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Amending New Zealand's Crimes Act 1961, to include all forms of Female Genital Mutilation - background paper by Joanna Maskell [2020] NZHRCSub 6 (19 February 2020)
Last Updated: 20 January 2021
![2020_601.png](2020_601.png)
Amending New Zealand’s Crimes Act 1961, to include all
forms of Female Genital Mutilation
A background paper by Joanna Maskell, Senior Advisor NZ Human Rights
Commission and Ayan Said, Advisor to the FGM Education Programme
![2020_602.png](2020_602.png)
Background
- The
purpose of this background paper is to outline what Female Genital
Mutilation/Cutting (FGM/C) is, identify the international human
rights position
regarding this, consider community views in New Zealand and the current legal
framework. This background paper will
assist discussion regarding whether New
Zealand’s Crimes Act 1961 should be amended to include all forms of Female
Genital
Mutilation and reflect the international definition of FGM/C.
Introduction
- Female
Genital Mutilation/Cutting (FGM/C) is a complex and multifaceted practice,
deeply rooted in historical, cultural, social, and
religious beliefs with
unclear origins.1 It is often a rite of passage for girls entering
womanhood and is commonly conducted between the ages of four and 13
years.
- Global
efforts have been made to end the practise of FGM/C. In 1997 WHO, UNICEF and
UNFPA released a joint statement calling for the
abandonment of FGM.2
This statement was expanded in 2008 with 10 UN agencies signing an updated
interagency statement to end the practise.3
- Since
the 1990s, increased migration of refugee populations from areas that practice
FGM/C brought the issue into New Zealanders’
consciousness.
- Currently,
there are four refugee communities, and two migrant communities, living in New
Zealand which practice FGM/C: Ethiopia,
Somalia, Eritrea, Kurdistan (refugee
communities) and Indonesia and Egypt (migrant community). The current estimated
population of
adult women over 15 years
1 Abdulcadir,J.,Rodriguez, M.I., & Say, L.
(2015), “Research gaps in the care of women with female genital
mutilation: an analysis.” BJOG: An International Journal of Obstetrics
& Gynaecology, 122(3), 294-303.
2 “Female genital mutilation”, A Joint
WHO/UNICEF/UNFPA Statement”, World health Organisation, Geneva, 1997.
Accessed
on 26.3.2019 https://apps.who.int/iris/bitstream/handle/10665/41903/9241561866.pdf?sequence=1&isAllowed=y
3 “Eliminating Female genital mutilation – an
interagency statement”, World Health Organisation 2008. Accessed on
26.3.2019, https://apps.who.int/iris/bitstream/handle/10665/41903/9241561866.pdf?sequence=1&isAllowed=y
1
from these communities is around 4,400 (New Zealand Census, 2013; Perumal,
2010).4
- The
practice of FGM/C in New Zealand is a violation of basic human rights for women
and children who are victimised by it, as will
be further discussed in this
paper.
New Zealand is signatory to three international treaties, the Universal
Declaration of Human Rights, the Convention on the Elimination
of All Forms of
Discrimination Against Women and the United Nations Convention on the Rights of
the Child, which can be interpreted
to prohibit FGM/C practices against women
and children based on the right to health, and anti- violence and torture
provisions.
Female Genital Mutilation Definition
- Female
genital mutilation/cutting (FGM/C) is defined by the World Health Organisation
(WHO) as the partial or total removal, or injury,
of external female genitalia
for cultural or other non-medical reasons. According to WHO Female genital
mutilation is classified
into 4 major types:
- Type
1: Often referred to as clitoridectomy, this is the partial or total
removal of the clitoris (a small, sensitive and erectile part of the female
genitals), and in very
rare cases, only the prepuce (the fold of skin
surrounding the clitoris).
- Type
2: Often referred to as excision, this is the partial or total
removal of the clitoris and the labia minora (the inner folds of the vulva),
with or without excision
of the labia majora (the outer folds of skin of the
vulva).
- Type
3: Often referred to as infibulation, this is the narrowing of the
vaginal opening through the creation of a covering seal. The seal is formed by
cutting and repositioning
the labia minora, or labia majora, sometimes through
stitching, with or without removal of the clitoris
(clitoridectomy).
- Type
4: This includes all other harmful procedures to the female genitalia
for non-medical purposes, e.g. pricking, piercing, incising, scraping and
cauterizing the genital area.5 (“FGM 4)
- De
infibulation refers to the practice of cutting open the sealed vaginal opening
in a woman who has been infibulated, which is often
necessary for improving
health and well-being as well as to allow intercourse or to facilitate
childbirth.6
4 P2 “New Zealand should intensify efforts to
eliminate female genital mutilation by 2030: views of women
from communities that practice FG/C”, Said. A, Conn. C, Nayar. S,
Pacific Health, vol 1, issue 1, 2018 ISSN 2537- 8864.
5 “Female Genital Mutilation”, The World Health
Organisation, January 2018, accessed on 2.4.2019 from
https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation
- Ibid
![2020_601.png](2020_601.png)
- The
typology of FGM/C ranges from a small cut, usually on the clitoris, to full
infibulation or closing off of the vaginal opening
(on a 1-4 scale of severity).
The health risks associated vary according to severity of type. Globally FGM/C
is often performed in
unsterile conditions without the use of anaesthesia, and
often in the absence of medical equipment. Cutting devices may include knives,
razors, scissors, or sharpened rocks. This can lead to infection, haemorrhage
and shock, as well as urinary and birthing complications
in the longer term, and
death. More recently, there has been medicalisation of the practice in some
countries.7
International Position
- As
of 2009,20 African countries have implemented legislation against the practice
of FGM. This includes thirteen industrialised countries
that receive immigrants
from countries where FGM is practiced and have implemented specific legislation
criminalising the practice,
including New
Zealand.8
- In
December 2012, the UN General Assembly adopted a resolution on the elimination
of female genital mutilation, reflecting a consensus
that FGM constitutes a
violation of human rights, which all countries of the world should address
through “all necessary measures,
including enacting and enforcing
legislation to prohibit FGM”.9
- The
WHO definition of FGM was adopted by the United Nations and remains their
definition to date.
- In
2016 UNICEF reported on the continuing scale and persistence of female genital
mutilation globally, and the need to intensify efforts
to eliminate the
practice.10
- The
United Nations has made 8th February the International Day of Zero
Tolerance of Female Genital Mutilation.11
7 Jaeger F, Caflisch M, hohfield P. (2009).
“Female genital mutilation and its prevention: a challenge for
paediatricians”. European Journal of paediatrics.168 (1), p
123-134.
8 P8 “Stories and strategies of women living with Female
Genital Mutilation in Auckland communities” New Zealand”,
Said. A.
M., A thesis for Master of Public Health,2015, School of Public Health and
Psychosocial studies; AUT University
9 “Intensifying global efforts for the elimination of female
genital mutilations”, Sixty-seventh session, Third Committee,
General
Assembly, United Nations, 16 November 2012, Accessed on 26.3.2019, https://www.unfpa.org/sites/default/files/resource-pdf/67th_UNGA-Resolution_adopted_on_FGM_0.pdf
10 “International response - Female Genital
Mutilation”, World Health Organisation, 31 January 2018. Accessed on
26.32019;
https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation
11 Ibid
3
- Article
25 of the Universal Declaration of Human Rights states, “Everyone has a
right to a standard of living adequate for health and wellbeing...Motherhood and
childhood are entitled to special
care and
assistance”
- The
Convention on the Elimination of All Forms of Discrimination Against Women
states State parties must:
- Article
2(f): To take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices which
constitute
discrimination against women.
- Article
5: Modify the social and cultural patterns of conduct of men and women, with
a view to achieving the elimination of prejudices and customary
and all other
practices which are based on the idea of the inferiority or the superiority of
either of the sexes or on stereotyped
roles for men and
women.
- The
United Nations Convention on the Rights of the Child
states:
- Article
2: States Parties shall respect and ensure the rights set forth in the
present Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child's or his or her parent's
or legal guardian's race, colour, sex, language, religion,
political or other
opinion, national, ethnic or social origin, property, disability, birth or other
status.
- Article
19: States Parties shall take all appropriate legislative, administrative,
social and educational measures to protect the child from all
forms of physical
or mental violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual
abuse, while in the care of
parent(s), legal guardian(s) or any other person who has the care of the
child.
- (2):
Such protective measures should, as appropriate, include effective procedures
for the establishment of social programmes to provide
necessary support for the
child and for those who have the care of the child, as well as for other forms
of prevention and for identification,
reporting, referral, investigation,
treatment and follow-up of instances of child maltreatment described heretofore,
and, as appropriate,
for judicial involvement.
- Article
24(3): States Parties shall take all effective and appropriate measures with
a view to abolishing traditional practices prejudicial to the
health of
children.
- Article
37: No child shall be subjected to torture or other cruel, inhuman or
degrading treatment or punishment. Neither capital punishment nor
life
imprisonment without possibility of release shall be imposed for offences
committed by persons below eighteen years of age;
- In
addition, the CEDAW Committee and the Committee on the Rights of the Child have
made comments condemning FGM/C as a human rights
violation.12
12 General recommendation No.14 on Female
Circumcision under the Convention on the Elimination of All Forms of
Discrimination against
Women, CEDAW Committee 1990
![2020_601.png](2020_601.png)
Community Views New Zealand
- A
community based FGM/C Education Programme (FGMEP) was established in 1997 and it
continues today. The programme develops educational
resources for communities,
schools, police and child protection workers, and provides information,
training, and support for health
professionals. The aim is that through
education, communities will become more aware of the harm to health, allowing
them to make
informed decisions. FGMEP is funded by the New Zealand Ministry of
Health and is internationally recognised as a best practise
programme.
- Three
studies have been carried out by the FGMEP involving Somali women living in
Auckland. The first was conducted in 1997, 13involving interviews
with 88 Somali women with a follow-up undertaken in 2008 which consisted of 70
Somali women.14 The most recent study was in
2018.15
- The
2018 study notes, “Support for FGM/C among the women of the Auckland
Somali Community is slowly decreasing. In 1997, 77%
of the participants
supported FGM, in 2008, 47% of the participants supported FGM, and in 2018, 40%
of the Somali women continue
to support the practice. No support for FGM Type 3
was observed in either the 2008 or 2018
surveys.”16
New Zealand Law Currently
- The
Crimes Act of 1961 (section 204A) was revised in 1996 making the excision of
female genitalia for cultural or religious reasons
illegal. It pre-dates the
World Health Organisation definition and needs to be amended to be in line with
the WHO definition, in
order to be effective.
- Currently,
s204A defines FGM/C as “Female genital mutilation means the excision,
infibulation, or mutilation of the whole or
part of the labia majora, labia
minora, or clitoris of any person.”
Reasons for Proposed Change to New Zealand Law
- The
concern from FGMEP is that currently the Crimes Act definition of FGM does not
cover Type 4 FGM/C, all other harmful procedures
to the female genitalia for
non-medical purposes, e.g. pricking, piercing, incising, scraping and
cauterizing the genital area.
13 Denholm & Jama, 1997
14 Denholm, & Powell, 2009
15 “Future Focused: Informing FGM Service deliver in New
Zealand” 2018, FGM Education programme, Powell. M, Denholm. N
16 P21, “Future Focused: Informing FGM Service deliver in
New Zealand” 2018, FGM Education programme, Powell. M, Denholm.
N
5
- Under
the current law the practice of incision of the clitoris can be considered a
legal practice. The FGMEP have specific experience
of a prosecution failing
under New Zealand law for Sunna (a ritualistic prick) of a 4-year-old child who
was taken back to Indonesia
for the procedure. The case was dismissed as the
child’s clitoris had been incised, not excised as is covered under the
Crimes
Act currently.17 This case highlights that the law as currently drafted
does not adequately protect girls against FGM/C. The current
definition needs to
be widened to include all types of FGM/C.
- The
amendment to s204A of the Crimes Act 1961 sought is “Female genital
mutilation (FGM) means all procedures that involve partial or total removal of
the external female genitalia, or causes
other injury to the female genital
organs for non-medical reasons such as a pricking, cutting, incising, scraping
or cauterising
and any other procedure that falls under the definition of female
genital mutilation as defined by the World Health Organisation”.
- The
clause “Other injury to female genital organs” will cover
Type 4 FGM/C, (see para 7 (d)) and so we recommend that the definition under the
Crimes Act 1961 is amended as per this
wording to align New Zealand with
international best practice.
17 P2,“Future Focused; Informing FGM service
delivery in New Zealand”, A report by the FGM Education Programme, June
2018,
Powell. M, Denholm. N
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