Amnesty International wants changes to proposed legislation which exempts criminal sanction in some cases, writes CAROL COULTER
IT IS appropriate that this week sees the committee stage of Criminal Justice (Female Genital Mutilation) Bill 2011 – when it comes before the Oireachtas for its third reading – as today is UN International Day of Zero Tolerance to Female Genital Mutilation (FGM).
Amnesty International, which has been campaigning for the enactment of such legislation, has broadly welcomed the Bill, but seeks the deletion or amendment of one section which exempts from criminal sanction some forms of genital piercing provided it is performed on a woman over the age of 18 and does not cause permanent bodily harm.
It commissioned two counsel opinions on the Bill, from Michael Lynn BL and David Dodd BL, who both took the view the section in question was problematic.
FGM is defined in Section 1 of the proposed Bill as follows: “ ‘Female genital mutilation’ means any act the purpose of which, or the effect of which, is the excision, infibulation or other mutilation of the whole or any part of the labia majora, labia minora, prepuce of the clitoris, clitoris or vagina of a girl or woman.”
An Unesco/World Health Organisation document, Eliminating Female Genital Mutilation, defines four types of FGM. Type one is the partial or total removal of the clitoris; type two its partial or total removal along with that of the labia minora, with or without excision of the labia majora; type three is the narrowing of the vaginal orifice with the creation of a covering seal by cutting and positioning the labia minora and majora; type four covers “all other harmful procedures to the female genitalia for non-medical purposes (for example pricking, piercing, incising, scraping and cauterisation).
While Minister for Health James O’Reilly, has said type four FGM is covered by the Bill, he made it clear it was not the intention of the Bill to outlaw cosmetic surgery for aesthetic purposes or genital piercing. Section 2(2)(d) states a person is not guilty of an offence if “the act concerned is done to a woman who is not less than 18 years of age and there is no resultant permanent bodily harm”.
In his opinion, Dodd stated: “The essential difficulty for Amnesty is that it appears from the wording of Section 2(2)(d) that in fact, if the act concerned is done to a woman who is not less than 18 years of age and there is no resultant permanent bodily harm, then no offence is committed. The question thereof is, does that exemption mean that at least some acts falling within type four are not criminalised.
“Of particular importance is the use of the word ‘permanent’ which is quite a strong word.
“It is my opinion that at least some of the activities described under FGM type four are not prohibited or an offence in light of section 2(2)(d). The exception under section 2(2)(d) is worded such that where the act is carried out on an 18-year-old and does not result in permanent bodily harm, then no offence is committed.
“It is clear from the various descriptions of the various activities which fall within type four that at least in respect of some and in respect of individual cases, although there is bodily harm, there will not be permanent bodily harm. If I am correct in my understanding of the acts and effects of certain of the acts captured by type four, then the Bill does not make it an offence to carry out all acts of FGM, type four. Only acts of FGM type four on a woman over 18 that cause permanent bodily harm are prohibited. If the woman is over 18 and there is no permanent bodily harm, then this is a complete defence, even if the act is one of FGM type four.”
Lynn agreed, stating: “In summary, for the reasons set out below, I am of the view that section 2(2)(d) of the Bill is so wide in its ambit that it threatens to seriously undermine the legislation, and would fail to protect women’s fundamental rights under the Constitution and the European Convention on Human Rights (ECHR).
“The purpose of section 2(2)(d), as stated by the Minister for Health, Dr James Reilly TD, is ‘to protect freedom of choice with regard to cosmetic and other procedures that do not violate women’s human rights’.
“However, the wording of paragraph (d) is far wider than its declared purpose and, not surprisingly, its effect may consequentially be far wider than intended,” he said.
“Section 2(2)(d) also imposes a potentially very difficult evidential burden on the prosecution where a person is charged with an offence under section 2. It will fall on the prosecution, in all cases concerning a victim who is over 18 years of age, to prove beyond reasonable doubt that the act has caused permanent bodily harm. There may be cases where this will be very difficult to prove as a forward-looking definitive requirement.
“I am also of the view that the requirement that the permanent harm be bodily undermines the intention of protecting women’s rights. The implication is that psychological harm is somehow of less, or unimportant, consequence. In a criminal trial, where an accused puts the prosecution on full proof, including the requirement of proving beyond reasonable doubt that the woman has suffered permanent bodily harm, it will be open to an accused to argue that evidence of psychological harm is not relevant and should be excluded.
“Thus, forcible pricking or scraping of the genitalia, against a woman’s will or in the absence of her consent, will not constitute an offence where it does not cause permanent bodily harm, even though it may be deeply and permanently harmful for the woman to bear mentally and, as such, is permanently damaging to her. Again, this does not seem to me to be in accord with the general purpose of the Bill.”
He said this section implied it could be lawful to violate a woman’s body against her will, provided no permanent bodily harm was caused, contrary to her constitutional rights and ECHR.
Both counsel concluded that the section in question should be either redrafted or deleted.