FEMALE GENITAL MUTILATION
This document is also available in pdf format (32k)
Dear Consultee
I am writing to seek your views on the attached draft Bill which repeals and replaces the Prohibition of Female Circumcision Act 1985. The draft Bill aims to strengthen the law by making it unlawful to take or send a girl abroad for genital mutilation, even where it is not unlawful in the country where it takes place.
Female genital mutilation has been a traditional practice in certain communities from parts of North Africa, although it is also practiced elsewhere. It has potentially harmful effects, both at the time it is carried out and in later life. It has no health advantages and the Scottish Executive is not aware of any faith group which requires the practice.
The UK Parliament recognised the unacceptability of the practice by passing the Prohibition of Female Circumcision Act 1985. This specifies the procedures that are unacceptable and makes it an offence to carry out these procedures, punishable with up to 5 years imprisonment. That Act also makes it an offence to aid, abet, counsel or procure female genital mutilation. A person who assists in the removal of a girl to another country for the purpose of carrying out the procedure may, in some circumstances, be guilty of conspiracy to commit an offence by virtue of section 11A of the Criminal Procedure (Scotland) Act 1995 which makes it an offence to conspire to commit an offence outside the UK. However, that section requires that the criminal purpose involves an act which constitutes an offence both under the law of Scotland and the law in the country in which the act is to be committed.
The Westminster Parliament has now gone further, and in order to prevent anyone taking a girl abroad to have such a procedure carried out, has passed the Female Genital Mutilation Act 2003, which makes it a criminal offence to take a girl abroad for the purposes of genital mutilation, even where this is lawful in the country concerned. This Act applies only in England and Wales. The attached draft Bill restates the basic offence in the 1985 Act and adds a further offence which would apply in Scotland of taking a person abroad for the purposes of female genital mutilation. The Bill also proposes a new higher penalty for an offence under the Act of a maximum of 14 years imprisonment.
We take the view that Scotland should do what it can to support international action to eradicate this cruel and unnecessary practice and the current gap in Scots law should be closed, so that the position is the same throughout the UK.
We would welcome comments on the attached draft Bill by 31 August. We appreciate this is a short deadline, but we are anxious to make progress to bring this legislation before the Scottish Parliament at the earliest opportunity. The annex contains details of how to respond and on confidentiality, if requested. If any group would prefer a meeting, or would like to receive this letter in a different language or format such as Braille, we will do what we can to assist.
MICHELINE BRANNAN
CONTACT DETAILS
All comments should be submitted to the following address by 31 August 2004
Gillian McCole
Female Genital Mutilation Consultation
Criminal Justice Division
St Andrews House
Regent Road
Edinburgh
EH1 3DG
e-mail: FGMconsult@scotland.gsi.gov.uk
Telephone: 0131-556-8400
CONFIDENTIALITY
Where confidentiality is not requested, copies of responses received will be placed in the Scottish Executive library and will be available to the general public. The view expressed by the respondents may also be quoted or referred to in any future review of responses . If you do not wish your responses to be made public, please ensure that you indicate clearly that all or part of your response is to be treated as confidential. We will still count confidential responses in any statistical analysis and your views will of course be taken into account in the same way as for non-confidential responses.
ELECTRONIC PUBLICATION AND ADDITIONAL COPIES
Additional copies of this document are also available, on request, and in audio and large print formats from the above address. It can also be viewed on the Scottish Executive website at www.scotland.gov.uk
Female Genital Mutilation (Scotland) Bill
An Act of the Scottish Parliament to restate and amend the law relating to female genital mutilation; and for connected purposes.
1 Offence of female genital mutilation
(1) A person who excises, infibulates or otherwise mutilates the whole or any part of the labia majora, labia minora or clitoris of another person is guilty of an offence.
(2) No offence under subsection (1) is committed by an approved person who performs-
(a) a surgical operation on another person which is necessary for that other person's physical or mental health; or
(b) a surgical operation on another person who is in any stage of labour or has just given birth, for purposes connected with the labour or birth.
(3) The following are, for the purposes of this Act, approved persons-
(a) in relation to an operation falling within paragraph (a) of subsection (2), a registered medical practitioner;
(b) in relation to an operation falling within paragraph (b) of that subsection, a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife.
(4) No offence under subsection (1) is committed by a person who-
(a) outside the United Kingdom, performs a surgical operation falling within subsection (2); and
(b) in relation to the operation, provides services corresponding to those of an approved person.
(5) For the purposes of determining whether an operation is necessary for the mental health of a person, it is immaterial whether that or any other person believes that the operation is required as a matter of custom or ritual.
2 Offence of assisting a person to mutilate own genitalia
A person who aids, abets, counsels or procures another person to excise, infibulate or otherwise mutilate the whole or any part of that other person's own labia majora, labia minora or clitoris commits an offence.
3 Offence of assisting a non-UK person to mutilate overseas a person's genitalia
(1) A person who aids, abets, counsels or procures a person who is not a United Kingdom national or permanent United Kingdom resident to do a relevant act of genital mutilation outside the United Kingdom commits an offence.
(2) An act is a relevant act of genital mutilation if-
(a) it is done to a United Kingdom national or permanent United Kingdom resident; and
(b) it would, if done by such a person, constitute an offence under section 1.
(3) No offence under subsection (1) is committed if the relevant act of genital mutilation-
(a) is a surgical operation falling within section 1(2); and
(b) is performed by a person who, in relation to the operation, is an approved person or provides services corresponding to those of an approved person.
4 Extension of sections 1 to 3 to extra-territorial acts
(1) Sections 1 to 3 extend to any act done outside the United Kingdom by a United Kingdom national or permanent United Kingdom resident.
(2) If an offence under this Act is committed outside the United Kingdom-
(a) it may be treated as having been committed in any place in Scotland; and
(b) proceedings may be taken accordingly.
5 Penalties for offences
A person guilty of an offence under this Act is liable-
(a) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both);
(b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both).
6 Definitions
In this Act-
"United Kingdom national" is an individual who is-
(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen;
(b) a person who under the British Nationality Act 1981 (c.61) is a British subject; or
(c) a British protected person within the meaning of that Act;
"permanent United Kingdom resident" is an individual who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 (c.77)).
Repeal The Prohibition of Female Circumcision Act 1985 (c.38) is repealed.
7 Short title and commencement
(1) This Act may be cited as the Female Genital Mutilation (Scotland) Act 2004.
(2) This Act comes into force at the end of the period of two months beginning with the date of Royal Assent.