Prosecution of Female Genital Mutilation in the United States
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VOLUME 19, NUMBER 7, 2006 N ATIONAL C ENTER FOR P R OSECUTION OF C HILD A B USE UpdateUpdate American Prosecutors Prosecution of Female Genital Research Mutilation in the United States Institute By Rena Marie Justice1 “You can have scars and also socially it is really strong immigration increases, these numbers grow.11 According because all of your life you know you’ve been violated, to medical research based on the 2000 census, approxi- SAFETY NET: mutilated, abused.” mately 228,000 women and girls are with or at risk for MULTI-DISCIPLINARY — Salimata Knight, Senegalese FGM survivor FGM in the U.S.12 Female Genital Mutilation was put on the radar of INVESTIGATION AND ackground the American public with a U.S. Board of Immigration PROSECUTION OF The practice known as Female Genital Appeals case.13 In 1994, a 17-year-old girl from Togo COMPUTER-FACILITATED Mutilation (FGM), often referred to as fled to the U.S. via Germany, upon being forced into a CHILD SEXUAL “female circumcision” or “female genital cut- polygamous marriage and told she was to undergo Bting” (FGC), is forced on girls from infancy up to mar- mutilation.14 Finally, after 18 months, she was granted EXPLOITATION riage. FGM is known to exist in 28 African countries, asylum based on her “membership in a particular social FEBRUARY 5–9, 2007 as well as places in Asia and the Middle East, and group” under U.S. and international asylum law.15 DREXEL UNIVERSITY increasingly among immigrant groups in Europe, Then on September 30, 1996, Congress enacted the PHILADELPHIA,PA Canada, and the United States. Eighteen African coun- “Federal Prohibition of Female Genital Mutilation Act” tries have prevalence rates of 50% or higher, including under 18 U.S.C.S. §116, which became effective in This intensive 5-day course is Ethiopia, Mali, and Sierra Leone.Worldwide, it is esti- April 1997.This statute prohibits “knowingly circumcis- intended for child sexual exploitation mated that 100-140 million women have been genitally ing, excising, or infibulating the whole or any part” of prosecutors, forensic computer ana- 2 lysts, and investigators. This course cut, and each year another 2 million girls are at risk. the female genitalia on persons under 18 years old, will give hands-on training in investi- There are several forms of FGM and all involve par- excludes “custom or ritual” as a defense,16 and provides gating and presenting electronic evi- tial or total removal of the external female genitalia for an exception for health care.17 To date, there are no dence of computer-facilitated crimes non-therapeutic reasons.2 One of the milder forms has published prosecutions under § 116. against children. been compared to amputation of the penis in males.4 “Clitoridectomy” involves removal of the clitoral hood State Legislation and Local Prosecution CHILDPROOF: and part of or the entire clitoris.“Excision” involves Currently, 18 states have specific statutes relating to the removal of the clitoris and part or all of the labia mino- practice of FGM.18 Most contain minor variations to the ADVANCED TRIAL ra.“Infibulation” involves removal of most or all of the federal statute. For example, the federal statute restricts ADVOCACY FOR CHILD external genitalia, including the clitoris, labia minora, criminal liability to those who perform FGM on girls, ABUSE PROSECUTORS and labia majora, while the sides of the vagina are while some states widen liability to cover those who stitched together so that only a small opening for both “permit”19 or “allow”20 such a procedure to take place. MARCH 18–23, 2007 urine and menstruation remains. Infibulation involves a These statutes would, therefore, impose liability on both National Advocacy Center, healing period of several weeks during which the girl’s guardians and practitioners.A few states have legislated Columbia, South Carolina legs are bound together so the wound is immobilized.5 educational outreach programs, geared toward immi- For details, visit our Web site at FGM can leave girls with a host of complications grants and medical personnel, on physical and mental www.ndaa.org, or contact the National such as severe infections; HIV contraction; inconti- health effects of FGM as well as criminal sanctions.21 Advocacy Center at 803.705.5055. nence; shock; painful sexual intercourse, urination, and In 1994, Minnesota became the first state to amend menstruation; and great difficulty in childbirth. its criminal code.22 The Minnesota statute prohibits Depression and other devastating psychological effects FGM on both women and girls, as does Illinois, Rhode are common.6 Despite these effects, the cultural beliefs Island, and Tennessee.23 The most recent legislation surrounding the practice are strong and include curbing comes from Georgia24 and encompasses the various promiscuity, ensuring marriageability, and initiation of components seen in the states thus far, such as holding girls into womanhood.7 Today, the practice is con- both practitioners and consenting guardians responsi- demned by individual countries, human rights groups, ble25 and prohibiting removal of a girl from the state for and international law as a violation of the human rights the purpose of FGM.26 Prosecutors in states that do not of children.8 have FGM-specific statutes can bring charges using other child abuse, battery, and assault laws. FGM can be UPDATE is published by the American FGM in the United States prosecuted, for instance, where abuse or substantial bod- Prosecutors Research Institute’s FGM occurs in American jurisdictions where members ily injury is defined as “permanent disfigurement”27 or National Center for Prosecution of of immigrant communities reside who traditionally per- “…protracted impairment of physical or emotional Child Abuse. APRI is the research and form the practice. For example, a city with a large health, or protracted loss or impairment of the function development division of the National Somali community will want to note that in Somalia, of any bodily organ….”28 District Attorneys Association. Items there is a 90-98% FGM rate among girls of nearly all Social workers and victim advocates can also assist a may be reprinted if attributed to ethnic groups, with most being infibulated.9 A child can child in a case involving FGM. For example, many APRI’s National Center for Prosecution be cut either in the U.S. or by sending her abroad for African countries now have educational programs, alter- of Child Abuse. Please provide copies the procedure.The last assessment from the Centers for native ceremonies, and laws in use as tools of preven- to NCPCA. Contact us if you have Disease Control and Prevention estimated in 1990 that tion.29 If a girl is sent to her country of origin to be inquiries or article suggestions at 168,000 females in the U.S. were with or at risk for cut, a Victims’Services department can contact an anti- 703.549.4253. FGM, with 48,000 being girls under 18 years old.10 As FGM organization in that country for assistance.This is one way to help prevent a child from being subjected to mutilation else- laborative prospective study in six African countries, 367 THE LANCET 1835 (2006). 7 where when parents are faced with prosecution in the U.S. Parents often subject their daughters to FGM out of a desire to protect them form otherwise severe social ostracism. If the family has permanent residency in the U.S., however, this ostracism is arguably lessened. See U.S. Informational Defenses Sheet, supra note 2. Possible defenses to FGM include custom, consent, medical necessity, and 8 FGM is denounced by the World Health Organization and other United Nations constitutional arguments such as parental rights and freedom of religion. agencies, as well as the Organization of African Unity. See Razor’s Edge, supra note Many statutes expressly exempt, as defenses, both consent of the parents or 3 for a look at other countries’ and the international responses to FGM. 9 Office of the Senior Coordinator for International Women’s Issues, Office of the guardian and any claim to FGM as a custom, ritual, or standard of practice.30 Under Secretary for Global Affairs, U.S. Department of State, Prevalence of the In situations where a parent is unaware of the health risks and criminality of Practice of Female Genital Mutilation (FGM); Laws Prohibiting FGM and Their FGM, however, custom may be considered as a mitigating factor in sentenc- Enforcement; Recommendations on How to Best Work to Eliminate FGM (2001) avail- ing for a first offense. Coupled with mandatory education, this route will able at http://www.state.gov/documents/organization/ maintain the family structure upon prosecution.31 Likewise, a medical neces- 9424.pdf#search=%22Female%20Genital%20Mutilation%3A%20Report%20of% sity exception is common, which limits procedures to health related reasons 20a%20WHO%20Technical%20Working%20Group%22. 10 U.S. Informational Sheet, supra note 2. such as birthing complications, as seen in the federal statute. However, the 11 African immigration has increased dramatically since 1990. See U.S. Census American Academy of Pediatrics (AAP) and the World Health Organization Bureau, Ancestry 2000 (June 2004) available at http://www.census.gov/prod/ formally oppose the practice.32 2004pubs/c2kbr-35.pdf. 12 Constitutional challenges can be rebutted using a strong history of case Brigham and Women’s Hospital’s African Women’s Health Center, Number law and delineating public health and child protection goals. For example, of women, girls with or at risk for female genital cutting on the rise in the United States (2006) available at http://www.brighamandwomens.org/ parental rights have been held by the Supreme Court to be limited when the africanwomenscenter/research.aspx.