This Act criminalized female genital mutilation and related offences in Ireland. Section 1 defines female genital mutilation as any act the purpose or 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. Section 2 makes this an offence, but lays down certain statutory defences, including where the act committed is a surgical operation performed by a medical practitioner (or in some cases a midwife) where it is necessary for the protection of physical or mental health, or where it is performed in connection with labour or birth. Section 2(3) also explicitly provides that consent is not a defence. Section 3 also makes it an offence to remove or attempt to remove a girl or woman from Ireland where one of the purposes of removal is to subject her to an act of female genital mutilation. Persons convicted of offences under the Act are liable to a term of imprisonment of up to 12 months on summary conviction or to a class A fine, or to up to 14 years’ imprisonment on conviction on indictment.
Women and Justice: Topics: Female genital mutilation or female genital cutting, Harmful traditional practices
Legislation
Criminal Justice (Female Genital Mutilation) Act 2012 (2012)
Law No. 10 of the Year 2021 (2021)
Law No. 10 of the Year 2021 amends the Penal Code to provide increased punishments for anyone who engages in female genital mutilation ("FGM"), which punishments range from a minimum of five years to a maximum of 20 years and depend on two factors: (a) whether the perpetrator is a licensed medical practitioner and (b) the extent of the harm inflicted on the woman or girl. Individuals who request or encourage FGM are also subject to imprisonment under this law.
Article 11 amended the French Criminal Code to recognize that a spouse can commit rape against their spouse. It also states that the presumption that a spouse has consent to sexual acts within the matrimonial relationship only continues until proof to the contrary. Furthermore, in sentencing a person convicted of rape, the fact that the victim is the accused’s spouse does not affect the application of rape sentencing guidelines. Article 14 amended the French Criminal Code to allow for the prosecution of female genital mutilation committed abroad on a minor victim legally residing in France. This paralleled a legal shift making female genital mutilation an exception to medical confidentiality that must be reported to the police, social services, and administrative services.
Article 11 modifie le Code Pénal Français, pour reconnaître qu’un conjoint peut commettre le viol contre leur conjoint. L’article conclut que le fait qu’un conjoint a consenti à des actes sexuels durant leur relation matrimoniale ne continue que jusqu’à preuve du contraire. Par ailleurs, durant la période d’imposition de peine, le fait que la victime de viol est le conjoint de l’accusé n’affecte pas le besoin de suivre les directives légales d’années de peines pour viol. Article 14 a modifié le Code Pénal Français pour permettre la poursuite en justice de tout acte de mutilations sexuelles féminines fait à l’étranger sur une victime mineur résident habituellement sur le territoire Français. Cette décision est prise en parallèle à d’autres modifications de lois, faisant que tout acte de mutilations sexuelles féminines est une exception au privilège médical, et qu’il faut informer la police, les services sociaux, et administratifs.
Section 85(1) no. 2a provides that a genital mutilation constitutes an assault with severe permanent consequences. While it can be possible to consent to a personal injury, Section 90(3) states that it is not possible for a person to consent to genital mutilation. Furthermore, pursuant to Section 64(1) no. 4a the criminal liability does not require that Austria be the location of the crime as long as, e.g., the perpetrator or the victim is Austrian.
Nach § 85 Abs. 1 Ziff. 2a ist die Genitalverstümmelung eine Körperverletzung mit schweren Dauerfolgen. Zwar kann grundsätzlich in eine Körperverletzung eingewilligt werden, allerdings macht § 90 Abs. 3 klar, dass das nicht für den Fall einer Genitalverstümmelung gilt. Außerdem ist nennenswert, dass § 64 Abs. 1 Ziff. 4a klar macht, dass die Strafbarkeit nicht voraussetzt, dass Österreich der Tatort war, solange z.B. das Opfer oder der Täter österreichische Staatsbürger sind.
Article 160(b) establishes that perpetrators of female genital mutilation are subject to sentences of 2-10 years in prison.
Artigo 160(b) estabelece que os autores de mutilação genital feminine estão sujeitos a sentenças de 2-10 anos de prisão.
Female genital mutilation is punishable as a form of child abuse under sections 300-304, 307, and 308 of the Criminal Code. Such abuse carries a maximum sentence of 12 years or a maximum fine of 76,000 euros. Parents who perform the circumcision themselves on their own daughter or on a child over whom they exercise parental authority or whom they care for or raise, may serve a one-third increase in their prison sentence, per section 304(1). Parents and custodians are also punishable if they allow and/or support the procedure to be performed, order it, pay for it, provide the means for it and/or assist the circumciser during the circumcision, as these acts are considered soliciting, abetting or co-perpetration under Dutch criminal law. Though FGM is not specifically mentioned in these sections, the General Provisions Section 5(3°) explicitly includes FGM in these Title XX-XXI provisions. (Unofficial English translation of the Criminal Code as of 2012 available here: http://www.ejtn.eu/PageFiles/6533/2014%20seminars/Omsenie/WetboekvanStra...)
Ghana Criminal Code Part II, Chapter 3 (Female Circumcision) (2003 Amendment Act (FGM)) (2003)
The Criminal Code (Amendment) Act introduced Section 69A, which prohibits female genital mutilation. In 2007, Parliament amended 69A, and expanded the definition of liability to include anyone who “carries out female genital mutilation and excises, infibulates or otherwise mutilates the whole or any part of the labia minora, labia majora and the clitoris of another person” and specified that liability on summary conviction mandated imprisonment for a minimum of five years and a maximum of 10 years.
Section 268(1) provides that everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. Section 268(3) clarifies that “wound” or “maim” includes to excise, infibulate, or mutilate, in whole or in part, the labia majora, labia minora, or clitoris of a person except where it is performed by a qualified medical practitioner for the benefit of the physical health of the person or the person is over 18 years of age and there is no resulting bodily harm. No consent to excise, infibulate, or mutilate, in whole or in part, the labia majora, labia minora, or clitoris of a person is otherwise possible. Aggravated assault is punishable as an indictable offence and punishment is a prison sentence not exceeding 14 years.
Charter of Human Rights and Responsibilities Act (Victoria) (2006)
The Charter aims to protect and promote the human rights set out in Part 2, including property rights and freedom from forced work (slavery), as well as the right to enjoy those human rights without discrimination. With respect to any proposed new law, the Victorian Parliament must prepare a “statement of compatibility,” which must examine the proposed law’s compatibility (or incompatibility) with the human rights protected in the Charter. While this statement has no effect on the validity of any law, it furthers the purpose of the Charter in promoting human rights. Further, under section 32 of the Charter, all statutory provisions must be interpreted in a way that is compatible with human rights (to the extent it is possible to do so consistently with their purpose). The Charter also allows the Victorian Equal Opportunity and Human Rights Commission to intervene in any court or tribunal proceeding in relation to the Charter.
An Act to consolidate the Law Relating to Crimes and Criminal Offenders (Victoria) (2008)
The Crimes Act is the principal Victorian criminal legislation setting out a range of criminal offences and penalties. In relation to gender justice, the Act prohibits sexual violence and rape, stalking, sexual assault, rape, abortion (as amended by the Abortion Law Reform Act 2008) and female genital mutilation. The Act also prohibits attempts and conspiracies to commit these offenses, and sets forth applicable procedures and defenses. The Act previously contained a defense of “defensive homicide,” which was intended to, among other things, assist women who killed an abusive partner in self-defense. However, this defense was abolished in November 2014 on the basis that it was not operating as intended. The penalties for violations of the Act vary, and the principles in the Sentencing Act 1991 apply to sentencing in all courts except the Children’s Court.
Spain criminalizes certain behaviors contrary to gender justice, such as the practicing of abortions without the patient’s consent, and female genital mutilation. In particular, Article 149 criminalizes female genital mutilation, establishing a penalty of six to twelve years in prison. Article 173 criminalizes the habitual physical or psychological violence exercised against a spouse or partner, punished with a penalty of six months to three years of prison (regardless of the penalty for any specific acts of violence that may have occurred). Article 314 criminalizes employment discrimination because of someone’s gender, ideologies, religion, ethnicity, sexual orientation, family circumstances, etc. The penalty for employment discrimination is six months to two years of prison or a pecuniary fine of 12 - 24 months. Article 510 criminalizes the incitement of violence, hate, or discrimination against any person or group for the aforementioned reasons. The penalty is one to four years of prison and a pecuniary fine of six to twelve months. Article 511 criminalizes denying a public service because of the aforementioned reasons, to someone legally entitled to receive said service. The penalty is six months to two years of prison and a pecuniary fine of 12 to 24 months, as well as being barred from public office for one to three years. Article 144 criminalizes the practicing of abortions without woman’s consent. The penalty is four to eight years of prison and being barred from any job in the medical profession.
España penaliza ciertas conductas contrarias a la justicia de género, como la práctica de abortos sin el consentimiento de la paciente y la mutilación genital femenina. En particular, el Artículo 149 penaliza la mutilación genital femenina, estableciendo una pena de seis a doce años de prisión. El Artículo 173 penaliza la violencia física o psicológica habitual ejercida contra un cónyuge o pareja, castigada con una pena de seis meses a tres años de prisión (independientemente de la pena por cualquier acto específico de violencia que pueda haber ocurrido). El Artículo 314 penaliza la discriminación laboral debido al género, las ideologías, la religión, el origen étnico, la orientación sexual, las circunstancias familiares, etc. de alguien. La pena por discriminación laboral es de seis meses a dos años de prisión o una multa pecuniaria de 12 a 24 meses. El Artículo 510 penaliza la incitación a la violencia, el odio o la discriminación contra cualquier persona o grupo por los motivos antes mencionados. La pena es de uno a cuatro años de prisión y una multa pecuniaria de seis a doce meses. El Artículo 511 penaliza la denegación de un servicio público por las razones antes mencionadas, a alguien legalmente autorizado para recibir dicho servicio. La pena es de seis meses a dos años de prisión y una multa pecuniaria de 12 a 24 meses, además de ser excluido de un cargo público de uno a tres años. El Artículo 144 penaliza la práctica de abortos sin el consentimiento de la mujer. La pena es de cuatro a ocho años de prisión y se le prohibirá cualquier trabajo en la profesión médica.
The Criminal Code defines and criminalizes domestic violence under Article 194, which is the main legislation providing for domestic violence prosecution. Domestic violence is defined as the “use of violence, threat of attacks against life or body, insolent or ruthless behaviour [that] endangers the tranquility, physical integrity or mental condition of a member of his family.” The definition of “family member” does not include ex-spouses or unmarried partners who do not live together or have children. The penalties for domestic violence under the Criminal Code are fines or imprisonment for up to 15 years. In 2017, new crimes for stalking (Art. 138a) and sexual harassment (Art. 182a) were added to the Criminal Code. Additionally, the minimum statutory sentence for rape was increased from three years to five years. In 2019, amendments to the Criminal code introduced life imprisonment without conditional release for those who commit crimes of rape or murder of children, pregnant women, or disabled persons. New crimes for stalking, sexual harassment, female genital mutilation, and forced marriage were also introduced. (Unofficial English translation available here.)
Kodi Penal i Republikës së Kosovës (Penal Code of the Republic of Kosovo) (2018)
Pursuant to Article 143, one who commits rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, knowing such offense is part of a widespread or systematic attack directed against any civilian population, shall be punished by imprisonment of at least 15 years for committing crimes against humanity. Article 145 states that one who commits rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave violation of the Geneva Conventions, shall be punished by imprisonment of not less than 10 years for the commission of war crimes. Similarly, Article 147 punishes the same war crimes as Article 145 in conflicts of a non-international character. Articles 163 – 166 criminalize human trafficking, slavery, and related offenses including smuggling migrants and destroying victims’ identification papers. Penalties for violations of these articles include fines and imprisonment from between 1 – 12 years. Articles 179-180 prohibit sterilization without consent and female genital mutilation. The Criminal Code also punishes sexual violence including rape (Article 227), sexual harassment (Article 183), sexual assault (Article 228), and sex trafficking and forced prostitution (Articles 229, 234). Finally, Articles 239 and 248 contain gender-neutral bans on forced and early marriage and domestic violence, respectively. (Unofficial English version available here.)
The Female Genital Mutilation Act of 2003 restated and amended the law prohibiting female genital mutilation, and further prohibits assistance in mutilation, failing to protect a girl from risk of mutilation, and assistance in transporting girls overseas for the purpose of female genital mutilation. It establishes a maximum penalty of 14 years imprisonment.
Criminal Code Act (Tasmania) (1924)
The Criminal Code Act 1924 prohibits forced and unauthorized abortions and assaults on pregnant women, sexual violence, stalking, domestic violence, and female genital mutilation. The termination of a pregnancy by a person other than a medical practitioner or the pregnant woman herself is a crime at any stage of the pregnancy. Termination carried out without the pregnant woman’s consent is a crime if it is performed intentionally or recklessly, regardless if any other harm is inflicted on the woman. Any person who unlawfully assaults a woman, knowing that woman is pregnant, is guilty of assault on pregnant woman under section 184A of the Act. Any person who has sexual intercourse with another person without that person's consent is guilty of rape under section 185 of the Act. “Sexual intercourse” is defined as the penetration of a person’s vagina, genitalia, anus or mouth by a penis, the penetration of a person’s vagina, genitalia or anus by another body part or object, or the continuation of either act of penetration. “Consent” means free agreement, and does not include, among other things, if a person does not say or do anything to communicate consent. Additionally, it is a crime to have sexual intercourse with a person under the age of 17 according to section 124 of the Act. A person is guilty of stalking if they, among other things, follow, surveille, threaten, direct abusive acts towards, communicate, send or publish offensive material, or contact another person or a third person, with intent to cause the another person physical or mental harm, including self-harm or extreme humiliation or to be apprehensive or fearful under section 192 of the Act. Under section 170A of the Act, a person commits persistent family violence in relation to another person with whom the person is, or has been, in a family relationship is guilty of persistent family violence when the accused has committed unlawful family violence on at least three occasions. Family violence includes, among other things, acts of physical, psychological and economic abuse, with the specific definitions set out in the Family Violence Act 2004. Under section 178A, any person who performs female genital mutilation on another person is guilty of a crime, regardless of custodial consent. Removing or making arrangements to remove a child from Tasmania with the intention of having female genital mutilation performed on the child is also a crime.
As stated in the accompanying Explanatory Memorandum, the Violence Against Persons (Prohibition) Act aims to “prohibit[] all forms of violence against persons in private and public life, and provide[] maximum protection and effective remedies for victims and punishment of offenders.” The Act provides general protections against offenses including infliction of physical injury, coercion, offensive conduct, willfully placing a person in fear of physical injury, willfully making false statements against another person, damage to property with intent to cause distress, and deprivation of personal liberty. The Act also provides protections against offenses that affect women disproportionately, including a prohibition of female genital mutilation; forceful ejection from home; forced financial dependence or economic abuse; forced isolation; emotional, verbal and psychological abuse; harmful widowhood practices; and spousal battery, among others. Notably, the Act defines the offense of rape in Section 1(1) without an exception for marital rape, which had not traditionally been recognized as an offense (note that the Penal Code Act of 1960 does include an exception for marital rape). The Act provides a procedure for injured parties to apply for a protection order and empowers the High Court of the Federal Capital Territory with jurisdiction to hear and grant applications brought under the Act. As stated in Section 47, the Act is a product of federal legislation enacted in regard to criminal law, a residual matter over which the states have exclusive legislative power pursuant to the Nigerian Constitution. Thus, the VAPP Act applies only to the Federal Capital Territory and is not binding law in a state unless adopted by that state.
Article 66a provides that a foreign national shall be expelled from Switzerland for a period of five to 15 years if they are convicted of, among other things, female genital mutilation (Penal Code Art. 124, para. 1), forced marriage or forced registered partnership (Penal Code Art. 181a), trafficking in human beings (Penal Art. 182), sexual acts with children (Penal Code Art. 187, para. 1), sexual coercion (Art. 189), rape (Art. 190), sexual acts with persons incapable of judgement or resistance (Art. 191), encouraging prostitution (Art. 195), aggravated pornography (Art. 197, para. 4, second sentence – pornography containing genuine sexual acts with minors), genocide (Art. 264), crimes against humanity (Art. 264a), serious violations of the Geneva Convention of 1949 (Art. 264c), and other war crimes (Art. 264d and 264h). Unofficial English translation available here.
Straftwek van België/Code pénal de Belgique (Criminal Code of Belgium)
Article 409 of the Belgian Criminal Code criminalizes (i) the execution or facilitation of female genital mutilation which is penalized with imprisonment, ranging from three to five years, and (ii) the attempt, incitement, advertising or the spreading of advertisements, which is penalized with imprisonment ranging from eight days to one year. The Article includes several aggravating circumstances, which will increase the severity of the punishment.
Promotion of Equality and Prevention of Unfair Discrimination Act (2000)
The purpose of the Promotion of Equality and Prevention of Unfair Discrimination Act is to give effect to section 9 of the Constitution of the Republic of South Africa, read in conjunction with item 23(1) of its sixth schedule. The effect of this is to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters connected therewith. Section 8 expands on the provisions of Section 9 by setting out, without limitation, the following specific examples of such prohibited discrimination: (a) gender-based violence; (b) female genital mutilation; (c) the system of preventing women from inheriting family property; (d) any practice, including traditional, customary or religious practice, which impairs the dignity of women and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child; (e) any policy or conduct that unfairly limits access of women to land rights, finance, and other resources; (f) discrimination on the ground of pregnancy; (g) limiting women’s access to social services or benefits, such as health education and social security; (h) the denial of access to opportunities, including access to services or contractual opportunities for rendering services for consideration, or failing to take steps to reasonably accommodate the needs of such persons; and (i) systemic inequality of access to opportunities by women as a result of the sexual division of labor. The Act further regulates which party will bear the burden of proof in discrimination cases and further sets out which factors should be taken into account in determining whether discrimination is fair or unfair.
Wet op die Bevordering van Gelykheid en die Voorkoming van Onbillike Diskriminasie (2000)
Diskriminasie op werksgeleenthede, verminking van vroulike geslagsorgane of sny van vroulike geslagsdele, geslagsdiskriminasie, geslagsgebaseerde geweld in die algemeen, skadelike tradisionele praktyke, regte op erf en erfenis, seksuele geweld en verkragting
Die doel van die Wet op die Bevordering van Gelykheid en die Voorkoming van Onbillike Diskriminasie is om uitvoering te gee aan artikel 9 van die Grondwet van die Republiek van Suid Afrika, in samewerking met artikel 23(1) van die Grondwet se sesde skedule. Die effek hiervan is om onbillike diskriminasie en teistering te voorkom en te verbied; om gelykheid te bevorder en onbillike diskriminasie uit te skakel; om haat-spraak te voorkom en te verbied; en om voorsiening te maak vir aangeleenthede wat daarmee verband hou. Artikel 8 brei die bepalings van Artikel 9 uit, sonder beperking, deur die volgende spesifieke voorbeelde van sodanige verbode diskriminasie uiteen te sit: (a) geslagsbaseerde geweld; (b) geslagtelike verminking van vroulike geslag; (c) die stelsel wat voorkoom dat vrouens familie-eiendom erf; (d) enige praktyk, met inbegrip van tradisionele, gebruiklike of godsdienstige praktyk, wat die waardigheid van vrouens belemmer en die gelykheid tussen vrouens en mans ondermyn, insluitend die ondermyning van die waardigheid en welstand van die meisie-kind; (e) enige beleid of optrede wat vrouens se toegang to grondreg, finansies en ander hulpbronne beperk; (f) diskriminasie op grond van swangerskap; (g) beperking van vrouens se toegang tot maatskaplike dienste of voordele soos gesondheidsopvoeding en sosiale sekuriteit; (h) die weierig van toegang tot geleenthede, insluitende toegang tot dienste of kontraktuele geleenthede vir die lewering van dienste vir oorweging, of versuim om stappe te neem om die behoeftes van sulke persone redelik te voorsien; en (i) sistematies ongelykheid van toegang tot geleenthede van vroue as gevolg van die seksuele verdeling van arbeid. Die Wet reguleer verder watter party die bewyslas in diskriminasiesake sal dra en lê verder uit watter faktore in ag geneem moet word by die bepaling of die diskriminasie billik of onbillik is.
Codice Penal (1930)
The Italian Penal Code prohibits domestic violence (art. 572), female genital mutilation (art. 583), personal injury aggravated by permanent deformation or scarring of the face (art. 583 quinquies), harassment (art. 612 bis), the crime of illicit diffusion of sexually explicit images or videos without the consent of the persons represented (so-called revenge porn) (art. 612 ter). Punishable crimes against a person's freedom also include slavery and forced prostitution (art. 600), human trafficking (art. 601), sexual acts coerced through violence, threats, or abuse of authority (art. 609 bis) and group sexual assault (art. 609 octies). Sexual acts with a minor of 14 year old is always a crime (art. 609 quarter). Aggravating factors in sexual violence are: when the perpetrator is a relative, a parent or a guardian, when the sexual act is committed against a pregnant woman, when the victim is under 18 years old, and when the perpetrator uses a weapon (art. 609 ter). Sexual acts with a minor are not punishable when (1) both parties are minors, (2) the minor is at least 13 years old, and (3) the age difference between the two is no more than four years (art. 609 quater). Moreover, the Italian Penal Code prohibits the crime of coercion or induction into marriage (art. 558 bis) and the violation of the order for removal from the family home and of the prohibition to approach the places frequented by the victim (art. 387 bis). Finally, the Italian Penal Code prohibits crimes against pregnancy. In particular, under article 593-ter, anyone who causes the termination of a pregnancy without the woman’s consent shall be punished by imprisonment from four to eight years. Consent that is extorted by violence or threat, or that is obtained by deceit, shall be considered as not having been given. Aggravating factors in crimes against pregnancy include a woman under 18 years of age.
Article 144-A bans female genital mutilation and imposes a prison sentence of 2-10 years. Article 145 imposes greater penalties for offenses against physical integrity and female genital mutilation if the crime is committed, among other special circumstances, against the current or former spouse or a person with whom the perpetrator has a romantic relationship, regardless of sex and gender; if the victim is pregnant; or if the crime is committed due to the victim’s gender, sexual orientation, or gender identity. Article 118 provides that the statute of limitations on crimes of sexual violence and female genital mutilation against minors do not expire until the victim is at least 23 years old. Article 152 establishes the crime of domestic violence, punishable with imprisonment from 1-5 years. The crime consists of mental or physical abuse, including mistreatment, corporal punishment and sexual offenses, inflicted once or repeatedly on the following victims (1) a current or former spouse; (2) a person with whom the perpetrator has or had a relationship akin to a spousal relationship; (3) a parent of the perpetrator’s child; (4) a person who is incapable to defend him/herself due to age, disability, pregnancy, illness or economic dependency to the perpetrator. In addition, under Article 152, (1) the minimum imprisonment penalty is increased from one to two years if the perpetrator publicizes the victim’s personal information or any other private information (including information stored on audio or video) via Internet or other means available; (2) the perpetrator may be prohibited of having contact with the victim; (3) the perpetrator may be prohibited from being granted a gun license; (4) the perpetrator may lose parenting rights for up to 10 years. Also, Article 152 imposes a sentence of 2-8 years imprisonment if the domestic violence results in serious physical injury, which increases to imprisonment to 3-10 years if the domestic violence results in death.
O artigo 114 proíbe a realização de mutilação genital feminina, impondo pena de prisão de dois a 10 anos. O artigo 145 estabelece penas maiores aos crimes de ofensa contra a integridade física e mutilação genital feminina, se o crime for cometido, dentre outras circunstâncias, contra cônjuge ou ex-cônjuge ou contra pessoa no qual o agente tenha estabelecido um relacionamento romântico, independente do gênero ou do sexo, se a vítima estiver grávida ou se o crime for cometido em razão do gênero, orientação sexual ou identidade de gênero da vítima. O artigo 118 estabelece que os crimes contra a liberdade e autodeterminação sexual de menores, bem como no crime de mutilação genital feminina sendo a vítima menor, o procedimento criminal não se extingue, por efeito da prescrição, antes de o ofendido perfazer 23 anos. O artigo 152 versa sobre o crime de violência doméstica, punível com prisão de um a cinco anos. O crime consiste em abuso mental ou físico, incluindo maus-tratos, castigos corporais e ofensas sexuais, infligidos uma ou várias vezes às seguintes vítimas (1) atual ou ex-cônjuge; (2) uma pessoa com a qual o agente tem ou teve uma relação semelhante a uma relação conjugal; (3) um dos pais do filho do agente; (4) uma pessoa incapaz de se defender devido à idade, deficiência, gravidez, doença ou dependência econômica do agente. Além disso, nos termos do artigo 152, (1) a pena mínima de prisão é aumentada de um para dois anos se o agente divulgar as informações pessoais da vítima ou qualquer outra informação privada (inclusive informações armazenadas em áudio ou vídeo) via Internet ou outros meios disponíveis; (2) o agente pode ser proibido de entrar em contato com a vítima; (3) o agente pode ser proibido de receber uma licença de porte de arma; (4) o agente pode perder os direitos parentais por até 10 anos. Além disso, o Artigo 152 pune com prisão de dois a oito anos caso a violência doméstica resulte em sérios danos físicos e pune com prisão de três a dez anos se a violência doméstica resultar em morte.
The Revised Criminal Code of the Federal Democratic Republic of Ethiopia (2004)
The Ethiopian Criminal Code criminalizes most forms of violence against women and girls including physical violence within marriage or cohabitation (Article 564), Female Genital Mutilation/ Circumcision (Articles 565-6), trafficking women (Article 597), rape (Articles 620-28), prostitution/exploitation of another for financial gain (Article 634), and early marriage (Article 648). The Criminal Code outlaws abortion, except in cases of rape or incest, risk to the life of the mother or fetus, severe or incurable disease or birth defect, a mother who is mentally or physically incapable of raising a child, or “grave and imminent danger” that can only be addressed by terminating the pregnancy.
This Act provides policies that address the improvement of the quality of life of individuals and the reduction of the growth rate of the population. (§§ 1-3). §7 sets forth that the Ministry of Gender Development and women’s organizations shall implement gender policy to achieve gender equity, specifically, to increase women’s participation in the work force and in political institutions, to protect women’s property rights in statutory law and customary practices, and to prevent various forms of violence against women, including female genital mutilation, early marriage, teenage pregnancy. §5 sets forth that the family planning facilities shall actively involve the participation of women in deciding family size. §10 states that marriage of young girls before 18 years old, and marriage of boys before 21 years old should be discouraged.
Art. 124: A person who seriously injures a female’s genitals can be sentenced to up to 10 years in prison or fined. A person may be punished for causing such injuries abroad if the person is not extradited.
Art. 181a: The statute provides that anyone who coerces someone to marry or register a same-sex partnership by the use of force or threats can be punished by sentence of custody of up to five years. The statute applies even if the marriage occurred outside Switzerland if the person has not been extradited.
Art. 187: A person can be punished by up to five years in custody or a fine for (1) committing a sexual act with a person under 16 years old, (2) inciting a child under 16 to commit a sexual act, or (3) involving a child under 16 in a sexual act.
Art. 190: A person can be sentenced to between 1 and 10 years in custody or a fine for using violence, threats, or psychological pressure to force a female to engage in a sexual act, or for making her incapable of resisting.
Art. 195: A person can be sentenced to 10 years in custody or fined for (1) inducing or encouraging a minor to engage in prostitution for financial gain, (2) inducing a person into prostitution by taking advantage of their dependency, (3) restricting a prostitute’s freedom to act by controlling his or her work as a prostitute, or (4) making a person continue as a prostitute against his or her will.
Art. 198: A person may be fined for offending someone by performing a sexual act in the presence of another who is not expecting it or sexually harassing someone through physical acts or indecent language.
This law requires the courts to secure the privacy and dignity, as well as physical and psychological well-being of victims of sexual violence during proceedings. However, it does not detail any specific measures to be undertaken. The law also stops courts from inferring sexual consent from silence or lack of resistance and prevents courts from taking into consideration a victim’s sexual history in ascertaining a defendant’s guilt.
The Prohibition of Female Genital Mutilation Act (“PFGM”) outlaws all acts of FGM on oneself and others as well as attempts, procurement, and participation. It allows no exceptions for consent, religion, or culture, and creates a duty to report to the police any knowledge of planned or completed FGM. The penalty is imprisonment not to exceed 10 years for the perpetrator and five years for any participants or abettors. Violations are considered aggravated if the FGM causes death, the offender has control over the victim (e.g., a parent or guardian), the victim has a disability, the victim contracts HIV/AIDS, and/or the perpetrator is a health worker. The penalty for aggravated violations is life imprisonment. The PFGM Act also prohibits any discrimination against women and girls who have not undergone FGM and discrimination against male relatives of women who have not undergone FGM.
Domestic Case Law
Director of Public Prosecutions v H.M. and B.O. Court of Appeal of Ireland (2021)
This case represented the first trial and conviction for female genital mutilation in Ireland. The accused were originally from a French-speaking African country, and were charged and convicted with female genital mutilation and neglect of their daughter in relation to the same incident. At the time of the offence, the girl was under two years old, and her injuries were discovered when her parents brought her to the Accident and Emergency Department of an Irish hospital due to uncontrollable bleeding. Following their conviction, the victim’s parents were sentenced to an unspecified number of years imprisonment for the female genital mutilation and neglect, the sentences running concurrently. They appealed their convictions, claiming that they had not received a fair trial because (i) they did not have the opportunity to present ‘appropriate’ expert evidence and (ii) the translation of H.M.’s testimony before the jury was inaccurate. The Court of Appeal quashed the appellants’ convictions on the second ground, finding that their trial was unsafe and unsatisfactory for not having complied with either the spirit or the substance of the European Union’s Interpretation and Translation Directive, which provides for the rights to interpretation and translation in criminal proceedings. Thus, according to the court, the appellants were unable to properly exercise their right of defence. Following the judgment, the DPP requested a retrial, which was not opposed by the appellants.
In der Beschwerdesache der A (In the Matter of A.) [E 1948/2018-13] (2019)
The appellant, a Somali girl, applied to the Austrian government for asylum and international protection due to her precarious situation in Yemen. The appellant’s family fled to Yemen when she was four years old because her family was discriminated against in Somalia due to their affiliation with a Madhibaan minority clan. The plaintiff’s brother and father were killed and no other family remained in Somalia. Further, female genital mutilation is a common practice in Somalia. The appellant’s application for asylum and international protection was rejected by the relevant asylum authorities and the Austrian Federal Administrative Court on the grounds that the nature of the persecution was found to be insufficiently intense or severe. It was further decided that the appellant’s genital mutilation had already happened , so the international protection against threatened genital mutilation could not apply. However, the Austrian Constitutional Court ultimately revoked this judgment, finding (among other conclusions) that the circumstances of this case were not given sufficient consideration, in particular, the disregard of the fact that women of minority clans in the relevant geographic areas were particularly vulnerable to risks of torture, rape, murder, and forced marriages. The lower court also failed to consider sufficiently the possibility of repeated genital mutilation. Finally, the Court referred to UNHCR’s finding that prior genital mutilation was an equally reasonable justification for the application for asylum and international protection because the victim suffered life-long physical and mental damages.
Die Beschwerdeführerin, ein somalisches Mädchen, beantragte bei der österreichischen Regierung Asyl und internationalen Schutz aufgrund ihrer prekären Situation im Jemen. Die Familie der Klägerin floh in den Jemen, als sie vier Jahre alt war, weil ihre Familie in Somalia aufgrund ihrer Zugehörigkeit zu einem Clan der Madhibaan-Minderheit diskriminiert wurde. Der Bruder und der Vater der Klägerin wurden getötet, und keine andere Familie blieb in Somalia. Außerdem ist die weibliche Genitalverstümmelung in Somalia eine gängige Praxis. Der Antrag der Klägerin auf Asyl und internationalen Schutz wurde von den zuständigen Asylbehörden und dem österreichischen Bundesverwaltungsgericht mit der Begründung abgelehnt, dass die Art der Verfolgung nicht ausreichend intensiv oder schwer sei. Außerdem wurde festgestellt, dass die Genitalverstümmelung der Beschwerdeführerin bereits stattgefunden hatte, so dass der internationale Schutz gegen drohende Genitalverstümmelung nicht zur Anwendung kommen konnte. Der österreichische Verfassungsgerichtshof hob dieses Urteil jedoch schließlich auf, da er (neben anderen Schlussfolgerungen) feststellte, dass die Umstände dieses Falles nicht ausreichend berücksichtigt wurden, insbesondere die Tatsache, dass Frauen von Minderheitenclans in den betreffenden geografischen Gebieten besonders gefährdet sind, gefoltert, vergewaltigt, ermordet und zwangsverheiratet werden. Die Vorinstanz hat auch die Möglichkeit wiederholter Genitalverstümmelung nicht ausreichend berücksichtigt. Schließlich verwies das Gericht auf die Feststellung des UNHCR, dass eine frühere Genitalverstümmelung eine ebenso angemessene Begründung für den Antrag auf Asyl und internationalen Schutz sei, da das Opfer lebenslange körperliche und seelische Schäden erleidet.
In der Beschwerdesache der A (In the Matter of A.) [E 1043/2020-10] Österreichischer Verfassungsgerichtshof (Austrian Constitutional Court) (2020)
The appellant, a 22-year-old Somali woman, applied to the Austrian government for asylum and international protection, stating that she was abducted by the Al-Shabaab Militia and her uncle arranged a forced marriage for her. Her application for asylum and international protection was rejected by the relevant asylum authorities and the Austrian Federal Administrative Court on the grounds that the reasons stated by the appellant were not credible, too vague, and contradictory. In addition, the fact that she still had family (including her uncle) in Somalia was deemed as sufficient proof that she could lead a life without undue hardship. However, the Austrian Constitutional Court ultimately revoked this judgment, finding (among other conclusions) that the circumstances of this case were not given sufficient consideration, particularly, the fact that it would be unreasonable for the plaintiff to return to her family. The court did not sufficiently investigate and consider that the appellant’s uncle appeared to have beaten her several times, robbed her, locked her up, forced genital mutilation upon her and arranged for a forced wedding. The Court found the appellant’s right to equal treatment violated.
Die Beschwerdeführerin, eine 22-jährige Somalierin, beantragte bei der österreichischen Regierung Asyl und internationalen Schutz mit der Begründung, sie sei von der Al-Shabaab-Miliz entführt und von ihrem Onkel zwangsverheiratet worden. Ihr Antrag auf Asyl und internationalen Schutz wurde von den zuständigen Asylbehörden und dem österreichischen Bundesverwaltungsgericht mit der Begründung abgelehnt, die von der Beschwerdeführerin angegebenen Gründe seien nicht glaubwürdig, zu vage und widersprüchlich. Darüber hinaus wurde die Tatsache, dass sie noch Familie (einschließlich ihres Onkels) in Somalia hatte, als ausreichender Beweis dafür angesehen, dass sie ein Leben ohne unzumutbare Härten führen konnte. Der österreichische Verfassungsgerichtshof hob dieses Urteil jedoch schließlich auf, weil er (neben anderen Schlussfolgerungen) feststellte, dass die Umstände dieses Falles nicht ausreichend berücksichtigt worden waren, insbesondere die Tatsache, dass es für die Klägerin unzumutbar wäre, zu ihrer Familie zurückzukehren. Das Gericht hat nicht ausreichend untersucht und berücksichtigt, dass der Onkel der Rechtsmittelführerin sie offenbar mehrfach geschlagen, ausgeraubt, eingesperrt, ihr eine Genitalverstümmelung aufgezwungen und eine Zwangshochzeit arrangiert hat. Das Gericht stellte fest, dass das Recht der Beschwerdeführerin auf Gleichbehandlung verletzt wurde.
XII ZB 166/03 Bundesgerichtshof Bundesgerichtshof (Federal Court of Justice) (2004)
The Court affirmed the decision of the lower court, which had prohibited the parents of a young daughter of Gambian nationality resident in Germany from determining her whereabouts and relocating her to Gambia due to a high risk to the girl of female genital mutilation or cutting.
Der Gerichtshof bestätigte die Entscheidung der Vorinstanz, die es der Mutter einer Minderjährigen mit gambischer Staatsangehörigkeit, wohnhaft in Deutschland, teilweise untersagt hatte, ihr Recht, den Aufenthaltsort ihrer Tochter zu bestimmen, auszuüben, insbesondere das Kind in den Urlaub nach Gambia zu bringen oder einen Wohnortwechsel dorthin zu veranlassen, da ein hohes Risiko bestehe, dass die Tochter während ihres Aufenthalts in Gambia einer Genitalverstümmelung unterzogen werde.
RRT Case No. 1101038 Refugee Review Tribunal (2011)
The applicant appealed a decision denying her a protection visa. The applicant demonstrated evidence that if she returned to Uganda, she would be forced to undergo FGM. The applicant was a member of the Sabiny tribe, meaning her father’s family had the right under Ugandan law to take her away from her mother and compel her to obey traditional practices, including FGM. She further testified that if she returned to Uganda there would be a risk of abuse as she was a Christian, which was not accepted in her family village. Furthermore, when she was 12, her family found a potential husband for her, a witchdoctor who believed in Satan and professed sacrificing people to achieve a particular objective. She was therefore afraid that if she returned to Uganda, she would be forced to marry this individual, who believed that sacrificing people could bring him power and money. The tribunal found that the applicant was a person to whom Australia owed protection obligations.
RRT Case No. 0808751 Refugee Review Tribunal (2009)
The applicant sought a review of a decision to refuse her a protection visa under s65 of the Migration Act 1958. The application was refused because the applicant was allegedly not a person to whom Australia had protection obligations arising out of the Refugees Convention. The tribunal investigated the history of the victim and her claims of substantial risk of being forced to undergo FGM if she returned to Uganda. The evidence presented included the fact that the process is not illegal in Uganda, that her father is relatively high-ranking in a tribe that finds FGM extremely important, and that she has in the past been abducted in order to be forced to undergo the process. She changed schools and stayed with relatives, but those means of escape have not worked as eventually her father and his tribe were always able to find her. As such, the tribunal concluded that there was a risk of serious harm if the applicant were forced to return to Uganda. It also concluded that she does satisfy the s36(2)(a) of the Migration Act and was therefore a person to whom Australia has protection obligations.
Bah v. Mukasey United States Court of Appeals for the Second Circuit (2008)
Three plaintiffs from Guinea who underwent female genital mutilation (“FGM”) appealed decisions from the Board of Immigration Appeals (“BIA”), which had denied their claims for relief and withholding of removal under the Convention Against Torture based on FGM. An applicant who demonstrates past persecution benefits from the presumption that he or she faces future persecution, unless the government shows either a change of circumstances such that the applicant’s life or freedom would not be threatened upon return to his or her native country, or a reasonable possibility of internal relocation within the country. Here, the BIA found that the presumption was automatically rebutted because the FGM had already occurred. On appeal, the Second Circuit held that the fact that an applicant had already undergone FGM cannot, in and of itself, rebut the presumption that her life or freedom will be threatened in the future. In doing so, the Second Circuit found that the BIA had committed two significant errors in its analysis. First, it assumed that FGM is a one-time act without placing the burden on the government to show that the individuals in this case are not at risk of further mutilation. Second, to rebut the presumption, the government must show that changed conditions in the country obviate the risk to life or freedom related to the original claim; it is not enough that the particular act of persecution suffered by the victim in the past might not reoccur. The Second Circuit accordingly vacated the BIA decisions and remanded the cases.
Kone v. Holder United States Court of Appeals for the Second Circuit (2010)
The plaintiff, who was from Côte d'Ivoire, appealed a Board of Immigration Appeals (“BIA”) decision affirming the denial of her asylum application, withholding of removal, and protection under the Convention Against Torture. Her asylum claim was based on female genital mutilation (“FGM”) and her fear that her daughters would be subjected to FGM if she was removed. An applicant who demonstrates past persecution benefits from the presumption that he or she faces future persecution unless the government rebuts that presumption by showing that there is either a change of circumstances such that the applicant’s life or freedom would not be threatened upon return to his or her native country, or a reasonable possibility of internal relocation within the country. Here, the BIA found that the plaintiff’s several voluntary return trips to her native country prior to her application for asylum rebutted that presumption and undermined her credibility. The Second Circuit disagreed, finding that a safe return on one occasion does not preclude potential future harm and that the regulation does not require an applicant to show that she would immediately be persecuted upon return. Similarly, the Second Circuit also found that an applicant’s return trips are not sufficient to undermine an applicant’s credibility. The Second Circuit accordingly vacated the BIA decision and remanded the case, noting that the agency may wish to consider the application for “humanitarian asylum.”
Magerer v. Republic High Court of Kenya at Bomet (2016)
The appellant was convicted of (i) aiding the commission of female genital mutilation (“FGM)” on several girls, (ii) failing to report the commission of FGM, and (iii) allowing her premises to be used to perform FGM. She pled guilty to the crimes and was sentenced to pay a fine of Kshs. 200,000 (or 3 years of imprisonment if she defaulted on the payment). On appeal, she argued that the sentence was overly harsh and oppressive because she was a single mother of three children. Justice M. Muya upheld her sentence, as it was the minimum allowed under the Female Genital Mutilation Act. The Justice in this case noted that within this case “lies the clash between traditional values and the law of the land.” Even though the appellant was abiding by a customary practice, it was in violation of Kenyan criminal law, and thus the appellate court upheld her sentence.
SVFB v. Minister for Immigration & Multicultural & Indigenous Affairs Federal Court of Australia (2004)
A citizen of Nigeria sought protection for fear that she would be subject to female genital mutilation. The Refugee Review Tribunal found that female genital mutilation constitutes serious harm amounting to persecution, but that on the facts, there was no real risk that the applicant would be subjected to female genital mutilation.
VWFG v. Minister for Immigration & Multicultural and Indigenous Affairs Federal Court of Australia (2005)
A citizen of Ghana sought protection for fear that she would be subject to arranged marriage and female genital mutilation. The Refugee Review Tribunal found the applicant to be not credible, in part because she could not identify the ethnic group that the proposed husband came from. The court found these factual conclusions satisfactory and affirmed.
Claimant (on her own behalf and on behalf of her minor children) v. the State Secretary of Justice District Court of the Hague (2008)
The government had denied three of the claimant’s applications for residence under the Aliens Act 2000. The appeal stemmed from the dispute about whether the claimant’s minor daughter was at risk for inhuman treatment (specifically, FGM) in Chad under the European Convention on Human Rights. The claimant argued that her daughter was, as a Hadjarai woman, “very strongly” at risk of FGM, and she herself had been circumcised. The government denied that FGM is a matter of tradition, ethnicity, and religion and claimed that the claimant’s story was inconsistent with what was known about FGM in Chad. The District Court found that the government’s decision was subject to review referring to a U.S. Department of State report that stated that though violence against women and FGM were prohibited by law in Chad, FGM was widespread, deeply rooted in tradition and rarely prosecuted. Further, 93% of Hadjarari women were circumcised. The District Court ordered the government to decide the claimant’s application in light of the Court’s findings.
N. de pourvoi: 84-95759 Cour de Cassation, chambre criminelle (1986)
Two parents sought the assistance of a non-identified female in carrying out a circumcision of their daughter, then aged 21 months and 25 days. The infant’s parents proceeded to assist the non-identified female in the act by immobilising their child throughout the operation. The child subsequently suffered from an external hemorrhage caused by an aperture of the wound, causing anaemia and loss of appetite. The infant’s parents did not at this stage bring the child’s critical condition to the attention of a doctor or emergency services. The child died shortly thereafter. The infant’s parents were convicted of voluntary grievous bodily harm resulting in the involuntary death of a minor which is prohibited in accordance with article 312 of the French Penal Code and failing to assist in the prevention of the child’s death. The case demonstrates the severity with which the French courts will hold parents liable for not only assisting in the practice of female circumcision, but also for failing to prevent the adverse consequences that it may entail.
Deux parents ont obtenus l’assistance d’une troisième personne pour circoncir leur fille, agée de 21 mois et 25 jours. Les parents du nourrisson ont assisté à l’acte par immobilisant leur enfant. Par la suite, le nourrisson a souffert d’une hémmoragie externe, ce qui a causé l’anémie et une perte de l’apétit chez l’enfant. Les parents n’ont pas porté l’attention d’un médecin ni des services de secours à l’état de santé critique de l’enfant. Peu de temps après, l’enfant périt. Les parents ont étés condamnés de maux corporelles graves et volontaires resultant en la mort involontaire d’une mineure, ainsi de ne pas aider en la prevention du mort de l’enfant, ce qui est interdite en accordance avec l’article 312 de la Code pénale française. Les parents ont aussi étées trouvés en violation de la Convention européenne de la droit de l’homme. Les cours français tiendront responsible non seulement les parents qui assistant à la circoncision feminine mais aussi ceux qui ne faites pas l’éffort de prévenir les consequences negatives de cette pratique.
In re A-T United States Executive Office for Immigration Review (EOIR) (2011)
After over six years in immigration court, an immigration judge reversed his previous judgment to give a woman from Mali asylum protection in the United States. As a child in Mali, the woman was subjected to female genital mutilation (FGM). She studied in the United States; her father then ordered her back to Mali to marry her first cousin, despite the fact that she already had three children in the U.S. Fearing forcible marriage and rape for herself and forced FGM for her daughters, the woman applied for asylum. The immigration court denied her request initially in 2004. On appeal, the Board of Immigration Appeals reasoned that FGM is a one-time occurrence, making future persecution unlikely. However, in 2008, the Attorney General intervened, pointing to the interconnectedness of sexual violence and the possibility of future persecution. The Attorney General directed that the case be reconsidered, and after a new trial, the judge granted the woman asylum, indicating that the threat of spousal rape alone was enough to constitute persecution. The case is important for asylum applicants, because violent acts like FGM are no longer to be considered isolated events unlikely to lead to further persecution.
Law & Advocacy for women in Uganda v. Attorney General Constitutional Court of Uganda (2010)
Petitioners challenged the tribal practice of female genital mutilation and argued that it is inconsistent with the Ugandan Constitution. They argued that the practice is cruel, inhuman, and degrading, and endangers the right to life and privacy under the Constitution. The two issues before the court were whether the petition raised any matter for constitutional interpretation and whether the practice of female genital mutilation should be declared as null and void under the constitution. At trial, petitioners produced unchallenged affidavits supporting the fact that female genital mutilation was practiced crudely, wantonly, and without anesthesia, causing permanent damage and trauma to the victim, including incontinence, paralysis, and even death. The court first held that the petition did raise serious questions for constitutional interpretation. Second, the court held that, while the Constitution protects free exercise of cultural or religious custom, such exercise must not infringe on human dignity or the right to be free from cruel, inhuman, or degrading treatment. Thus, the court held that female genital mutilation was inconsistent with the provisions of the Constitution, and thus declared the custom void.
RH 2007:7 Court of Appeals for Western Sweden (2007)
["Anyone committing a breach of Section 1 is to be sentenced to a term of imprisonment of not more than four years. If the offense has caused danger to life, serious illness, or has involved conduct of an unusually ruthless character in some other respect, it shall be regarded as grave. For a grave offence the sentence is a term of imprisonment of not less than two years and not more than ten years.] [A sentence for liability pursuant to Chapter 23 of the Penal Code is to be passed on anyone found guilty of attempting, preparing or conspiring to commit the above offence, or of failing to report it."] A girl who had been raised in Sweden and who knew nothing about genital cutting before going to Somalia, was while in Somalia, completely at the mercy of her father as her only caregiver. The girl had on two occasions tried to escape from Somalia in order to rejoin her mother in Sweden. After an initial failed attempt, the girl succeeded in fleeing. It was established that the operation had been performed after the first escape attempt, and it appeared to have been done both as a reprisal for the girl's attempt to escape and as a way to get her to conform to the will of the father, together with the fact that she was soon to be married off. At the time of the surgery, the girl was eleven to twelve years old. The court considered that the fact that the father took advantage of the girl's helplessness and the fact that it was particularly difficult for the girl to defend herself against the crime was an aggravating factor in sentencing. During the surgery, the girl was forced to lie down on her bed while her father and another man held her legs apart. Using a razor blade, a third man cut the girl's genitals. The Court of Appeal found that the act constituted serious assault and had been very abusive to the girl. The surgery was carried out without anesthesia, and not by a doctor or in a hospital but in the home of the father. Apart from the fact that the surgery was performed in a place where the girl should normally expect to be safe, the crime also exposed the girl to the risk of acute medical complications, and the risk of long-term psychological and physical harm was also evident. The physical damage was considered to be irreparable and may lead to future problems related to pregnancy and childbirth. Of importance is also the statement by the girl that she was terrified during the surgery. In an overall assessment, the Court of Appeal established the compensation for damages and additional compensation for pain and suffering and for travel expenses at a total of SEK 296,045. The father was also sentenced to two years imprisonment.
Fornah (FC) v. Secretary of State for the Home Department House of Lords (2006)
The appellant arrived in the UK in March 2003, aged 15, and claimed asylum on the basis that she would be at risk of subjection to female genital mutilation if she was returned to Sierra Leone. The House of Lords held that women in societies who practiced female genital mutilation were 'members of a particular social group' for the purposes of the Refugee Convention and affirmed that FGM was considered a form of torture.
P. and M. v. Secretary of State for the Home Department Court of Appeal of United Kingdom and Northern Ireland (2004)
The first appellant, P, was seeking asylum from being returned to Kenya on the grounds of a fear of persecution because of the violence that both she and her children had suffered from her husband in Kenya, especially as domestic violence tends to be accepted in Kenya and the police had not effectively protected her against her husband. The second appellant, M, seeks asylum on the grounds of fearing that she would be subjected to female genital mutilation at the hands of her father, who is a member of the Mungiki sect that practices FGM, and who had already previously performed FGM on her mother, causing her mother's death. The Court allowed both appeals for asylum, but did stipulate that not all cases of either domestic violence or FGM would automatically give rise to a claim to protection and asylum.
International Case Law
O. gg. Österreich (O. v. Austria) European Court of Human Rights (Europäischer Gerichtshof für Menschenrechte) (2011)
The applicant, a Nigerian woman, fled to avoid female genital mutilation (“FGM”) and sought asylum in Austria. Austria rejected her application for asylum and she appealed, arguing under Article 3 of the Convention that she ran the risk of being forced to undergo FGM if she expelled to Nigeria. The Federal Asylum Office and the Asylum Court rejected her application. They reasoned that she could have sought the state’s protection and due to her age (she was born in 1973), education, and work experience she should have been able to live safely in other parts of Nigeria on her own. The European Court of Human Rights rejected the complaint of applicant and essentially repeated the reasoning of the Asylum Office and the Asylum Court. It further stated that the circumstances of the applicant’s life in Austria would be more favorable than in Nigeria, but that is not a determinative factor in Article 3 complaints.
Die Antragstellerin, eine nigerianische Frau, floh nach Österreich, wo sie Asyl beantragte, um der weiblichen Genitalverstümmelung in ihrem Land zu entkommen. Ihr Asylantrag wurde zurückgewiesen, wogegen sie Beschwerde einlegte. Sie brachte vor, dass ihr eine Gefahr i.S.v. Artikel 3 der Europäischen Menschenrechtskonvention drohe, eine aufgezwungene weibliche Genitalverstümmelung, wenn sie nach Nigeria ausgewiesen würde. Das Bundesasylamt und der Asylgerichtshof haben ihren Antrag zurückgewiesen. Diese Entscheidung begründeten sie damit, dass die Antragstellerin den Schutz des Staates hätte suchen können und aufgrund ihres Alters (Geburtsjahr 1973), ihrer Bildung und Arbeitserfahrung hätte sie in anderen Teilen des Landes sicher leben können. Diese Argumentation übernahm der EGMR und wies die Beschwerde der Antragstellerin entsprechend zurück. Er argumentierte weiterhin, dass die Lebensumstände der Antragstellerin in Österreich wohl zwar angenehmer sein können als in Nigeria, dies allerdings nicht der entscheidende Faktor für eine Beschwerde unter Artikel 3 der Menschenrechtskonvention sein könne.
S.F.A. v. Denmark CEDAW Committee (2018)
S.F.A., a Somali national, applied for asylum in Denmark for herself and her son born in 2013. She was subjected to female genital mutilation as a child and her father wanted to marry her forcibly to an older man. She had a relationship against her family’s wishes with H., became pregnant and had an abortion. Her father learned about the abortion and her brothers threatened to hand her over to Al-Shabaab. She left Somalia and ended up in Italy. H. traveled to Italy, they got married and she became pregnant and H. died. S.F.A. and her baby traveled to Denmark without documents and she applied for asylum. Denmark rejected her asylum application and dismissed her claim. She filed a complaint with CEDAW claiming that, if she and her son were deported to Somalia she would be personally exposed to serious forms of gender-based violence, as defined under articles 2, 12, 15 and 16 of the Convention. The Committee noted that the Danish authorities found that S.F.A.’s account lacked credibility due to factual inconsistencies and lack of substantiation and that they considered the general situation in Somalia. The Committee rejected her claim that the fact she is a single woman constitutes a supplementary risk factor in Somalia, finding that she has several close relatives in Somalia. Based on the record, the Commission deemed the communication inadmissible under article 4(2)(c) of the Optional Protocol, finding that it was not able to conclude that the Danish authorities failed to give sufficient consideration to the application or that consideration of her case suffered from any procedural defect.
Kaba v. Canada Human Rights Committee (2008)
The applicant was severely beaten by her husband when she intervened to prevent the clitoral excision, also known as female genital mutilation or cutting, of her six-year-old daughter. Both mother and daughter fled Guinea and arrived in Canada where the applicant claimed refugee status for herself and her daughter on the grounds of membership of a particular social group as single women and victims of domestic violence, and in view of the serious risk of her daughter’s excision. The Immigration and Refugee Board (IRB) refused to grant refugee status for lack of credibility. The applicant then applied for an exemption to the permanent resident visa requirement on the basis of humanitarian and compassionate considerations, as well as a pre-removal risk assessment. The IRB rejected both applications and ordered her removal from Canada. The applicant included supporting documents in each application, including reports confirming the risk of excision in Guinea and a letter from her uncle in Guinea that attested to her husband’s threats to harm the applicant if he ever saw her again, or kill her if she did not return his daughter to him. The applicant's husband had subsequently obtained a court order forcing the applicant's brother and mother to do everything possible on pain of severe penalties to return his daughter to him in Guinea. The affidavits for the order show that the applicant's daughter faced certain excision and forced marriage upon her return to Guinea. In her complaint to the Committee, the applicant cited violations of several articles of the International Covenant on Civil and Political Rights, including article 7's prohibition of torture and cruel, inhuman, and degrading treatment or punishment. The Committee held that there was no question that subjecting a woman to genital mutilation amounted to treatment prohibited under article 7 of the Covenant, and although the applicant's daughter was 15 the time the Committee addressed the communication, the context and particular circumstances of her case demonstrated a real risk of genital mutilation upon her forced return to Guinea.
Case nr B 4231-06 Court of Appeals of Sweden (2007)
["A person who commits criminal acts as defined in Chapters 3, 4 or 6 against another person having, or have had, a close relationship to the perpetrator shall, if the acts form a part of an element in a repeated violation of that person's integrity and suited to severely damage that person's self-confidence, be sentenced for gross violation of integrity to imprisonment for at least six months and at most six years."] A woman was sentenced to three years imprisonment for having commissioned the genital mutilation of her daughter, and damages in the amount of 450 000 SEK were awarded to the daughter. The mother claimed that the "surgery" was carried out without her knowledge on the day of her daughter's birth. It was established that the mother's testimony was false and that the genital mutilation had been performed during a trip to Somalia in 2001. The mother was also sentenced for gross violation of integrity since she had regularly assaulted and beat the plaintiff. The daughter had also frequently been forced to undergo examination by the mother of the genital area, often in conjunction with men paying visits to the family. The court found that the examination had violated the plaintiff and was intended to violate her privacy. [Decision on file with Avon Global Center]
Collins and Akaziebie v. Sweden European Court of Human Rights (2007)
The first applicant, the mother, filed for asylum upon arriving in Sweden, claiming she had fled Nigeria while pregnant with her daughter, the second applicant, in an attempt to flee the female-genital mutilation ("FGM") that would have been performed on her during childbirth if she stayed in Nigeria. The Swedish Migration Board rejected the asylum application, explaining that FGM was not grounds for asylum, and that FGM was outlawed by Nigerian law so it was unlikely the first applicant would be submitted to the procedure upon return to Nigeria. The Swedish Aliens Appeal Board rejected the applicant's appeal, rejecting her argument that FGM was a deep-rooted Nigerian tradition, carried out despite modern law. Following several more attempts within Sweden to be granted asylum, the applicants filed a complaint with the ECHR, alleging that if they were returned to Nigeria, they would face a high likelihood of being submitted to FGM. The argued this would violate Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR rejected the complaint, ruling that the applicants had failed to "substantiate that they would face a real and concrete risk of being subjected to female genital mutilation upon returning to Nigeria.
Reports
Avon Global Center 2013 Women and Justice Conference Report (2014)
Human Rights Watch report on female genital mutilation in Iraqi Kurdistan.