Should Female Genital Mutilation (hereinafter referred to as "FGM") be considered a criminal offence? In your opinion, how does FGM violate a woman's right to privacy and personal enjoyment? Would such acts be considered a breach of the Human Rights Act 1998 in the United Kingdom? You are required to critically evaluate the law on woman's rights in relation to FGM and the law on human rights in answering the above question. You are also required to consider whether the countries practicing FGM should adopt a code such as the Human Rights Act 1998 (UK).
Female genital mutilation (hereinafter referred to as "FGM"), also widely known as female circumcision is a practice traditionally practiced by peoples all around the world. FGM refers to the surgical operation of removing healthy normal female genitalia. 1 Also, the World Health Organisation (WHO) defines all procedures which partially or totally remove the external female genitalia or causes injury to the female genital organs for non-medical reasons2 as FGM. Traditionally, this FGM was believed to be practiced among Muslims in Middle East and Asia countries, ancient Egyptians and Arabs.
Although FGM was seen and practiced as either religious or ethnic rituals the practice in North America and Europe resembles a totally different purpose. In the late 19th century, it was widely carried out in these regions especially the United States with the intention to "cure female insanity"3. However, true it may seem that a large number of the Muslim societies practices FGM, it was firmly denied by many religious leaders that FGM is an injunction in the Qur'an4. The Christian religious leaders had denied FGM as a "commandment" in the Bible as well5. God has created mankind the way we were for a purpose.
Female genitalia should not be treated as the cause of evil and death. People should stop believing in ridiculous reasoning for FGM to be performed. It has been proven that the main purpose of FGM was the control of female's sexual pleasure in ancient time. However, the Creator's creation should not be changed unnecessarily especially without a strong reasoning. Female genitalia, especially the clitoris, were made to provide orgasm to women during sexual intercourse. Women should be given their right to their private sexual life and should be treated equally as men were.
Instead of performing female genital mutilation or circumcising females, education should be a better approach to control female and even male sexual need. Women and even children deserve every right to privacy and their personal enjoyment should not be interfered by others. The society or authority should not have any right to decide whether a person should be circumcised in order to control their sexual activity. Since FGM diminished or even eliminates women's ability to reach orgasm during sexual intercourse, women could not enjoy sexual activity with their husband.
This does not only violate a woman's right to personal enjoyment, but the marriage may be affected due to unhappy sexual life between the couple. A woman's privacy should be preserved and protected instead of performing non-medical operation to control their personal life. Unlike male circumcision, FGM was performed and wholly based on male dominance society with the intention to curtail woman's freedom including their sexual life. Although many of the Muslim society practise FGM as part of their tradition and religious practise, it was not true as Islamic law allows and protects women's sexual enjoyment.
6 Islamic law which allows woman to seek divorce because of the inability of the husband to provide sexual satisfaction7 proves that sexual enjoyment by woman is equally recognised as men. Therefore, FGM should not be an excuse of the religious practise for people to gain control over woman's sexual life. It has been century long issue on the female genital mutilation practice and the human's rights concerning it. It is undeniable that this practice infringed the basic human rights of the victims. Usually, no consent had been given by mutilated victims.
In fact, most of the mutilated victims are unable to give consent to the operation due to their lack of age and ability to appreciate the implication of the operation on them. FGM, by and large takes place at a very young age of the victim as young as infancy to women at their delivery of the first child. 8 Most of these females, when circumcised, was not able to apprehend the nature of the act done on them, children especially, were not able to give consent to what was to be done on them. If a child struggle in the circumcision process, the elders in charge would force them down.
This violates the child's right to personal integrity and their right to be free from being tortured. It was such a cruel and inhuman for an infibulated woman's vagina would need to be deinfibulated in order to have sexual intercourse with their husband. 9 And often than not, this would be performed by their husband. 10 The fact that most circumcision process was not properly performed by a trained medical practitioner and the deinfibulation was done by an inexperience husband added the pain and risk to a woman.
While a woman would be deinfibulated on the wedding day or before giving birth11, re-infibulations was done on woman after giving birth. 12 All these acts done on young girls and women violate the European Convention on Human Rights13 (hereinafter referred to as "the Convention"). Article 314 of the Convention prohibits people from being physically or mentally tortured. Since unlawful forces were usually applied in order to circumcise a girl or woman15 without a therapeutic reason, it is therefore reasonable to conclude that the act was indeed a torture towards the victims.
Psychological torture also resulted throughout the process. Fear of pain by the victims before being circumcised and the force used may be traumatic to the victims. Young victims especially, may carry the painful experience and feeling incomplete as a woman throughout their lifetime if they survive. These tortures, either physically or mentally, would be sufficient to be deemed as a crime. Millions of females were circumcised yearly and many of them did not survive the process. This situation indirectly infringed Article 116 of the Convention.
The victims, being deprived the proper medical procedures and treatment, may lead them to death. 17 According to the Convention, everyone deserves the right to life no matter how frail and insignificant their life would be. Without being given the best precaution during the operation intensified the suffering of the victims especially when no medical assistance was available when the operation went wrong. Despite the known risk that death would probably occur, no medical provision was prepared for the sake of the victim's life. All these, would constitute a crime for depriving victim's right to life.
Female circumcision or FGM should be considered a breach of Article 518 of the Convention. Females, deserves every rights as a human to liberty and security. A person's liberty should include a person's freedom to decide their own cause. FGM, which was usually decided and performed on an individual, is clearly a breach to the individual's personal integrity. Furthermore, the act of cutting the clitoris, no matter how minimal was the effect on the victim, infringes individual's physical integrity. Hence, FGM breaches individual's rights to liberty and security.
Article 1219 provides that individual that reaches marriageable age has the right to found own family according to the national law. However, communities that practices FGM regard circumcision as an essential element for females to be complete as a woman and to be marriageable. FGM should not be used to determine a woman's capacity to be married. While every individual deserves the right to be married, a girl in an FGM community is deemed to be circumcised to get married. 20 Because of the beliefs that FGM purifies females and symbolises their feminity and fertility, FGM was insisted as cultural or religious obligation.
21 Uncircumcised females should not be discriminated and deprived from their right to marry. Millions of females worldwide had proven that FGM has no effect for women to be married and ability to conceive child. In fact, the belief about the evil cause of female genitalia22 has been proven wrong since none of the feared result occurred in uncircumcised females. Even if circumcised women got married, they may still face problems caused by the operation. Polygamy often occurs in FGM practising society due to women's infertility. However, 20-25% of women's infertility was related to FGM.
This situation does not only cause women to lose their husband, but the consequences cause them to be unable to conceive children of their own. It would be undeniable that FGM does not only strip off a woman's right to found a family but also her right to happiness. Would a family without own child be a complete family? Therefore, FGM proves to be against the Convention and there should not be any reason to circumcise or mutilate female's genitalia. Since 1998, the United Kingdom (UK) has adopted the Convention by enacting the Human Rights Act 1998 (hereinafter referred to as "the HRA 1998").
Thus, the United Kingdom ratified the Convention and the people are bound to enforce and uphold the rights provided by the HRA 1998. UK, although not the main country with high rate of FGM practice, is still exposed to the risk of practitioners within the country due to immigrants and refugee. Immigrants, who came from community where FGM is a common practice or a culture, tend to continue the practice by taking young girls abroad to have them circumcised. 23 However, making FGM a crime would interfering ethnic's culture which is also against the Convention since it discriminates the ethnic's culture.
Hence, it should be carefully studied before concluding the criminal liability of FGM. UK had since find FGM a criminal offence since 1985 after the passing of Prohibition of Female Circumcision Act 1985. However, criminalising FGM may not be effective enough to cope with the 5000 years old tradition that has been deep-rooted in the people's culture. 24 Although the above mentioned provides a strong argument that FGM do violate the HRA 1998, the provision in HRA 1998 also provide the right to the practitioners to decide the operation performed on them.
If Article 5 was to be read the other way round, it would suggest that circumcised woman has the right to give consent for FGM to be performed on them. Although this would not be a strong argument for consenting children, it would be relevant to adults who are able to apprehend the risk and make decision for themselves. The Female Genital Mutilation Act 2003 which repeals the Prohibition of Female Circumcision Act 1985 would be incompatible with the HRA 1998 as well.
Edo State Female Genital Mutilation (Prohibition) Law 1999 has gone to extend to criminalise consenting women who have FGM performed on them. 25 Although FGM is a known practise that exposes females to various physical and mental health risks, the law should not be utilised to control the practise. Criminalising FGM on consenting women would be a repeatition of the nature of FGM, which was initially practised to control women's sexual behaviour. Instead, proper sexual education and the harm of FGM should be a wiser and more effective mean to cope with the fundamental problem of FGM.