Female Genital Mutilation (FGM)
In NSW it is an offence to cause injury to the genitals of a girl or woman. This offence is known as Female Genital Mutilation.
The offence of Female Genital Mutilation prohibits excising (cutting out), infibulating (sewing up) or otherwise mutilating certain parts of the female anatomy for a non-medical purpose. The term “otherwise mutilates” has been defined as “any injury to any extent for a non-medical purpose”.
Causing injury to a girl or woman’s genitals is prohibited under all circumstances, except where it is required for medical reasons such as child birth or sexual reassignment. It is not a defence if the girl or woman consents to or asks for the injury to be inflicted.
A person can be charged with this offence if they perform, or have someone else perform, a religious ceremony or any other act where a woman or girl’s genitals are injured. Examples include where a girl or woman’s genitals are wholly or partially removed, cut, stitched up or bruised.
It is also an offence to take a child overseas for the purpose of performing female genital mutilation or having female genital mutilation performed on them.
The maximum penalty for the offence of Female Genital Mutilation is 21 years imprisonment.
Note: the definition of “otherwise mutilates” is currently the subject of an appeal to the court of criminal appeal.
- Prison Sentence
- Home Detention
- Intensive Corrections Order (ICO)
- Suspended Sentence
- Community Service Order (CSO)
- Community Corrections Orders (CCO)
- Good Behaviour Bond
- Section 10A
- Conditional Release Order (CRO)
- Section 10
The Offence of Female Genital Mutilation
The offence of Female Genital Mutilation is contained in section 45(1) of the Crimes Act 1900 and states:
A person who:
- excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or
- aids, abets, counsels or procures a person to perform any of those acts on another person,
is liable to imprisonment for 21 years.
What Actions Might Constitute the Offence of Female Genital Mutilation
Examples of Female Genital Mutilation include:
- Having a doctor cut out your daughter’s clitoris;
- Using a knife to cut your girlfriend’s labia majora, even if she asks you to do so;
- Taking your daughter overseas to have a nurse circumcise them by removing part or all of the hood of the clitoris;
- Asking your gynaecologist to perform a religious ceremony where a small cut is inflicted on your genitals;
- Having your clitoris, labia minora or labia majora pierced; and
- Performing or facilitating a labiaplasty surgery for cosmetic reasons only.
What the Police Must Prove
To convict you of Female Genital Mutilation the prosecution must prove each of the following matters beyond reasonable doubt:
- That you did an act or that you aided, abetted, counselled or procured someone else to do an act;
- The act involved part of the female anatomy being excised, infibulated or mutilated (injured to any extent); and
- The part of the female anatomy was the labia majora, labia minora or clitoris.
Possible Defences for Female Genital Mutilation
The common ways to defend this charge are:
- To maintain your innocence if you did not commit the act;
- To argue that you did not aid, abet, counsel or procure someone else to do the act;
- To argue that part of the female anatomy was not excised, infibulated or mutilated;
- To argue that it was not the labia majora, labia minora or clitoris that was excised, infibulated or mutilated; or
- To raise self-defence, necessity or duress as the reason for your conduct.
Which Court Will Hear Your Matter?
The charge is strictly indictable which means that the matter will be finalised the District Court or Supreme Court.
Types of penalties:
Home Detention: As a result of amended legislation this penalty was repealed on 24 September 2018 as a standalone order but may be imposed as a condition of an Intensive Corrections Order (ICO). Home detention is an alternative to full-time imprisonment. In effect the gaol sentence is served at your address rather than in a gaol. If you receive a sentence of home detention you will be strictly supervised and subject to electronic monitoring. Read more.
Intensive Corrections Order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.
Suspended Sentence: As a result of amended legislation this penalty was repealed on 24 September 2018. This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.
Community Service Order (CSO): As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.
Good Behaviour Bond: As a result of amended legislation this penalty was repealed on 24 September 2018 and replaced with a Community Corrections Order (CCO). This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.
Community Corrections Orders (CCO): A CCO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the Community Corrections Orders (CCO). Additional conditions may be imposed at the discretion of the court, both at the time of sentence and subsequently upon application by a community corrections officer, juvenile justice officer or the offender. Read more.
Conditional Release Order (CRO): A CRO involves the standard conditions that an offender must not commit any offence and that the offender must appear before the court if called on to do so at any time during the term of the CRO. Read more.
Section 10: Avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.
WHERE TO NEXT?
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.