A blog by 28 Too Many Programmes Manager Caroline Overton.
When legislation has been in force for nearly 30 years, but no prosecution has been brought under it, it is reasonable to assume that either the law itself is so stringent as to serve as a suitable deterrent, or that the law is drafted in such a way that a prosecution under it is not viable. Whilst the former outcome would of course be far preferable, the verdict in the UK’s first prosecution under the Female Genital Mutilation Act 2003 confirms that the latter is the case here in the UK. That is, at least, for the time being.
It was certainly questionable for the Crown Prosecution Service to pick a case of reinfibulation for its first prosecution –that’s to say the re-suturing following childbirth of the most extreme form of FGM. Indeed, even after this prosecution was announced in March 2014, the CPS, Metropolitan Police and other agencies were still seeking clarification from the Home Office as to whether reinfibulation is actually covered by the UK anti-FGM legislation. The CPS even admitted that of the cases it had reviewed, they believed that this one was not ideal, but that it had the greatest chance of resulting in a conviction.
The facts certainly had all the makings of a compelling TV drama - a busy labour ward; a young mother in the late stages of labour whose distressed baby needed emergency delivery; an inexperienced junior doctor who saved the baby’s life, yet whose single figure-of-eight suture to repair the birth trauma led to a charge of FGM, him being suspended by the GMC and facing a two week trial in the glare of international publicity.
Was the junior doctor, Dr Dharmasena, made a scapegoat? The lady affected was a reluctant victim and refused to bring charges herself. Of course, that could reasonably be expected of an FGM survivor. When a midwife pointed out that the way Dr Dharmasena had repaired the trauma may have been illegal, he spoke to his consultant who reassured him and advised him not to remove the suture. So, his supervisor was not overly concerned about his actions. Might the fact that this prosecution was announced three days before the Director of Public Prosecutions was due to explain to ministers why there has not been a prosecution under the anti-FGM legislation have something to do with it? Well, that was certainly interesting timing.
Whilst having enormous sympathy for the legal process that Dr Dharmasena experienced, I can’t help but feel that his prosecution marks a significant step forward in battling FGM in the UK. Legislation and prosecutions alone will not end the practice of FGM. Indeed, an emphasis purely on punitive measures would drive the practice underground and create more of a taboo. Certainly, the publicity surrounding any prosecution raises awareness and serves as a deterrent. However, it also signifies a woman or girl that the law has not protected and for whom a successful prosecution cannot undo or make up for what has been done to her. To that end, the deterrence factor of any prosecution, no matter what the outcome, may be the most significant outcome.
However, it is also important to question whether the law is fit for purpose. Is it targeting the perpetrators? It’s not about show trials. We understand from the CPS that there are 7 more cases in the pipeline to be considered for prosecution. Certainly, the number of cases which have not been pursued is symptomatic of a law which is difficult to enforce. Encouraging, though, is the fact that the pool of people who can be prosecuted for FGM is about to be extended by the passing of the Serious Crime Act 2014. This will close some loopholes and extend the categories of those who can be prosecuted. This will include those “habitually resident” in the UK (rather than only “permanent UK residents” as currently drafted). Parents can be prosecuted if they fail to prevent their daughter being cut, and victims will be granted lifelong anonymity from the time of making an allegation to police. There will also be new civil protection orders to protect potential victims of FGM (e.g. preventing them being taken overseas if there are concerns that the girl may be cut there).
Earlier this week I had the privilege of meeting the Prime Minister who reaffirmed his commitment from the Girl Summit last summer to the mandatory reporting of those thought to be at risk of FGM in the health, education and justice sectors. He expects to see the law in force before the general election in May. Again, it’s encouraging that such an obligation will arise. Many FGM campaigners argue that FGM should be treated like any other form of child abuse. English legislation currently places a statutory duty on agencies to co-operate to safeguard and promote the welfare of children. However, this obligation would seem to go one step even further by creating a positive reporting obligation, and a risk of prosecution, where a professional fails to make a report.
However, how can a reporting obligation be effective if the frontline professionals do not know about FGM or about their reporting obligations? Indeed, it was Dr Dharmasena’s lack of training about FGM and hospital policy, rather than any deliberate action on his part, which ultimately resulted in his prosecution. We understand from contacts in Australia where a mandatory reporting requirement already exists that social services and the police do not know how to handle any reports and that some states have never had a report for a girl at risk.
So, FGM has had its day in court. There wasn’t a conviction, but what has been highlighted is a lack of training and awareness for frontline professionals in dealing with FGM issues. With the other statutory changes coming into effect later this year it is vital that the CPS brings viable prosecutions and that frontline professionals are trained in how to recognise and treat those at risk of FGM.
Caroline Overton is a lawyer who volunteers as Programmes Manager for 28 Too Many