Here we list 10 problems that have plagued the fight against FGM and 10 solutions that could improve the situation.
WHAT THE PROBLEMS ARE
1. Complaints from survivors. Survivors are disempowered girls, with little voice, knowledge or social resources to make official complaints. Mutilated when young, these are often the children of those who organise the ceremony. They may be related to accomplices and be fearful of "cutters" who have status, authority, "mystique" in their communities. These children are confused, have conflicting loyalties and are scared of losing their parents.
2. Witnesses. Typically these are family members who believe stopping the practice can damage family's economic and social prospects. Mutilations either happen overseas or, if in the UK, in private homes (thus lack bystander evidence). Those relatives who might disapprove and report can face social ostracism and physical threats.
3. Professionals. Despite clear guidelines, many frontline professionals (GPs, midwives, teachers, healthcare visitors, social workers) are not trained, do not understand the law and harbour beliefs that FGM is someone else's problem. They are uncertain about the significance of "cultural" or "traditional" values and concerned about accusations of racism. Some worry about patient confidentiality and their role supporting socially isolated clients. Hospitals report a mere 5-10% of FGM cases to the police or local authorities.
4. Testimony of mutilated child. Children are unlikely to give evidence against parents or relatives for fear of losing their family or social group. Even if marginally more likely to give evidence against a "cutter", they face huge social pressure to keep silent in communities where FGM is perpetuated as a potent symbol of social solidarity.
5. No criminal propensity. Responsible adults in an FGM context usually have no history of offending, are likely to be otherwise caring and exhibit little external indication that they're about to commit a serious criminal offence against their child. Access for investigators may be tricky but not impossible. Until recently there has been a failure to build cases based on circumstantial evidence.
6. Identification. It cannot be assumed both parents were party to the mutilation. Sometimes mutilations are at the instigation of members of the wider family group and contrary to a parent's wish. If a child is found to be mutilated, it is a forensic challenge to prove a) who inflicted the injury and b) who was party to it.
7. Legal loopholes. In terms of mutilation abroad, UK criminal law applies to British national or "settled" children. Thus there is no protection if children from recently arrived or mobile communities are taken abroad to be mutilated.
8. Institutional culture. For decades there has been a disconcerting lack of appetite or expertise to deal with the problem by police and prosecuting authorities.
9. Lack of credible deterrent. Without evidence that FGM will be robustly prosecuted, the law's deterrent effect is nullified. Criminological evidence suggests that criminal sanctions do not deter for crimes that are opportunistic but FGM is a calculated decision, requiring planning. If there's a genuine prospect of children being taken into care and those involved in the mutilation sent to prison, a rigorously enforced FGM law would have a significant deterrent effect.
10. Cumulative effect. These factors are interlocking and mutually reinforcing. There also needs to be a proper understanding that law does not operate in isolation from wider community factors. FGM is a perfect storm of taboo subjects: gender violence, sexual liberty and race.
WHAT TO DO ABOUT IT
1. Complaints from survivors. The burden of policing FGM should not rest on survivors. Investigation and prosecution demonstrates that complaints will be taken seriously; that FGM is a crime, child abuse and a serious human rights violation. Specialist support services, including remedial medical and psychological support, demonstrate that broader society is on their side. This may encourage older teenagers and young women survivors to come forward, and they can then provide support to children.
2. Complaints from witnesses. The law on "special measures" procedures to protect witnesses who testify should be explicitly applied to FGM cases, as it is in sexual abuse cases. These measures include pre-recorded testimony, TV link and, in appropriate cases, witness anonymity. The CPS should immediately declare that this is their approach.
3. Referrals from professionals. Voluntary guidelines have failed. Mandatory training is required to recognise risk. But the UK must also seriously consider a mandatory reporting (and data recording) requirement for professionals working in regulated activities (health, education, social services). A simple "traffic lights" system that removes next-step decisions from informants and allocates them to specially trained FGM protection officers could be rapidly implemented.
4. Dispensing with child evidence. Consideration should be given to creating a "failure to protect from FGM" law for cases where a child is mutilated when demonstrably in the care of parents but perpetrator identification is not possible. The forensic question shifts from who mutilated the child to why the child has not been protected. Such a provision would avoid the need for the child to testify. Such a law would require careful guidelines to avoid misuse.
5. Use of hearsay evidence. Cases can be built around circumstantial evidence. Such prosecutions can be strengthened by use of hearsay evidence which is already admissible and increasingly used. The court of appeal recently confirmed the conviction in a child rape trial where hearsay evidence from the traumatised child replaced the child coming to court (R v Clifton: prosecuted by Felicity Gerry).
6. Innovative operations and sentencing. Greater use of intelligence-led police operations and surveillance, particularly against "cutters". Sentencing guidelines should emphasise the availability of significantly reduced sentences for former cutters or parents who co-operate with authorities.
7. Close the loophole. If someone in the UK is arranging for girls in the UK (but who are not yet British nationals) to be taken abroad for mutilation, it is absurd that FGM law does not apply. This loophole should be closed.
8. Preventative orders. Consider the creation of a new FGM prevention order system where authorities could apply for an order prohibiting the mutilation of a child where there is clear evidence of risk (cf sexual offences prevention orders). This allows the child to stay at home but puts carers under threat of prosecution. Crime prevention is always preferable to prosecution.
9. International reach. New legal powers equivalent to forced marriage legislation. Where there is suspicion that girls resident in the UK are at risk of being mutilated abroad ("holiday cutting") orders could be sought to prevent the child being removed from the UK and/or relatives compelled to reveal the overseas whereabouts of the child so that consular staff can intervene.
10. Honour international obligations. It is already part of the UK's international law duties to respond in a proactive way to eliminate FGM. In 2012 the UN resolved that state responses should be properly resourced. The UK must meaningfully honour its international FGM obligations to protect and empower women and girls.
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