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 “” 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.“” 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 , 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 National District Attorneys Association American Prosecutors Research Institute Non Profit National Center for Prosecution of Child Abuse Organization U.S. Postage 99 Canal Center Plaza, Suite 510 PAID Alexandria,Virginia 22314 Merrifield,VA www.ndaa.org Permit No. 795

The National Center for Prosecution of Child Abuse is a program of the American Prosecutors Research Institute.APRI is the research and development division of the National District Attorneys Association.This publication was prepared under Grant No. 2003-CI-FX-K008 from the Office of Juvenile Justice and Delinquency Prevention, US Department of Justice.This information is offered for educational purposes only and is not legal advice. Points of view in this publication are those of the authors and do not necessarily represent the official position of the US Department of

Justice, NDAA or APRI.

outreach. Female genital mutilation and obstetric outcome: WHO col- WHO outcome: obstetric and mutilation genital Female al, et Banks, Emily 3; note supra

§ 124170 (2005) and 8 U.S.C. § 1374 (2005) for examples of legislating of examples for (2005) 1374 § U.S.C. 8 and (2005) 124170 § C

Razor’s Edge, Razor’s 2; note supra Sheet, Fact 4;WHO note supra Circumcision, Female oubia, T ODE 6

& S & .H C See U.S. the in outreach community refugee and immigrant 35, 35 (1997). 35 35, AF EALTH AL

See www.rainbo.org and www.sautiyetu.org for more information on African on information more for www.sautiyetu.org and www.rainbo.org See 35(4) J P J 35(4) , Nurses American North for Implications Circumcision: N SYCHOSOCIAL URSING 37

ious freedom and FGM. and freedom ious g

Female Stewart, Rosemary 3; note supra Edge, Razor’s 2; note supra Sheet, Fact WHO 5

note 31 will provide case law and a more in depth analysis of reli- of analysis depth in more a and law case provide will 31 note supra Larson, ]. Circumcision Female Toubia, [hereinafter (1994) 712 Medicine of ournal J 36

note 3. note supra , Edge Razor’s

331(11) New England New 331(11) , Issue Health Public A As Circumcision Female Toubia, Nahid Dr. 35 4

note 2. note supra Sheet, Informational S. U. ]. Edge Razor’s [hereinafter default.asp 34

note 31. note supra Larson, also see (1972); 233-234 205, (March 2005), available at http://www.irinnews.org/webspecials/FGM/ at available 2005), (March

Prince v. Massachusetts, 321 U.S. 158, 167 (1944);Wisconsin v.Yoder, 406 U.S 406 v.Yoder, (1944);Wisconsin 167 158, U.S. 321 Massachusetts, v. Prince Culture Harms the Girls-The Globalisation of Female Genital Mutilation Genital Female of Globalisation Girls-The the Harms Culture 33

cgi/content/full/pediatrics%3b102/1/153. Razor’s Edge - The Controversy of Female Genital Mutilation:When Genital Female of Controversy The - Edge Razor’s Affairs, Humanitarian

The AAP’s Policy Statement is available at http://aappolicy.aappublications.org/ at available is Statement Policy AAP’s The

note 2; United Nations Office for the Coordination of Coordination the for Office Nations United 2; note supra Sheet, Fact WHO 32 3

17 W 17 , Freedom? Constitutional Or Abuse 237, 247 (1996). 247 237, . R L. R ’ sheets/fs241/en/ [hereinafter WHO Fact Sheet]. Fact WHO [hereinafter sheets/fs241/en/ EP IGHTS S OMEN

eaeGntlMtlto nTeUie tts Child States: United The In Mutilation Genital Female Note, Larson, Ann Lori (June 2000) available at http://www.who.int/mediacentre/fact- at available 2000) (June Mutilation Genital 31

FGM under felony assault. felony under FGM Female Organization, Health Sheet];World Informational U.S. [hereinafter aq/fgc.htm f

ntesauoylnug.RI G R.I. language. statutory the in § 11-5-2 (c) (3) (2006) describes (2006) (3) (c) 11-5-2 § .L (February 2005) available at http://www.4woman.gov/ at available 2005) (February Cutting Genital Female AWS EN

17 out of 18 states and the federal statute include one or both of these defenses these of both or one include statute federal the and states 18 of out 17

Department of Health and Human Services’ National Women’s Health Center, Health Women’s National Services’ Human and Health of Department S. U. 30 2

examples of alternative ceremonies in Kenya. in ceremonies alternative of examples Association.

ailable at http://www.irinnews.org/webspecials/FGM/45979.asp for http://www.irinnews.org/webspecials/FGM/45979.asp at ailable av APRI is the research and development division of the National District Attorneys District National the of division development and research the is APRI

vstdAgs 4 2006) 24, August (visited identity cultural against legislation modern of study case A Institute’s National Center for Prosecution of Child Abuse in Alexandria,VA. in Abuse Child of Prosecution for Center National Institute’s

Razor’s Edge - The Controversy of Female Genital Mutilation: Genital Female of Controversy The - Edge Razor’s Affairs, Humanitarian

Rena Marie Justice is a Staff Attorney with the American Prosecutors Research Prosecutors American the with Attorney Staff a is Justice Marie Rena 1

news.cfm?ID=672 and United Nations Office for the Coordination of Coordination the for Office Nations United and news.cfm?ID=672

(September 2005) available at http://www.unfpa.org/news/ at available 2005) (September Kenya guise of cultural prerogative, will be considered abuse. considered be will prerogative, cultural of guise

A Safe Haven for Girls Escaping Harm in Harm Escaping Girls for Haven Safe A Fund, Population Nations United See

29 practice of female genital mutilation of children in this country, under the under country, this in children of mutilation genital female of practice

..S N.J. 9:6-8.9 (a) (2005). (a) 9:6-8.9 .§

TAT

28

The message implicit in the existing statutes, however, is clear – the – clear is however, statutes, existing the in implicit message The essary.

ALM GL ch. 265, §13J (a) (2006). (a) §13J 265, ch. GL ALM 37 27

effectively serve these children, and attention to community outreach is nec- is outreach community to attention and children, these serve effectively

A. § 16-5-27 (a) (3) (2005). (3) (a) 16-5-27 § A. G. C. O. 26

A. § 16-5-27 (a) (1) (2) (2005). (2) (1) (a) 16-5-27 § A. G. C. O. sidered when using prosecutorial discretion. Criminalization alone will not will alone Criminalization discretion. prosecutorial using when sidered 25

A. § 16-5-27 (2005). 16-5-27 § A. G. C. O. felony conviction on the immigration status of parents, should also be con- be also should parents, of status immigration the on conviction felony 24

n ..G R.I. and § 11-5-2 (2005). 11-5-2 § .L AWS EN

amily or community. Other issues not addressed here, such as the result of a of result the as such here, addressed not issues Other community. or amily f

5/12-34 (2005),T 5/12-34 . 39-13-110 (2005), 39-13-110 .§ A .C .S .C §720 I §720 ENN NN ODE TAT OMP LL

23

the best course of action in order to protect other female children within the within children female other protect to order in action of course best the

1994 M 1994 also see (2005), (1) 609.2245 .§ .S M ch. 636, art. 9, § 9. § 9, art. 636, ch. .L TAT INN AWS INN 22

American prosecutors must understand what FGM is so they can determine can they so is FGM what understand must prosecutors American enacted).

(no public money actually allotted), and O.R.S. § 431.827 (2005) (never fully (never (2005) 431.827 § O.R.S. and allotted), actually money public (no Conclusion

See C See 210(05,M (2005), 124170 § .C S .H 144.3872 (2005) 144.3872 .§ .S ODE AF EALTH AL TAT INN 21

11 D 11 780 (2005). 780 .§ .C EL and of general applicability and thus do not violate the Free Exercise Clause. Exercise Free the violate not do thus and applicability general of and

20

36

§ 273a (2006). 273a § .C C .P

ODE EN AL 19 and would advance purely secular purposes; in addition, the laws are neutral are laws the addition, in purposes; secular purely advance would and

apri/programs/ncpca/statutes.html.

FGM prohibitions would not entangle government in any specific religion specific any in government entangle not would prohibitions FGM

or a complete list of these statutes, see http://www.ndaa-apri.org/ see statutes, these of list complete a or F

Finally, under the Establishment Clause, Establishment the under Finally, ar more cultural than religious. than cultural more ar f by

Rhode Island,Tennessee,Texas,West Virginia, and Wisconsin. and Virginia, Island,Tennessee,Texas,West Rhode 35

Indigenous African religions genitally mutilate girls.Therefore, the practice is practice the girls.Therefore, mutilate genitally religions African Indigenous ayad inst,Msor,Nvd,NwYr,Nrh aoa Oregon, Dakota, North York, New Nevada, Missouri, Minnesota, Maryland,

hs ttsicueAkna,Clfri,Clrd,Dlwr,Goga Illinois, Georgia, Delaware, Colorado, California, Arkansas, include states These ioiyo olwr fIlm hitaiy uas,and Judaism, Christianity, Islam, of followers of minority A predates Islam. predates

18

34

18 USCS § 116 (b) (2005). (b) 116 § USCS 18

17 court that FGM is not prescribed in the Quran, and it is believed that FGM that believed is it and Quran, the in prescribed not is FGM that court

18 USCS § 116 (c) (2005). (c) 116 § USCS 18

16

a reason for cutting girls. This argument can be overcome by educating the educating by overcome be can argument This girls. cutting for reason a

(1998). C Y W Y H T D RY OU HEN OU EAR HEY O

eligious freedom arguments, FGM proponents often cite Islamic tradition as tradition Islamic cite often proponents FGM arguments, freedom eligious r

& L & K , -B M F also See 368; at Id. YLI A ASINDJA ZIYA AU ASHIR ILLER 15

noti oenetlproet rtc hlrnfo am Regarding harm. from children protect to purpose governmental this into

Id. at 358-359. at Id. 14

In re Fauziya Kasinga, 21 I. & N. Dec. 357 (1996). 357 Dec. N. & I. 21 Kasinga, Fauziya re In Laws prohibiting FGM would clearly fit clearly would FGM prohibiting Laws health or safety of a child is at stake. at is child a of safety or health

13

33

africanwomenscenter/research.aspx.

parental rights have been held by the Supreme Court to be limited when the when limited be to Court Supreme the by held been have rights parental

(2006) available at http://www.brighamandwomens.org/ at available (2006)

law and delineating public health and child protection goals. For example, For goals. protection child and health public delineating and law

of women, girls with or at risk for female genital cutting on the rise in the United States United the in rise the on cutting genital female for risk at or with girls women, of

Constitutional challenges can be rebutted using a strong history of case of history strong a using rebutted be can challenges Constitutional

Brigham and Women’s Hospital’s African Women’s Health Center, Health Women’s African Hospital’s Women’s and Brigham Number 12

formally oppose the practice. the oppose formally 2004pubs/c2kbr-35.pdf.

32

(June 2004) available at http://www.census.gov/prod/ at available 2004) (June 2000 Ancestry Bureau, American Academy of Pediatrics (AAP) and the World Health Organization Health World the and (AAP) Pediatrics of Academy American

African immigration has increased dramatically since 1990. since dramatically increased has immigration African ensus C U.S. See

11 uha itigcmlctos sse ntefdrlsaue oee,the However, statute. federal the in seen as complications, birthing as such

note 2. note supra Sheet, Informational S. U.

10

sity exception is common, which limits procedures to health related reasons related health to procedures limits which common, is exception sity

20a%20WHO%20Technical%20Working%20Group%22.

Likewise, a medical neces- medical a Likewise, maintain the family structure upon prosecution. upon structure family the maintain

9424.pdf#search=%22Female%20Genital%20Mutilation%3A%20Report%20of% 31

ing for a first offense. Coupled with mandatory education, this route will route this education, mandatory with Coupled offense. first a for ing able at http://www.state.gov/documents/organization/ at able

Enforcement; Recommendations on How to Best Work to Eliminate FGM Eliminate to Work Best to How on Recommendations Enforcement; (2001) avail- (2001) FGM, however, custom may be considered as a mitigating factor in sentenc- in factor mitigating a as considered be may custom however, FGM,

Practice of Female Genital Mutilation (FGM); Laws Prohibiting FGM and Their and FGM Prohibiting Laws (FGM); Mutilation Genital Female of Practice

In situations where a parent is unaware of the health risks and criminality of criminality and risks health the of unaware is parent a where situations In

Under Secretary for Global Affairs, U.S. Department of State, of Department U.S. Affairs, Global for Secretary Under Prevalence of the of Prevalence

guardian and any claim to FGM as a custom, ritual, or standard of practice. of standard or ritual, custom, a as FGM to claim any and guardian

30

Office of the Senior Coordinator for International Women’s Issues, Office of the of Office Issues, Women’s International for Coordinator Senior the of Office

9

Many statutes expressly exempt, as defenses, both consent of the parents or parents the of consent both defenses, as exempt, expressly statutes Many 3 for a look at other countries’ and the international responses to FGM. to responses international the and countries’ other at look a for 3

constitutional arguments such as parental rights and freedom of religion. of freedom and rights parental as such arguments constitutional agencies, as well as the Organization of African Unity. African of Organization the as well as agencies, e ao’ de supra Edge, Razor’s See note

FGM is denounced by the World Health Organization and other United Nations United other and Organization Health World the by denounced is FGM sil eesst G nld utm osn,mdclncsiy and necessity, medical consent, custom, include FGM to defenses ossible P 8

note 2. note supra Sheet,

Defenses

the U.S., however, this ostracism is arguably lessened. arguably is ostracism this however, U.S., the Informational S. U. See

form otherwise severe social ostracism. If the family has permanent residency in residency permanent has family the If ostracism. social severe otherwise form

where when parents are faced with prosecution in the U.S. the in prosecution with faced are parents when where

ents often subject their daughters to FGM out of a desire to protect them protect to desire a of out FGM to daughters their subject often ents r Pa 7

one way to help prevent a child from being subjected to mutilation else- mutilation to subjected being from child a prevent help to way one 1835 (2006). 1835 L laborative prospective study in six African countries, African six in study prospective laborative 367 T 367 ANCET HE