The Hidden Horrors of Female Genital Mutilation;

A Comparative Exploration into the Prevalence of this Criminal Practice in SL and the UK.



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by Nabila Shabbir


As a recent graduate in BSc Criminology and Sociology at London Metropolitan University and a prospective law student at BPP Law School, I have had the extreme privilege of undertaking an internship at Godfrey Cooray Associates, Negombo in collaboration with Travelers worldwide in London. The experience has provided me with a wealth of knowledge about the Sri Lankan legal system, ranging from its structure to its many constitutions. The internship also permitted my visiting of the Magistrates, District and High Court case hearings as well as the Supreme Court in Colombo. This opportunity has certainly provided me with a memorable experience that shall position me particularly well for my future career in law.


Having spoken to various legal professionals whilst on this internship, it became clear to me that the subject of Female Genital Mutilation (FGM) was scarcely heard of in Sri Lanka. I found myself often having to define this criminal practice, which the World Health Organisation terms as the intentional partial or total removal of the external female genitalia for non-medical purposes. When comparing this reaction to the UK, FGM is a subject that warrants much public attention and debate. Given my educational background in Criminology and Sociology fused with my interest in law, this article shall compare the prevalence of FGM both in Sri Lanka and the UK with reference to the relevant legislations.


When one first reads about FGM, the initial question usually asked is "Why?"


A leading reason for the continuation of FGM is the desire of communities to exert control over female sexual urges. Much research points out that the criminal practice is prevalent mostly amongst African societies. Alice Walker and Pratibha Parmar's 1996 research pointed out that FGM becomes a patriarchal wound that forces victims into prisoners of ritual. They believed that the repressing of female sexuality through FGM demonstrates such contempt for the female body as well as the female mind.


FGM in the UK


While the exact prevalence of FGM is difficult to establish due to many cases going unreported, it is estimated that 103,000 women in the UK are already victim to FGM. What's more, approximately 20,000 British African girls under the age of fifteen are likely to undergo the procedure. Even more alarming figures published by the charity Plan UK reveals that FGM cases were reported every 96 minutes between October 2014 and September 2015. It seems that the crime of FGM has reached the tip of the iceberg, and so one would assume that the law would play a vital role in eradicating this criminal practice.


FGM was made illegal in the UK in 1985 yet evidence suggested that this law was evaded with the taking of British girls abroad to be circumcised. This loophole in the law was addressed with the FGM Act in 2003, which made it illegal to assist FGM both in the UK and abroad. The change in the law also saw the punishment of the perpetrators of FGM increase, with a penalty not exceeding fourteen years imprisonment. Despite this, it is still estimated that approximately 500 British girls are at risk of FGM in the six-week school summer holidays. As the campaign against FGM increases, the parents of British children are likely to decrease the age of circumcision in order to discourage crime reporting. To avoid legal interference, some British families have also become accustomed to bring FGM in the UK rather than having to travel abroad themselves. Nevertheless, another change in the law now means all public professionals, such as doctors, social workers and teachers, are legally obliged to report any suspicions of FGM to the local authorities. The continuation of FGM in the UK despite legal prohibitions however exemplifies the gravity of this crime.


A recent trial did ensue in 2015 against a doctor who was accused of re-infibulating a patient after childbirth in a way that prosecutors deemed illegal. Dr Dhanuson Dharmasena's case was heard by London's Southwark Crown Court, with his telling to the jurors that he considered FGM to be "an abhorrent practice that does not have any justification in our society". It is interesting to note that Dr Dharmasena in fact was Sri Lankan and a Hindu, information which his lawyer used as part of his defense since FGM "forms no part of his culture". The case, being the first prosecution since FGM was outlawed in the UK, was later acquitted with no charge being brought against Dr Dharmasena.


FGM though is difficult to detect due to the hidden nature of the crime whereby practicing communities enforce a wall of silence when questioned about the practice. Police investigations into FGM subsequently are uncommon, as indicated by the Metropolitan Police's recording of only twenty referrals of FGM crime between the years 2010 and 2013. Nevertheless, it seems that the UK's legal treating of FGM cases is not thorough enough hence providing the space for its continuation.


FGM in Sri Lanka


In stark contrast to the UK, FGM is strictly tabooed in Sri Lanka whereby cases are virtually non-existent. A study by the United Nations Economics and Social Commission for Asia and the Pacific (ESCAP), 1996, did note that FGM has been detected amongst the Dawoodi Bohra sect in Sri Lanka. According to ESCAP, this small sect who migrated from India to Sri Lanka considers FGM as necessary for hygiene and to preserve the virginity of the victim. These findings from ESCAP however may not be entirely valid since they are outdated and data is insufficient about the prevalence of FGM in Sri Lanka.


According to Justice Saleem Marsoof P.C., Sri Lanka's rich cultural heritage is reflected in its complex legal fabric. Sri Lanka's legal system incorporates laws from diverse legal traditions, and so FGM could be liable to punishment under several laws. Section 308 (A) (1) of the Penal Code states that any persons who causes willful assault, ill-treatment, neglect or injury to the health of a person under the age of eighteen "commits the offence of cruelty to children". It refers explicitly to the causing of "injury to… limb or organ of the body or any mental derangement", which are all applicable to FGM. The punishment for this under Section 308 (A) (2) would be imprisonment not exceeding ten years, subject to a fine and possibly ordered to pay compensation to the victim. Another legislation that FGM would be punishable under would be Section 311 that examines the causing of grievous hurt. Section 311 (H) states that any injury which endangers life or (I) which requires the sufferer to be in severe bodily pain would be subject to imprisonment and a fine. Despite the many laws that FGM could come under, a case in Sri Lanka could be problematic as the absence of a specific law would result in prosecutors finding a loophole in the laws cited.


In Sri Lanka, FGM would constitute child abuse. This is a subject that is not new to Sri Lanka, with the National Child Protection Authority receiving nearly 6,500 complaints in 2015. Following the devastating abduction, rape and murder of five-year-old Seya Sandewmini, a reactionary campaign was launched in Sri Lanka, calling for the return of the death penalty for those convicted of child abuse and murder. The support from various parliamentary figures indicates the importance of Sri Lanka's protecting of innocent children. Although it is unlikely that capital punishment would apply to FGM, such examples demonstrate Sri Lanka's zero-tolerance policy towards child abuse.


I would like to take this opportunity to extend my many thanks to Godfrey Cooray Associates for this wonderful internship. The close collaborating with Senior partner of Godfrey Cooray Associates, Mr.Godfrey Cooray, B com (Special) Attorney-at-Law, J.P.Unofficial Magistrate and the panel of lawyers who are Mr. N.L.S Ruwantha Cooray L.L.B (Hons.) Barrister-at-Law Lincoln's Inn) Attorney-at-law, Mr. Roy Fernando, Attorney-at-Law, LLB, Mr.N.J. Rukmal Cooray L.L.B. (Hons.) L.L.M (World Trade Specialist), Mr. Aravinda Fernando LLM (Cardiff UK) Attorney-at-Law, Mrs. Ranusha Wijesinghe L.L.B. (Hons.), Attorney-at-Law Miss. N.M.A.N Ruwanmalee Cooray L.L.B. (Hons.) and Miss Amelka Ranaweera (administrator)B.A. Speciala (Hons.) and L.L.B. reading, provided me with an invaluable insight into Sri Lanka's legal system.


 


 
 
 
 
 
 
 
 
 
 
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