Amending New Zealand's Crimes Act 1961, to include all forms of Female Genital Mutilation - a background paper [2020] NZHRCSub 4 (19 February 2020)

Last Updated: 14 June 2020

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

Background

1. 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

2. 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.

3. 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

4. Since the 1990s, increased migration of refugee populations from areas that practice FGM/C brought the issue into New Zealanders’ consciousness.

5. 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

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from these communities is around 4,400 (New Zealand Census, 2013; Perumal, 2010).⁴

6. 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

7. 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:

1. 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).

2. 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).

100. 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).

4. 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)

8. 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

6. Ibid

9. 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

10. 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

11. 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

12. The WHO definition of FGM was adopted by the United Nations and remains their definition to date.

13. 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

14. The United Nations has made 8^th 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

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15. 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”

16. The Convention on the Elimination of All Forms of Discrimination Against Women states State parties must:

17. 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.

18. 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.

19. The United Nations Convention on the Rights of the Child states:

20. 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.
21. 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.
22. (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.

23. 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.

24. 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;

25. 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

Community Views New Zealand

26. 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.

27. 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

28. 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

29. 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.

31. 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

32. 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

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33. 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.

34. 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”.
35. 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