“Only One Criminal Conviction in Ten Years” –A Decade of Equality Inertia of the Criminal Justice (Female Genital Mutilation) Act 2012.

This article applies the theories of formal, substantive, and transformative equality to the issue of Female Genital Mutilation in Ireland. In the ten years since the adoption of the Criminal Justice Female Genital Mutilation Act 2012, there has merely been one conviction. In fact, an estimated six thousand women in Ireland have been subjected to this practice and it seems to be more prevalent than ever due to the high rates of immigration from countries where FGM is generally practiced. The article discusses the inadequacy of the current formal equality approach and will apply the theories of substantive and transformative to the issue of FGM in Ireland. The article concludes by discussing the French zero tolerance approach and their three-tier system to FGM and whether the adoption of a similar transformative approach is necessary to establish equality in Ireland.  

In international law, the practice of female genital mutilation has been identified as a serious human rights violation, “denounced by numerous international tribunals, including the UN Commission on Human Rights and the WHO.” [1] This practice has become the subject of widespread and divisive debate in recent years,[2] particularly as international migration has compelled many western countries to confront the practice on a domestic basis for the first time.[3] Female Genital Mutilation (“FGM”), has been distinguished as a “peculiar manifestation of women’s global subordination”,[4] which is mainly carried out as “a rite of passage from childhood to adulthood” against biological females.[5] According to the European Institute for Gender Equality the majority of victims in Europe are minors, averaging an age of fourteen years old.[6]

Unsurprisingly, there is a global anti-FGM consensus and for nearly four decades, UN Agencies and various NGOs have been dedicated to combatting this practice. Consequently, major changes “have been achieved in the last decade in lifting the veil of secrecy from female genital mutilation and developing a strategy to bring about changes”.[7] Despite this progress, however, Mullally and Ni Mhuirthile rightly note that there remains a shortcoming in knowledge regarding the prevalence of the practice, its health implications and the potential avenues by which the issue may be addressed.

In Ireland, similarly to other western countries, the practice has become ever more prevalent in recent times, prompting the legislature to enact the Criminal Justice (Female Genital Mutilation) Act 2012 (“2012 Act”). Under the legislation, FGM is defined as “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.”[8] The 2012 Act prohibits such acts, and additionally makes it a criminal offence to remove a girl from the State to mutilate her genitals.[9]  The maximum penalty provided under the legislation is a fine of up to €10,000, fourteen years’ imprisonment or both.[10]

Beyond serving the vital purpose of criminalising FGM as a practice, the Oireachtas Committee equally noted during the drafting stages of the legislation that the 2012 Act further provides a fundamental yet critical acknowledgement of the fact that the problem exists.[11] Discouragingly, however, criminal convictions effected pursuant to the legislation prove minimal. The year 2020 observed the first and only conviction of FGM in Ireland in the seminal case of DPP v HM.[12] Noting the significance of the jury’s decision, the presiding Ms. Justice Sheahan remarked that the case “represents the first of its kind”, and expressed her hope that the ruling would “send a strong message that FGM is not and will not be tolerated.”[13]

Indeed, despite both the legislation and the important precedent created by DPP v HM, the rate of FGM continues to increase in Ireland as the 2015 European Institute for Gender Equality Report suggests that the number of girls at risk of FGM in Ireland is between 158 (low-risk scenario) and 1,632 (high-risk scenario).[14] Furthermore, in 2017 the activist group Akidwa estimated that 6000 women and girls have been subjected to the practice in Ireland.[15] Therefore, it is evident from the dismally low rate of conviction that the adoption of formal equality enacted by the 2012 Act is wholly inadequate in combating FGM. Moreover, it is purported that victims are ultimately in a worse position than prior to the enactment of the 2012 Act, as the legislation fails to recognize diversity of cultural and religious traditions.

It is argued that the 2012 Act merely gives the illusion of equality, as in reality it has created greater inequality and discrimination for victims and has forced the issue of FGM further underground. This argument is supported by a survey carried out by Akidwa, in which it was concluded that “the enactment of criminal legislation has stigmatised the issue and created a fear of conviction, thus this has led to further inequality for girls and women facing FGM in Ireland.”[16]Due to the inertia of the legislation in protecting victims, it is apparent that the enactment of formal equality is merely the first step in implementing national interventions to eradicate FGM.

Corroborating this further, it was duly declared that “laws alone are not effective” by Dr. Brundtland, the former Director General of the World Health Organisation, at the first international conference on FGM in 1998.[17] Decades on, this declaration still reigns true in Ireland, thus highlighting that the adoption of  a substantive equality approach to FGM in Ireland is crucial. This approach would recognise the cultural and social differences between women and girls of Irish heritage versus those who are at risk of or who have been subjected to the practice, and could be achieved by removing barriers to reporting FGM and receiving supports in Ireland. It is argued that although the Irish Family Planning Association (“IFPA”) does provide psychological and medical supports to affected women and girls, [18] this merely meets the standard of formal equality and perhaps the minimum standard of substantive equality.

 In order to adopt a more substantive approach, it would be necessary to provide IFPA FGM clinics nationwide - not merely in the Dublin City Centre area - along with providing for 24-hour confidential reporting and flexible clinic hours in emergency cases, beyond the current Monday to Friday operational basis. These adjustments would guarantee that victims of FGM in Ireland have equality of opportunity in reporting violations and receiving supports. Despite these advantages, however, a substantive approach to combatting the practice does not guarantee an outcome of equality for FGM victims. In order for this to occur, a transformative approach should be adopted.

In adopting transformative equality to FGM in Ireland, this article shall consider Fredman’s four factors of transformative equality, and will comparatively consider the transformative approach adopted by France and whether such adjustments could be replicated in Ireland. [19] France has a zero-tolerance approach to FGM, a method which has seen over a hundred perpetrators be convicted in an array of high-profile cases over the last thirty years.[20] FGM is deemed as a serious criminal offence under the Code Penal since 1983, attaching a punishment of ten years’ imprisonment, which rises to twenty years for committing FGM on a minor under the age of fifteen.[21] However, unlike Ireland, France has no specific laws against FGM. Rather, the practice is prosecuted under existing laws against grievous bodily harm and violence against children.[22]

Particularly due to an explosion in the media and ensuing public outrage in the late 1970s, it was during this period that the French state began to prosecute FGM.[23] Subsequently, France has adopted a three-tiered approach to combating FGM which involves education, publicity, and severe punishment. The former Minister of Justice Rachid Diali surmised France’s zero-tolerance stance in stating that, “mutilation has no foundation in any religion, philosophy, culture or sociology. It is a serious and violent abuse of the female. It cannot be justified in any way. Female Genital Mutilation is a serious crime.”[24]

Firstly, in adopting a redistributive transformative equality approach to FGM, the focus would be on breaking the cycle of disadvantage imposed upon victims of the practice in Ireland, namely through systems and structures. This could be achieved through the improvement of the Irish Family Planning Centres as discussed above under the substantive approach. However, this would go further by adopting an approach similar to that of France in regard to education and training for education providers and medical professionals. Equally, this approach may also encompass systematic examination for signs of FGM conducted by health checks carried out in schools in at risk areas, although it is acknowledged that such system must be administered with the utmost sensitivity.[25]

Secondly, adopting a recognition approach of transformative equality would centre on recognizing stigma and promoting dignity and respect of victims, which could be accomplished by adopting similar provisions to those of France. This would include the education and anti–FGM training of Irish doctors, hospital staff and teachers. [26] Thirdly, a transformative approach would highlight the need to accommodate differences - particularly religious and social traditions - which could be achieved through the education of medical staff and educators, particularly in areas in Ireland where FGM is prevalent as has been adopted in France.[27] It would also aid in collectively strengthening the capacities of grassroot organizations such as Akidwa.

Finally, the participative transformative equality approach would aim to promote participation and social inclusion of victims in Irish society. This could be achieved by publicising FGM, as was done in France in the late 1970s and early 1980s.[28] Koudedia Keita, the Malian born President of a French pressure group against FGM by the name of “Corps en Marche”, has noted the major role publicity has played in eradicating FGM in France. She expressed that “younger generations of French based mothers from Mali, the Ivory Coast and other countries where this has traditionally been practiced no longer accept FGM as a norm.”[29] Furthermore, France’s success was demonstrated by an analysis conducted by the French Department of Health - in the early 1980s, there was an 80% likelihood that the daughter of an individual who was subject to FGM would also fall victim to the practice; however, when the same analysis was conducted in 2007, this likelihood had been drastically reduced to 11%.[30]

Although the French approach has been overwhelmingly proactive and successful in providing for equality, it does have some issues: namely, an apparent failure to prevent the deep-rooted attitudes towards women which produce practices such as FGM. This has subsequently resulted in many French victims travelling outside French jurisdiction to have the FGM practice performed.[31] Therefore, perhaps Amnesty International’s campaign “END FGM” for a Europe-wide approach would be the preferable to prevent such travelling.[32] Christine Laudes, the President of Amnesty International’s Anti-FGM strategy, has suggested that in order to prevent travel to jurisdictions where FGM is carried out more freely, the French authorities “need to work with communities affected to change attitudes, not to drive the problem further underground”.[33]

 In addition, the European Commission published a comprehensive set of guidelines recommending a European Union-wide approach against FGM.[34] These guidelines propose not only an EU-wide strict prosecution of the crime, but they also adopt a transformative equality approach to tackling the issue, by placing emphasis upon educational outreach to affected immigrant communities and the training of educational and medical staff. [35] In addition, many campaigners have criticized France’s strict criminality-based approach as creating further victims, believing that it is not in a child’s best interests to send their parents, who are most often the perpetrators, to prison. Krivenko has remarked that this in turn “creates more issues for the child by possibly rendering them parentless.”[36]

In conclusion, it is evident that drastic measures must be taken to ensure FGM victims’ equality is protected in Ireland. In view of the aforementioned single Irish conviction, coupled with the startling statistics concerning the growing rate of FGM in Ireland, it is apparent that our current formal equality approach as adopted through the 2012 Act is wholly inadequate. The measures adopted through the substantive equality approach discussed in this article would certainly aid the ongoing situation. However, a transformative equality approach similar to that of the French three-tiered approach of education, publicity and severe criminal punishment would prove more preferable to achieve meaningful equality. However, in adopting a transformative approach in Ireland, we can learn from the errors of France. Therefore, in order to prevent travel for FGM to other jurisdictions, the adoption of a Europe-wide approach such as that proposed by the European Commission or Amnesty International could further aid in the promotion of transformative equality for FGM, thereby preserving the dignity of women and girls in Ireland and beyond.

[1] Patricia Broussard, ‘The Incorporation of Female Genital Mutilation to the West: The Cruellest Cut of All’ (2010) 44(7) Cambridge University Press 789, 789.

[2] ibid, 789.

[3] Eilish Mitchell, ‘Dying to Be a Woman: The Harsh Reality of Female Genital Mutilation’ (LLM in International Criminal Law, Thesis, National University of Ireland, Galway, 2011) 52.

[4] Siobhan O’Brien. "'I Have a Story to Tell': Researching Migrant Women's Experiences of Female Genital Mutilation and Gender-based Violence in Ireland and Europe." (2017) 19(3) Social Work & Social Sciences Review 134, 134.

[5] ibid, 136.

[6] European Institute for Gender Equality, Female Genital Mutilation in the European Union (EIGE 2012).

[7] Siobhán Mullally and Tanya Ni Mhuirthile, ‘Reforming Laws on Female Genital Mutilation in Ireland: Responding to Gaps in Protection’ (2017) 32 Dublin University Law Journal 243, 272.

[8] Criminal Justice (Female Genital Mutilation) Act 2012, s1.

[9] ibid, s3.

[10] 2012 Act (n 13), s11.

[11] Dáil Deb 13 May 2020, 339, Written Answers.

[12] DPP v HM [2019] IECC 147.

[13] ibid.

[14] Current Situation of Female Genital Mutilation in Ireland, (2015) Luxembourg: Publications Office of the European Union.

[15] Akidwa, ‘Female Genital Mutilation: Towards a National Action Plan to Combat FGM 2016-2019’ <https://akidwa.ie/female-genital-mutilation/> accessed 13 July 2023.

[16] ibid.

[17] Rebecca Cook, Bernard Dickens and Mahmoud Fathalla, ‘Female Genital Cutting (mutilation/circumcision): Ethical and Legal Dimensions’ (2002) 79(3) International Journal of Gynecology and Obstetrics 281.

[18] Irish Family Planning Association, ‘FGM Treatment Service Leaflet’ <https://www.ifpa.ie/fgm-treatment-service-leaflet/> accessed 16 July 2023.

[19] Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14(3) International Journal of Constitutional Law 712.

[20] Renée Kool and Sohail Wahedi, ‘Criminal Enforcement in the Area of Female Genital Mutilation in France, England and the Netherlands: A Comparative Law Perspective’ (2014) 3(1) International Law Research 17, 17.

[21] ibid, 17.

[22] Kool (n 25), 17.

[23] Kool (n 25), 29.

[24] Kool (n 25), 29.

[25] Kool (n 25), 29.

[26] Kool (n 25), 29.

[27] Kool (n 25), 29.

[28] Kool (n 25), 29.

[29] Armelle Andro and Marie Lesclingand, ‘Female Genital Mutilation. Overview and Current Knowledge’ (2016) 71(2) Population (France) 224, 21.

[30] ibid, 249.

[31] European Institute for Gender Equality, ‘Female genital mutilation: how many girls are at risk in France?’ (Publications Office of European Union, 2018) <https://data.europa.eu/doi/10.2839/342259> accessed 16 July 2023.

[32] Amnesty International Ireland, ‘Amnesty International condemns FGM justification’ <https://www.amnesty.ie/amnesty-international-condemns-attempts-justify-female-genital-mutilation-fgm/> accessed 16 July 2023.

[33] ibid.

[34] European Commission, ‘Gender Equality’ <https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/gender-equality_en> accessed 16 July 2023.

[35] ibid.

[36] Yahyaoui Krivenko, ‘Rethinking Human Rights and Culture Through Female Genital Surgeries’ (2015) 37(1) Human Rights Quarterly 107, 36.