Female genital mutilation or cutting: an updated medico‐legal analysis

A recent landmark High Court decision both directs and reassures medical and other practitioners in clinical and community settings that no parent or individual can compel this unlawful procedure

Many people from countries where female genital mutilation or cutting (FGM/C) is customary have migrated to Australia and other nations. Legislation in many of these nations prohibits any person, including medical practitioners, from conducting FGM/C.1 Important questions exist about the nature of the prohibition, and lawful and ethical practice in dealing with requested FGM/C. Medical practitioners, community practitioners and religious leaders deserve sound guidance about legal responsibilities and optimal clinical practice.

This is particularly relevant in Australia after recent criminal convictions for conducting FGM/C and for arranging a child’s removal from Australia for its performance.2,3 Most significantly, in October 2019 in The Queen v A2, the High Court of Australia delivered a landmark judgment about the least physically invasive form of FGM/C (type 4).3 The High Court confirmed it is unlawful to perform FGM/C through acts akin to ritual nicks to the clitoris or clitoral prepuce. This prohibition extends to medical practitioners and those who customarily perform cultural procedures.

This judgment has international medical, ethical and social significance, given the broad movement to eradicate FGM/C, alongside continued medicalisation of FGM/C.4 Here, we provide an updated review of Australian legislation. We explain the 2019 High Court decision, and situate it in the context of law, policy and ethics. Implications for clinical practice are identified.

Background

FGM/C is not required by the Bible or the Koran, but is a cultural practice involving non‐therapeutic physical modification of female genitalia. It is generally understood to be motivated by a desire to control female sexual desire, maintain virginity, and promote prospects of marriage.5,6 There are four types of FGM/C:5,6

• clitoridectomy (type 1), which involves partial or total removal of the visible part of the clitoris;
• excision (type 2), which involves type 1 plus partial or total removal of the labia minora, and sometimes the labia majora;
• infibulation (type 3), which involves clitoridectomy, excision, suturing of the labia, and narrowing of the vaginal opening; and
• other procedures (type 4), which involve pricks, nicks and incisions of the clitoris or labia.

In Australia, FGM/C is usually seen among women and girls from countries where the practice is prevalent,7 with all types encountered and type 1 most often reported.8 All forms of FGM/C frequently cause multiple physical and psychological sequelae.5,6,9

Legislation and policy

The grave consequences of FGM/C for girls’ and women’s health and human rights have spurred a global rights‐based effort to eradicate it through legislative and policy developments.10,11 International agencies and a United Nations resolution have called for its eradication.9,12 International legal instruments prohibit FGM/C.11 Scores of countries have enacted laws prohibiting FGM/C,6,11,13 setting new social norms promoting an absolute human right against FGM/C,13 and changing attitudes and behaviour.14,15

In Australia, laws in all states and territories prohibit any person from performing any type of FGM/C. Each statute defines FGM/C as including its four types: clitoridectomy, excision, infibulation, and any other mutilation of the female genitalia. Conducting FGM/C is prohibited, regardless of consent (Box 1).

Each statute clarifies its intended scope by allowing medical procedures for a genuine therapeutic purpose (Box 1). This permits operations to treat medical conditions. Such operations are not FGM/C: they are not situated in the same cultural context, not conducted for the same reasons, and they enhance rather than impair health and psychosocial function. Permitted procedures include treatments for skin cancer, tumours or cysts, and surgery to repair injured muscles. Cosmetic surgery to increase physical comfort, appearance or function is also permitted. Several special situations, such as some involving cosmetic surgery, and post‐partum re‐infibulation,16 involve complex issues requiring separate legal, ethical and clinical analysis.

It is clear, however, that no form of FGM/C animated by its cultural values and motives has a genuine therapeutic purpose in law. Each Australian statute excludes culture, religion or custom as the basis for a therapeutic purpose, or limits them to physical, medical or physiological concerns. Accordingly, therapeutic medical procedures are lawful, but any procedure constituting FGM/C is unlawful. This is consistent with Australian and international guidelines (Box 2).17,18,19,20,21

The Queen v A2: the landmark case

In New South Wales, three people were convicted of conducting FGM/C on two girls aged under 8 years: a nurse (a community member who regularly performed these procedures); the girls’ mother (who arranged the procedures and was present); and the community’s head cleric and spiritual leader (who concealed the offences).3 The acts involved type 4 FGM/C by “otherwise mutilating” each girl’s clitoris.

The Crown alleged a small nick or cut had been made to the clitoris or clitoral prepuce. The nurse claimed she merely touched their genitals with forceps as a symbolic procedure. Medical examination did not reveal scarring or tissue loss. However, both girls reported experiencing pain, and expert evidence of the practice in this community, and recorded conversations between the parties, indicated it involved more than mere touching.

The trial judge directed the jury that the word “mutilate” in this statutory context meant “to injure to any extent”, that a nick or cut can constitute mutilation, and that the Crown did not have to prove “serious injury”. The jury convicted on that basis.

The NSW Court of Appeal quashed these convictions. The Court held that mutilation meant “injury or damage that is more than superficial and which renders the body part in question imperfect or irreparably damaged”. It also held that a procedure involving the clitoral prepuce did not involve the clitoris itself, and hence did not constitute an offence.

The High Court decision

The High Court allowed the Crown’s appeal by a 5:2 majority decision. The first issue was how the court should interpret the term “otherwise mutilates” to determine whether the act constituted mutilation. The second issue concerned the interpretation of the term “clitoris”, to determine whether the act had been inflicted on each girl’s clitoris.

Chief Justice Kiefel and Justice Keane delivered the lead judgment and three other judges agreed. To resolve the interpretation issues, the judgment considered principles of statutory interpretation, and the legislation’s text, context and purpose. The judgment concluded that the legislation’s purpose was to prohibit FGM/C generally “to achieve its cessation” and for this reason, the term “otherwise mutilates” referred to FGM/C “in all its injurious forms”.3 This also meant the trial judge was correct in stating that “mutilate” means to injure to any extent; while some injury was necessary (even if transient), serious injury was not required.3 Second, the majority held that the trial judge’s interpretation of the term “clitoris” was correct since it promoted the legislative purpose of prohibiting all forms of FGM/C. The clitoral prepuce could be regarded as part of the clitoris; and even if deemed part of the labia minora, there was no reason to exclude such closely connected anatomical structures.3

Discussion

High Court decisions bind all lower courts, so Australian law now clearly prohibits FGM/C in all forms, including those involving minor injury or invasive contact. The legislative prohibitions and the principles set down by the High Court unequivocally prioritise bioethical values of beneficence and non‐maleficence by addressing the harms associated with FGM/C over and above respect for cultural difference. The policy rationale for making it unlawful to perform FGM/C, no matter how minimally invasive, is justified by both its individual and broader social harms. It is consistent with national and international policy objectives of eradicating FGM/C to promote the health and human rights of girls and women, reduce collective social harms, and support broader societal flourishing.12,22

Claiming such a procedure is therapeutic through promoting the child’s mental health or social wellbeing, for example, via social inclusion or marriageability, is unsound. Legally, such a claim is unsupported, and is antithetical to the policy values animating the legislation and common law. Ethically, it contravenes the child’s autonomy regarding her fundamental human rights to bodily integrity, and choices regarding freedom of association.22 Despite bioethical defences of medicalised FGM/C,23,24 the theoretical consensus opposes it,13,22 legal and policy prohibitions are clear, and practical reform efforts to prevent FGM/C continue to proliferate, including alternative rites of passage into adulthood.14,15,25,26

Practitioners may be confronted with parents requesting FGM/C, especially type 4, given reported increased medicalisation of the practice.25 The High Court decision both directs and reassures medical and other practitioners in clinical and community settings that no parent or individual can compel this unlawful procedure. Further support and reassurance for health practitioners should occur through education in professional curricula, and in‐service education.25 Even if a practitioner believed a minimally invasive procedure preferable to avoid a more severe procedure, it is unequivocally prohibited by legislation, common law and policy.

Practitioners should respond to such requests with cultural sensitivity, while insisting it cannot be administered. Practitioners could encourage other rites of passage, support involvement with community agencies dealing with FGM/C, and seek further professional support from clinical and practice guidelines, and hospital and health services.