Female genital mutilation in Europe : An analysis of court cases

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Female genital mutilation in Europe : An analysis of court cases

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Publication Report
Title Female genital mutilation in Europe : An analysis of court cases
Author(s) Johnsdotter, Sara ; Mestre i Mestre, Ruth M.
Date 2015
English abstract
This report was prepared for the European Commission. The terminology used is theirs. This study develops a comparative overview of recent FGM (Female Genital Mutilation) court cases within the EU, as well as an exploratory survey of transnational movement in relation to FGM. The legal aspects of 20 recent criminal court cases in Europe are analysed, and evidence about transnational movement to have FGM performed is assessed. The report is based on data collected by country experts in eleven European countries. Data include court decisions, migration background of groups from FGM-practising countries in the host countries, the process of FGM-reporting, and stakeholders’ proposals and opinions regarding FGM. The report addresses the general legal context or framework to fight FGM in the eleven countries, and it briefly analyses the impact that the embracing of the due diligence standard could have, as a consequence of the signature of the Istanbul Convention by all the countries in the report. A finding of our study is the fact that the responses given by different countries to FGM are modelled by disparities of public prosecution systems in Europe. Calling upon state parties to apply the Istanbul Convention and accordingly modify existing provisions that limit their jurisdiction over FGM cases (art. 44) could have an impact on such procedural disparities, although further research is needed in this area. The review of existing court cases shows the legal concepts of ‘error of prohibition’ and ‘neglect of care’ as novel approaches for both prosecution and prevention of FGM in Europe. As a consequence, the report points out that these aspects (due diligence, neglect of care, and error of prohibition) ought to be further explored in future discussions, not primarily for their potential to result in more criminal court cases of conviction, but because of their potential power as preventive tools. In the analysis of collected data, we distinguish between ‘typical’ and ‘atypical’ cases, provide examples of those categories, and discuss what the criminal court cases tell us about the geography of illegal FGM activities among migrants in European countries. A strong tendency in the data is that rumours about a transnational movement to have FGM carried out state that girls are brought to their countries of origin to undergo FGM. This situation is reflected in court cases: although FGM has been carried out in France, Italy, Switzerland, and possibly in Spain, a majority of criminal court cases regard FGM performed in African countries. As for the process of reporting suspicious, pending, or performed FGM cases, most countries establish for professionals a duty to report. However, there are conflicting interpretations of such duties between legal operators and lay people, provoking practical difficulties and ethical dilemmas. Country experts collected possible reasons for the scarcity of reported suspected cases within the EU. Amongst the reasons stated by stakeholders in the different countries, the two more important were lack of first-hand information and fear of disproportional measures (such as parents under arrest and institutionalisation of children). Children at risk of FGM are not in abusive environments, but the system responds as if that were the case. As for the policy suggested, the report briefly discusses the legal and ethical implications of some of the stakeholders’ suggestions. For instance, a valuable suggestion is the idea of creating incentives to report by offering better service provisions for affected women and girls. This suggestion tries to counterbalance the idea many professionals have that reporting will only make things worse for the affected family, as special services and provisions are not in place. Access to services or rights would not rely on the willingness of victims themselves to cooperate or report but on the establishment of a system of services that professionals can use when re- porting such cases. A stronger emphasis in awareness-raising campaigns among professionals and communities, on medical and social support for affected girls and women would possibly strengthen as well the incentive to report. The report identifies several areas where further research is needed. One such area is processes of social and cultural change as regards views and practice of FGM among immigrants from FGM-practising countries. A future key question is how legislation, policies, and preventive efforts can speed up the processes of abandonment of FGM among immigrant communities in Europe.
DOI http://dx.doi.org/10.2838/68389 (link to publisher's fulltext.)
Link http://ec.europa.eu/justice/gender-equality/files/documents/160205_fgm_europe_enege_report_en.pdf (external link to publication)
Publisher European Commission - Directorate-General for Justice
ISBN 978-92-79-54897-0
Pages 52
Language eng (iso)
Subject(s) FGM
Female Genital Mutilation
Female Genital Cutting
Female Circumcision
Legal systems
Court cases
Humanities/Social Sciences
Research Subject Categories::LAW/JURISPRUDENCE
Handle http://hdl.handle.net/2043/20517 (link to this page)

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