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The Criminalisation Of Female Genital Mutilation In Queensland - [2002] MurUEJL 16

The Criminalisation Of Female Genital Mutilation In Queensland

Author: Zara Spencer

Student, University of Queensland T C Beirne School of Law

Issue: Volume 9, Number 3 (September 2002)



Contents:
The Criminalisation Of Female Genital Mutilation In Queensland

    1. Introduction

  1. As long ago as 1994 the Queensland Law Reform Commission recommended that the practice of female genital mutilation (FGM) be made a specific offence. The Criminal Code Act 1899 (Qld)[1] has however only recently been amended to specifically criminalise FGM under sections 323A and 323B. [2]

  2. The term FGM is highly value laden.[3] Nevertheless the alternative, "female circumcision" is misleading, as unlike its male namesake the procedure on women often involves the removal of healthy organs as opposed to skin. The term FGM highlights the severity and irreversibility of the practice. Despite criticism, the term FGM is currently used in all official documents of the United Nations and in the documents of world conferences and has been adopted by the Queensland legislators.[4]

  3. The practice of FGM has been defined in a joint statement made by WHO, UNICEF, and UNFPA:

  4. Female genital mutilation comprises all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs whether for cultural or other non-therapeutic reasons[5]

  5. The three agencies have classified FGM into four typologies.[6] Types I (clitoridectomy) and II (excision) generally account for 80% of FGM, type III (infibulation is the most severe) 15% and type IV (a set of unclassified procedures) 5%.[7] The proportions of the typologies vary greatly from country to country.[8] Furthermore, the practicality of distinguishing between the typologies is arguably artificial as much depends upon the skill and eyesight of the "performer", the sharpness of the instrument and the compliance of the child.[9]

  6. The following analysis will consider the practice itself, theoretical approaches to interventions, Australia's international obligations and Queensland's response to FGM.

    2. The Practice of FGM

    I turned my head toward the rock; it was drenched with blood as if an animal had been slaughtered there. Pieces of my meat, my sex, lay on top, drying undisturbed in the sun . . .[10]

    i) How

  7. Usually no steps are taken to reduce the pain, instead the girl is held down by several women[11] with her legs open.[12]

  8. Mutilation may be carried out using broken glass, a tin-lid, scissors, a razor-blade, kitchen knives, the teeth of the midwife or sharp stones.[13] When infibulation (type III) takes place the raw edges of the labia majora are brought together using thorns, poultices or stitching and the legs are bound or tied together for up to six weeks.[14]

    ii) Who

  9. The person performing the mutilation may be an older woman, a traditional midwife/healer or a doctor.[15]

    iii) When

  10. FGM is undertaken in most communities on girls between 4 - 14 years.[16] Of particular concern are reports that the average age for mutilation is falling.[17]

    iv) Why

  11. Reasons given by practicing populations include: religion, despite the fact the Koran does not require the practice, and that FGM helps maintain cleanliness and health.[18] Sociologically: tradition, culture and gender identity are key reasons for continuation of the practice. It is believed that FGM preserves virginity, family honour and prevents immorality.[19]

  12. Ironically, after being mutilated some women continually seek experiences with new sexual partners due to sexual dissatisfaction, whilst others pretend to still be virgins by getting stitched-up tightly again.[20] Women are indoctrinated to believe that the practice results in increased sexual pleasure for men, however an interview with 300 polygamous men revealed 89% preferred unmutilated women.[21]

  13. Myths given by the affected communities necessitating the practice include; the death of a child during childbirth or a man during sexual intercourse if the clitoris is touched, without excision a woman's genitals can grow and hang down between her legs and the food that an unmutilated women cooks smells bad.[22]

    v) Consequences (What)

  14. The immediate and long-term health consequences of FGM vary according to the type and severity of the procedure performed.[23] Immediate complications include severe pain, urine retention, shock, haemorrhage and infection, the latter two can both cause death. Long-term consequences include cysts, abscesses, keloid scarring, damage to the urethra, dysparenunia, difficulties with childbirth and sexual dysfunction.[24]

  15. Personal accounts of mutilation reveal feelings of anxiety, terror, humiliation and betrayal, all of which would be likely to have long-term negative psychological affects.[25]

    vi) Prevalence

  16. An estimated 135 million of the world's girls and women have undergone genital mutilation and 2 million girls a year, approximately 6 000 a day, are at risk of FGM.[26]

  17. FGM is practised in more than 40 countries; this number is rising because of increasing migration to Western countries from traditionally practising countries.[27] It has been reported in Australia, Canada, Denmark, France, Italy, Netherlands, Sweden, UK and USA.[28]

  18. FGM is practised extensively in Africa, is common in the Middle East and has been reported among Muslim populations in Indonesia, Sri Lanka, Malaysia and among the indigenous peoples of Columbia, Mexico and Peru.[29]

    Australia

  19. As of 1991 Census data indicated that 75 986 women from countries that practise some form of FGM reside in Australia, 21 812 of whom were from African countries.[30] During 1991-1992 and 1992-1993 a further 1 601 women arrived from African countries, with 470 being girls under 16 years of age.[31]

  20. Despite a lack of empirical evidence, in 1994 there were several anecdotal reports of FGM being practised in Australia. At this time the Family Law Council (FLC) hypothesised a positive lineal relationship between an increase in numbers of migrants from countries practising FGM and the incidence of the practice in Australia.[32] Since then, the focus of the offshore component of the Australian Humanitarian Program has shifted to the resettlement needs of persons from the former Yugoslavia, the Middle East and Africa, with the latter two being the predominant regions where the practice is performed.[33]

  21. There has also been an increase in the number of Humanitarian Program[34] and Special Humanitarian Program[35] visas being granted to people from Africa in the 1999-2000 program year.[36]

  22. As of 1996[37] the number of persons from countries that practice FGM resident in Queensland totalled 3 729.[38] Program co-ordinators of the Family Planning Queensland FGM Education Program have received anecdotal information about examples of the practice being performed in an area north of Cairns and of children having the procedure performed whilst on holiday in their country of birth.[39]

  23. Given the above data an ever-increasing population of persons from countries which practice FGM are arriving in Australia, consequently the legitimacy of concern about the practice within this country can no longer be seen as unfounded.

    3. Theoretical Approaches

    FGM is practiced by many cultures. It represents a human tragedy and must not be used to set Africans against non-Africans, one religious group against the other, or even women against men.[40]

  24. When debating the necessity for express legislative intervention many have borrowed from theoretical schools of thought to substantiate their arguments. Thus, when analysing the inclusion of sections 323A and 323B into the Criminal Code the major approaches and their concrete applications will be briefly considered.

    i) Cultural Relativist

  25. The premise of cultural relativist theory is that as all cultures are different, thus a person outside a particular culture cannot judge it.[41] Consequently legislative action and other "judgemental" interventions are inappropriate.

    ii) Feminist

  26. General feminist thought sees the practice of FGM as a means to exercise social control over women in societies which are highly patriarchal and patrilineal. There are a number of divergent feminist schools of thought that vary dramatically in their support of legislative intervention.

    iii) Human Rights

  27. Due to word constraints a human rights theoretical perspective will be analysed in greatest detail, so that consideration can be given to Australia's international obligations. It is however important to note that given the nature of FGM the human rights perspective is often considered in lieu of general feminist ideologies.

  28. Several factors have previously prevented FGM from being seen as a human rights issue, namely the fact that it is sanctioned by private actors (family members) as opposed to state officials and the belief that the practice is beneficial and of cultural import.[42] It is now recognised that traditional interpretations of international standards have created an artificial hierarchical distinction between violations by state forces in the realm of public political activity and similar abuses in the "private" sphere.[43]

  29. While the notion of international human rights standards has broad support, it is directly criticised by advocates of "cultural relativism", whose major argument is that International Human rights standards are based on specifically Western philosophical and social values and is thus a version of neo-colonialism. However this is overcome by recognising that FGM is one of many forms of social injustice which women suffer world-wide and is no different from Western practices that value women less than men.[44]

  30. Human Rights approach and Australia's international obligations Some of the instruments and declarations that require Australia to work for the eradication of FGM, as the country is a party to, supports or was significantly involved in the drafting process include; the Universal Declaration of Human Rights (1948), Convention on the Elimination of All Forms of Discrimination Against Women (1979), Convention on the Rights of the Child (1989), Declaration on Violence Against Women (1993) and Declaration and Platform for Action of the Fourth World Conference on Women (1995).[45]

  31. Consequently, given both the human rights perspective and Australia's obligations under international standards, the recent legislative action taken by the Queensland government against FGM is but one of the measures that should be taken to prevent violence against women and to protect children from abuse.[46]

    4. Legal Interventions - legislation and child protection

    Even if I have to do it hidden in a room, I'll continue . . . I'm the sixth generation of my family to do this. I began with my own daughter. Charity begins with oneself, doesn't it?[47] - buankisa[48]

    i) The Need for Legislation

  32. Specific legislation serves to extinguish any doubt within the general community as to the illegality of FGM, by officially stating that the practice of FGM will not be tolerated. This is of particular import in Queensland given previous doubts as to the adequacy and clarity of the law concerning FGM under the Criminal Code.[49]

  33. Despite its importance education alone cannot serve to eliminate FGM within an acceptable time frame. Education aims to change attitudes by raising awareness, however not all people's attitudes can be changed by way of education. Notwithstanding educational programs that focus on the detrimental consequences the practice of FGM has on health, some members of the affected communities refuse to accept that all types of FGM are dangerous.[50]

  34. Educational programs are not compulsory and as such cannot provide a guarantee that all sections of the communities will be reached. Furthermore, those women that do attend may be forced to withdraw, due to friction within the family.[51] It has been widely acknowledged that the cultural pressures on mothers, even when they move to completely different cultures remain a major consideration in the perpetuation of the practice.[52]

  35. Legislation can provide legal protection and support to women and children who wish to resist the practice within their communities.[53] Legislative action is not however without its critics. Nevertheless, many of the arguments voiced against legislation merely support the provisions of relevant international instruments such as the Declaration on Violence Against Women (1993) that in order for legislation to be effective, it must be accompanied by a broad and inclusive strategy for community-based education and awareness-raising.[54]

  36. Britain, Sweden, Canada and the US have all passed specific legislation criminalising the practice of FGM, with France and many other European countries addressing FGM through their existing criminal laws concerning intentional or negligent assault, or the unlicensed practice of medicine.[55] Within Australia: NSW, SA, ACT, NT, Victoria and Queensland have expressly legislated against the practice of FGM, only WA has failed to do so, considering its existing Criminal Code to be adequate.[56]

    ii) Queensland's legislative response

  37. The inclusion of sections 323A and 323B into the Criminal Code expressly prohibit the practice of FGM.[57] Legitimate medical procedures and sexual reassignment procedures have been excluded from the definitions.

  38. Section 323A(1) criminalises the performance of FGM and although s 323A(3) has not replicated the WHO classification typologies, it would appear the definition of FGM without having yet been tested in court fully encompasses all recognised acts of FGM. The penalty of a maximum term of 14 years is indeed severe, however there has been no legislative distinction made within either section 323A or 323B, between health professionals and non-professionals that perform FGM.[58] Furthermore no sanctions have been introduced to discipline institutions in which it is found that FGM has been performed. This is particularly disappointing given the strong condemnation of medicalisation of FGM by the AMA, WMA and WHO.[59] Additionally the Queensland legislation fails to impose penalties on those who aid, abet or arrange for the performance of the procedure unless it concerns the removal or arrangements to remove the child from the state, in which case section 323B is applicable.

  39. Section 323B specifically deals with the intention or actual taking of a child outside of Queensland to be genitally mutilated. Previously there was no law that prevented a person from taking a child, normally resident in Australia, out of the country for the performance of the procedure. Regardless of whether authorities were aware or reasonably aware of this intention. There was doubt as to the ability under Australian law to prosecute the person upon their return.[60] Section 323B presumes that the removal of the child overseas is for the purpose of performing FGM, however the accused can give evidence to rebut this presumption.[61]

  40. It is also noted that the practical application of this section can be seen as problematic particularly with respect to evidentiary matters. However, given the serious consequences for children such legislative action is necessary to provide the highest level of protection possible for the children and women concerned. Section 323B also serves to illustrate Australia's (Queensland's) commitment to carrying out its previously mentioned international treaty obligations.[62]

    iii) Child Protection Programs

  41. Child protection mechanisms ensure the safety of the child by providing additional scope for sensitive community education and social work interventions, that are tailored to the needs of children. All of Australia's states and territories have jurisdiction under general child protection legislation to respond to incidences of FGM as a matter of physical abuse.[63]

  42. There is however no specific child protection protocol within Queensland for addressing the practice of FGM. This is problematic, given the recent criminalisation of FGM, the cultural nature of the practice and some of the unique qualities of the procedure that may distinguish it from other offences against children.[64] Given the recent criminalisation of FGM, it is also important that guidelines be developed for use by Suspected Child Abuse and Neglect teams, for the investigation and handling of families at risk and families suspected of having had their daughters mutilated.[65] Finally, the limited scope of mandatory reporting within Queensland under the Health Act (1937) also needs to be extended to a wider range of professions beyond medical practitioners, who are required to report suspected maltreatment or neglect.

    5. Education

    . . . culture is not static but it is in constant flux, adapting and reforming. People will change their behaviour when they understand the hazards and indignity of harmful practices and when they realise that it is possible to give up harmful practices without giving up meaningful aspects of their culture.[66]

    i) The complementary role of education

  43. Despite criticisms concerning the efficacy of education as the sole tool against FGM, it plays an essential complementary role to legislation. In the absence of educational programs communities will misinterpret the purpose of legislation.[67]

  44. The importance of education is further highlighted by the reasons given by the affected communities for the perpetuation of the practice. Many people who practise FGM see Western societies as sexually promiscuous, and in the process of disintegration: consequently citing FGM as a defence against Europeanisation and its corrupting influences.[68]

    ii) Educative Programs

  45. The Commonwealth provides funding to the States and Territories through the Public Health Outcome Funding Agreements for a range of services, including those to address FGM.[69]

  46. At the state level the Commonwealth funding was distributed to Queensland Health which in turn funded the Family Planning Association of Queensland (FPQ) in November 1997, to develop and implement an education program for FGM. A project reference committee was established and two project officers were appointed. Initial training spanned from 1998 to 1999 and five women from the African Community were employed to provide health education.[70] Two of these African women ran regular community sessions throughout 1999-2000 on general reproductive sexual heath and FGM. The current program is a training module for the Horn of Africa community and is concerned with the facilitation of making informed choices by providing accurate information about the consequences of FGM to health.

  47. The employment of women from the affected African communities by FPQ is particularly important given the fact that many of the affected women are distrustful of what those outside of their community have to say about FGM.[71] However, it must be noted that many communities have not been accessed and until recently the sole target population was that of African migrants residing in the Brisbane Metropolitan area. The current program has however proposed to extend its services to Asian and Arabic communities.

  48. Given the criminalisation of FGM it is now imperative to ensure that all communities are aware of the law. Although program reports indicate that community educator trainees are informed of the illegality of the practice in Australia the detail of these explanations are unclear and would seem to be inadequate given the recent express legislative repercussions for the performance of the practice.

  49. The current program has shifted away from the education of medical and allied health professionals. Nevertheless, it is important that such educational initiatives are not forgotten as the stigmatising and possibly injurious affects that incorrect assumptions by practitioners about FGM may have on women and children who have undergone the practice is a continuing reality.

  50. Of further concern is the fact that there is no counselling program in place in Queensland unlike in other states, particularly given that many of the psychological effects of FGM can become more acute when placed in a non-practising culture. The women may become more conscious of their condition, question their womanhood and feel abnormal after making friends with women of their own age that have not undergone the procedure.[72]

    6. Conclusion

  51. It would be naive to assume that FGM stops as soon as people from practicing communities enter Australian borders; furthermore there has been anecdotal evidence of the performance of FGM within Queensland. In order for sections 323A and 323B of the Criminal Code to be effective they must be accompanied by a broader strategy for community-based, particularly legislative education than is in effect at the moment. So as to ensure that the law is not misunderstood, otherwise the amendments shall be counterproductive. The practice of FGM is an unnecessary, life-threatening procedure that damages not only the women's physical, mental, body image and general well being but also her sexuality. To guarantee the integrity of women, serious efforts must be taken to ensure that the practice is discontinued and that interventions that aim to do so are successful.

Appendices

Appendix A[73]

Type I:

Excision of the prepuce, with or without excision of part or all of the clitoris

Type II:

Excision of the clitoris with partial or total excision of the labia minora

Type III:

Excision of part or all of the external genitalia and stitching/narrowing of the vaginal opening (infibulation)

Type IV:

Unclassified: includes pricking, piercing or incising of the clitoris and/or labia; stretching of the clitoris and/or labia; cauterisation by burning of the clitoris and surrounding tissue; scraping of tissue surrounding the vaginal orifice (angurya cuts) or cutting of the vagina (gishiri cuts); introduction of corrosive substances or herbs into the vagina to cause bleeding or for the purposes of tightening or narrowing it; and any other procedure that falls under the definition of female genital mutilation given by the joint statement of WHO, UNICEF and UNFPA, Geneva 1997.

Appendix B[74]

Physical Consequences and Complications

   Immediate complications
a) Bleeding
i) Death
 ii)  Haemorrhage
 iii)  Shock
iv)  Anemia
v)   Hypotension
b) Injury to neighbouring organs
c) Oliguria
i)    Urine retention
ii)   Dehydration
iii)  Urethral injury
iv)  Urethral edema
d) Infection
i)    Cellulitis
ii)   Fever
iii)  PID
iv)  Tetanus
v)   Gangrene
vi)  Septic shock
e) Fractures
i)    Clavicle
ii)   Femur
iii)  Humerus
   Long-term complications
a) Type I and II
i)    Failure to heal
ii)   Abscess formation
iii)  Dermoid cyst
iv)  Keloids
v)   Urinary tract infection
vi)  Scar neuroma
vii) Vulva abscess
viii) Painful sexual intercourse
ix)   HIV/AIDS, hepatitis B and other blood-borne diseases
x)    Pseudo-infibulation
b) Type III
i)    All of the above for Types I and II as well as:
ii)   Reproductive tract infections
iii)  Dysmenorrhoea
iv)  Chroic urinary tract obstruction
v)   Urinary incontinence
vi)  HIV/AIDS, hepatitis B and other bloodborne diseases (increased risk due
to repeated cutting and stitching, higher incidence of wounds and
abrasions during sexual intercourse, and the possibility of anal intercourse 
when vaginal penetration is impossible).
vii)  Stenosis of the artificial opening to the vagina
viii) Complications with labour and delivery
ix)   Injury to neighbouring organs
x)    Infibulated scar
xi)   Apareunia
xii)  Dyspareunia



      

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