Female Genital Mutilation; Further Attempts to Address a Growing Lacuna.

Transcription

1 Female Genital Mutilation; Further Attempts to Address a Growing Lacuna. A summary of some of the new provisions contained in the Serious Crime Act Despite being a criminal offence since 1985, there have been no convictions for Female Genital Mutilation (FGM) offences. The prevalence of FGM remains a significant concern in the UK. The statutory framework governing the criminalisation of FGM continues to expand and develop in an attempt it seems, to address this lacuna. The Female Genital Mutilation Act 2003 Under The Female Genital Mutilation Act 2003 ( the 2003 Act ): It a criminal offence for anyone to perform FGM (section 1). It a criminal offence to assist a girl to perform FGM on herself (section 2). It is a criminal offence to assist someone who is not a UK national or permanent UK resident to perform FGM outside the UK on a UK national or permanent UK resident (section 3). Section 4 extends sections 1 to 3 to any act done outside the UK by a UK national or permanent UK resident. These provisions only apply to UK nationals or permanent UK residents. Serious Crime Act 2015 The Serious Crime Act 2015 ( the 2015 Act ) makes a number of changes to the existing legislative framework. 1

2 Extension of Extra-territoriality Section 70 amends section 3 and 4 of the 2003 Act, in that they now apply to UK nationals and UK residents. The word permanent has been omitted. UK resident is defined as an individual who is habitually resident in the UK. These changes extend the extra-territorial jurisdiction of the provisions, now applying to offences committed abroad by or against individuals who are habitually resident in the UK. It remains to be seen what impact the permanent verses habitually resident change will have in practice. It is anticipated that the amended terminology will encompass a broader spectrum of people irrespective of their immigration status. Anonymity of FGM Victims Section 71 provides for the anonymity of persons against whom an FGM offence is said to have been committed. It is prohibited for any publication to include any information likely to lead to the identification of the complainant. This prohibition lasts for the complainant s lifetime. In criminal proceedings, the court may direct that the restriction does not apply in the following limited circumstances: o The defence would be substantially prejudiced or; 2

3 o The prohibition imposes a substantial and unreasonable restriction on the reporting of the proceedings and it is in the public interest to remove or relax the restriction. It is an offence for the prohibition to be breached. The rationale behind such a provision is designed to encourage reluctant individuals to come forward and give testimony. Offence of Failing to Protect from FGM Section 72 creates a new offence of failing to protect a girl from FGM. Each person responsible for a girl under the age of 16 who has an FGM offence committed against her will be liable for conviction. Those responsible are: o Those with parental responsibility and have frequent contact with her or; o A person who is over the age of 18 and has assumed (and not relinquished) responsibility for caring for the girl in the manner of a parent. It is a defence for the defendant to show that they did not think there was a significant risk of an offence being committed, and could not reasonably have been expected to be aware that there was such a risk, or The defendant took such steps as he or she could reasonably have been expected to take to protect the girl from an FGM offence. 3

4 A defendant is to be taken as discharging these defences if : o Sufficient evidence of the fact is adduced to raise an issue with respect to it and; o The contrary is not proved beyond reasonable doubt. FGM Protection Orders (FGMPO) Section 73 provides for the power for a court to make a FGMPO for the purposes of protecting a girl against the commission of an offence or protecting a girl against whom an offence has been committed. In making an order, the court must have regard to all the circumstances, including the need to secure the health, safety of the well being of the girl to be protected. An FGMPO may contain such prohibitions, restrictions, requirement and other such terms as the court deems fit for the purposes of the order. The terms of the FGMPO may relate to conduct outside of England and Wales. Although a civil order, breaching an order is a criminal offence and a person is liable on conviction on indictment to imprisonment for a term not exceeding five years or on summary conviction to a term of imprisonment not exceeding 12 months. The first FGMPO was made on 17 th July 2015, where Bedfordshire police secured an order and seized the passports of two young girls, where it 4

5 was thought they were going to be taken abroad for FGM in the summer holidays. A further order was made on 24 th July 2015 in respect of three girls aged 6, 9 and 12. The mother of the girls gave evidence in court that the father was pressurising her to allow the procedure to be performed on their daughters. Duty to Notify Police of FGM Section 74 creates a mandatory duty for persons working in a regulated profession in England and Wales to make an FGM notification, if in the course of their work they discover that an act of FGM appears to have been carried out on a girl under the age of 18. A person works in a regulated profession if they are a healthcare professional, a teacher or in Wales, a social worker. An FGM notification must be made to the chief officer of police in the area the girl resides and must identify the girl and explain why the notification is made. The notification can be made orally or in writing. It must be made before the end of one month from the discovery of an act of FGM. A person discovers that an act of FGM has occurred if the girl informs the person it has been carried out; or where the person observes physical signs of FGM and the person has no reason to believe the act was a part of a permitted surgical operation. 5

6 Ongoing Challenges Whilst it is clear that the introduction of the new provisions mark a positive step forward in addressing the genuine risk that thousands of girls and women face from FGM, deficiencies in the legislation remain. Some identifiable difficulties include: The extension of extra-territoriality still precludes those who are temporarily resident in the UK or attend for a short period of time. The breadth of the defences for the new offence of failing to protect and the threshold of what needs to be shown for the defence to be discharged. There is no failing to protect obligations towards those over the age of 16. There is no duty to report FGM in the case of an adult. It is not clear what the sanctions are for failing to report. Conclusion Despite these deficiencies, the changes create a more stringent package of provisions. Undoubtedly, there will continue to be increasing momentum by NGOs and other social movements, for a fully adequate and appropriate response to FGM. The combination of legislative change and continued lobbying, makes the prospect of successful criminal prosecutions, more realistic than they have been to date. This prospect necessitates not only a thorough understanding of the law in this area, but more importantly the surrounding cultural sensitivities, both for those prosecuting and defending. 6

7 Zeenat Islam 27 th July