This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Female Genital Mutilation
The prosecution of those committing female genital mutilation has gained increasing prominence in recent decades with the Crimes Act 1900 providing for severe penalties – up to 15 years in prison – for those found guilty.
Legislation
Section 73 of the Act defines female genital mutilation as an intentionally performed clitoridectomy or excision of any part of the genital organs, infibulation (sewing over of the vagina) or similar procedure and any other mutilation of the female genitalia.
The maximum penalty is imprisonment for 15 years.
Section 74 provides that it is not a defence that the woman or girl, or her parent or legal guardian, consented to the procedure.
Taking a child out of the ACT for the purpose of having female genital mutilation performed on her is punishable by up to seven years’ imprisonment: Section 75.
There is an exception for surgery for a genuine therapeutic purpose, which is defined by Section 76 as being only when the woman is in labour or has just given birth for medical purposes connected with the labour or birth, or by a doctor when necessary for the person’s health.
Section 76(3) makes it clear that a medical procedure that is performed as, or as part of a cultural, religious or other social custom, is not of itself to be regarded as being performed for a genuine therapeutic purpose.
Section 77 provides a further exception to the prohibition on female genital mutilation for sexual re-assignment surgery. “Sexual reassignment procedure” is defined in the Act as a surgical procedure performed by a medical practitioner to give a female person, or a person whose sex is ambivalent, the genital appearance of a person of the opposite sex or of a particular sex (whether male or female).
What Actions Might Constitute Female Genital Mutilation?
The following actions amount to female genital mutilation.
- clitoridectomy (removal of the clitoris);
- excision of any part of the genital organs;
- infibulation (sewing over of the vagina) or similar procedure;
- any other mutilation of the female genitalia.
What The Police Must Prove
To find a person guilty of this offence, a court must be satisfied beyond a reasonable doubt that:
- the physical aspects of female genital mutilation are made out;
- there was not a genuine therapeutic reason for the procedure;
- the procedure was not part of a sexual reassignment operation.
Possible Defences To A Charge Of Female Genital Mutilation
A person charged with this offence may argue in their defence that:
- there was a genuine therapeutic reason for the procedure;
- the procedure was part of sexual reassignment;
- any physical actions taken did not amount to female genital mutilation, as defined in the Act.
Which Court Will Hear Your Matter?
As the maximum penalty for committing female genital mutilation is 15 years’ imprisonment, charges must be heard and determined in the Supreme Court.
The charge of taking a child from the ACT, or arranging for a child to be taken from the ACT, with the intention of having female genital mutilation performed on the child carries a maximum penalty of imprisonment for 7 years. As such, it is possible to seek to “consent to the jurisdiction” of the Magistrates Court, where the maximum penalty that can be imposed is two years rather than anything up to the maximum, which is available to a judge in the Supreme Court. The Prosecution, however, can insist on the matter having to be committed to the Supreme Court.
A matter in the lower court will be determined by a single magistrate whereas a jury of 12 citizens will decide guilt or innocence in the Supreme Court, directed as to the law by a judge, who would impose sentence should the verdict be guilty.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.