to a concern that Canadian domestic law did not provide sufficient protection against the practice of female genital mutilation. Action was seen as necessary in conformity with Article 24(3) of the Convention of the Rights of the Child, which provides: “State parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.”
14. Section 273.3 is preventive in nature as it allows for intervention before harm is done to the child. However, it is acknowledged that it will not prevent abuse in all cases and this remains an issue of concern. The Canadian view is that further steps require an international convention to establish principles on which States will protect children subject to abuse beyond their borders.
15. Work is currently under way with the Canadian Medical Association and the relevant immigrant associations to provide education on the health and legal aspects of the practice of female genital mutilation. The College of Physicians and Surgeons of Ontario has declared that any doctor performing female genital mutilation could be guilty of professional misconduct.
16. France. In France62 female genital mutilation is not specifically penalised by French law but is actionable as a mutilation under Article 312 of the Penal Code which punishes violence against children. Under this Article, a penalty of 10-20 years imprisonment is imposed. Where the mutilation is carried out by a parent or guardian, a life sentence is imposed. Generally professional persons who perform female genital mutilation, and are solicited by the parents, are treated more harshly than the parents of the child, who can often rely on such matters as respect for customary law and social pressures.
17. The Medical Ethics Code 1979 forbids the practice of female genital mutilation except where medically required. The French Medical Board is not aware of any breaches of the Code. Furthermore, where a doctor observes that a child under the age of 15 years has been the victim of maltreatment or neglect, the doctor is required to alert the authorities.
18. Europe. The Council of Europe has not specifically addressed the question of female genital mutilation. It is understood the position in several countries is similar to France63. Sweden was one of the first countries to specifically condemn female genital mutilation. It banned health professionals from performing the operation in 1982.
19. African countries. In 1982 Kenyan President Moi condemned female genital mutilation and called for prosecution of those who practised it. Kenya passed legislation banning female genital mutilation in 1990, but various forms of female genital mutilation are still practised there. In Sudan the Ministry of Health launched a campaign against female genital mutilation in 1946 and succeeded in getting a law passed prohibiting infibulation but allowing sunna. The law was primarily a response to pressure by British colonial powers and little action was taken to enforce it. Burkina Faso has incorporated into its draft constitution a prohibition on female genital mutilation. In 1991 the Cote D’Ivoire (Ivory Coast) advised the United Nations that existing provisions of the nation’s criminal code could be used to prohibit the practice.
20. The position in Egypt is not clear. The educated community regard the practice as having been banned by President Nasser in 1958. Others say that partial clitoridectomy is allowed, but because of the confusion excision and infibulation are both still practised in Egypt. For the most part legislation has not been effective in eliminating or reducing the practice of female genital mutilation in Africa, but this appears to have been due to problems of enforcement.
ADAMSON, Fiona, 1993, Female Genital Mutilation: A Counselling Guide for Professionals, Foundation for Women’s Health (FORWARD).
AL NAGGAR Sheikh Dr Abdel Rahman, Female Circumcision and Religion, Translation of a communication presented at the Inter-African Committee on Traditional Practices, Nairobi, 12 July 1985.
ARMSTRONG S, 1991, “Fighting a cruel tradition”, New Scientist, February 1991, page 22.
Australian Law Reform Commission, 1991, Multiculturalism: Criminal Law, ALRC DP 48, May 1991.
Australian Law Reform Commission, 1986, The Recognition of Australian Customary Laws, Report No. 31.
BADAWI Mohamed, 1989, “Epidemiology of Female Sexual Castration in Cairo, Egypt”, The Truth Seeker, July August 1989, 31-34.
BELL, Diane, 1993, Daughters of the Dreaming, 2nd Edition, Minneapolis.
BIGELOW Jim, 1992, The Joy of Uncircumcising! Restore your Birthright and Maximise Sexual Pleasure, Hourglass Book Publishing, Aptos, CA.
Boston Women’s Health Book Collective, 1985, The New Our Bodies, Ourselves, Penguin Books, Boston.
BOULWARE-MILLER Kay, 1985, “Female circumcision: challenges to the practice as a human rights violation”, Harvard Women’s Law Journal, Spring 1985, pages 155-177.
BOWRA, Carolyn, 1994, “The debate on clitoridectomy: ‘Act of love’ or act of oppression?” (Article for publication).
BRENNAN Katherine, 1989, “The influence of cultural relativism on international human rights law: female circumcision as a case study”, Law and Inequality: A Journal of Theory and Practice, Vol 7, July 1989, pages 367-398.
CERNY SMITH Robyn, 1992, “Female circumcision: bringing women’s perspectives into the international debate”, Southern California Law Review, Vol 65, July 1992, pages 2449-2504.
DIRIE Mandi A and LINDMARK Gunilla, 1991, “A hospital study of complications of female circumcision”,