Why FGM in the US is Rarely Prosecuted

written by On July 13, 2018 in Uncategorized

By: Soraya Kamali-Nafar

In 1995 the United States (US) Congress adopted the Female Genital Mutilation (FGM) Act, which made the performance of FGM on anyone under the age of 18 a felony. The US Government considers FGM a “serious human rights abuse, and a form of gender-based violence and child abuse.”[1] There are four different FGM classifications designated by the World Health Organization: type one is the partial or total removal of the clitoris; type two is the partial or total removal of the clitoris and the inner folds of the vulva, with or without excision of the outer folds; type three is the narrowing of the vaginal opening by creating a covering seal, which is formed by cutting and repositioning the labia to leave only a small hole; and type four is all other harmful procedures to the female genitalia for non-medical purposes.[2] A 2013 study by the Population Reference Bureau estimated that more than 500,000 women and girls in the United States were at risk of or have been subjected to FGM. While exact data on FGM in the US is lacking, some reports tend to indicate an increase in the practice.[3] That being said, we have seen very few prosecutions – just one. The first and only prosecution occurred in 2017, when two Michigan doctors as well as the wife of one of the doctors were charged with performing FGM on two seven-year-old girls.[4] The lack of FGM prosecution in the US is due to three main factors: religious stigma, gender, and the ambiguous language of the law.

In terms of religion, it is difficult to prosecute FGM in the US due to its controversial entanglement with Islamophobia and immigration. There is a misconception that FGM is a religious practice. When FGM occurs in the US it is oftentimes in immigrant communities. Many of these immigrants originate from Islamic countries where FGM is a normal practice, but, contrary to the common perception, the practice is not just limited to Islam. It is also prevalent in majority Christian nations, such as Ethiopia. The AHA Foundation, in its report entitled “Why we hesitate to protect girls from FGM in the United States” argues that “FGM is not particular to any religious group, nor prescribed by any faith. It is actually a culturally-based practice, a harmful tradition passed on through families and communities that pre-dates all major religions. FGM has been co-opted by some religious sects, but there is no major religion that requires FGM.”[5] While many immigrants are in favor of outlawing FGM in the US, Islamophobia becomes entangled with the movement because anti-Muslim groups openly support outlawing FGM as well. For instance, Maine has been trying to outlaw FGM for some time, but an Islamophobic group, ACT for America, has joined the fight against it.[6] Many liberal politicians are therefore hesitant to push the law further out of fear of associating the outlawing of FGM with anti-immigrant and anti-Muslim sentiments.

FGM is, at its core, a gendered crime in the sense that it is a crime that specifically targets women. Crimes like FGM typically do not receive a high priority because they mainly affect a certain demographic in the US: immigrant women. According to A.E. Groeneveld, a nursing specialist at OLVG hospital in Amsterdam, FGM reflects “a deep-rooted inequality between the sexes and can be seen as extreme discrimination against women and girls.”[7] Women and girls who have been subject to FGM frequently feel too disempowered, are too young, or remain silent about their traumatic experience to speak up and raise the number of prosecutions. As a result of gender imbalances, women and girls’ human rights are often neglected or pushed aside, and FGM is a clear example of this unfair treatment.

Lastly, the ambiguous language of existing FGM laws makes the crime difficult to prosecute. The Federal Prohibition of Female Genital Mutilation Act of 1995 states that the following actions do not violate the law: if the operation is “necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner;” or if the operation is “performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place that it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.” [8] The ambiguity in the language of this Act is emphasized when it states that FGM is acceptable if it is “necessary to the health of the person on whom it is performed” or “for purposes connected with labor.” [9] Both of these exceptions are extremely broad and leave room for interpretation and advantageous actions. FGM is proven to have no health benefits. That being said, oftentimes FGM is performed for what is understood to be health, specifically reproductive health, reasons. Therefore, the ambiguous language of the 1995 Act makes FGM still possible and legal in many circumstances.

FGM was outlawed 22 years ago, and the first trial is only taking place now. It is clear that existing laws against FGM are not sufficient to protect girls. The AHA Foundation states, “Currently, only 26 states in the US specifically ban FGM. The remaining 24 do not have measures in place to prosecute, and prevent, FGM from taking place within their borders.”[10] The following recommendations will help deter, if not eliminate, future FGM occurrences in the US. In terms of the cultural/religious and gender aspects, there needs to be a greater awareness of how many people are impacted by FGM. This can be done through education and advocacy by different actors, such as the police, teachers, civil society groups, and health care practitioners. All of these individuals and groups should work with at risk communities and explain the harms of FGM, emphasizing that it is a cultural, not religious, and sexist practice. In terms of the law aspect, the only viable solution for deterring the practice of FGM is enacting a zero-tolerance policy, meaning that any and every type of FGM is a violation of female’s human rights. A zero-tolerance policy allows for all forms of FGM for any reasons to be illegal, deterring the practice for good.

[1] U.S. Department of State, “U.S. Government Fact Sheet on Female Genital Mutilation or Cutting (FGM/C)”,  https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fact-sheet-on-female-genital-mutilation-or-cutting.html [12 July 2018].

[2] World Health Organization, Female genital mutilation, 31 January 2018, www.who.int/news-room/fact-sheets/detail/female-genital-mutilation [12 June 2018].

[3] Ayaan Hirsi Ali, “Why we hesitate to protect girls from FGM in the United States”, https://www.theahafoundation.org/wp-content/uploads/2018/05/Why-we-hesitate-to-protect-girls-from-FGM-in-the-United-States.pdf [12 July 2018], p. 2.

[4] Ibid, p. 1.

[5] Ayaan Hirsi Ali, “Why we hesitate to protect girls from FGM in the United States”, https://www.theahafoundation.org/wp-content/uploads/2018/05/Why-we-hesitate-to-protect-girls-from-FGM-in-the-United-States.pdf [12 July 2018], p. 4.

[6] Michael Shepherd, “Why Maine is still fighting about female genital mutilation”, 6 February 2018,  https://bangordailynews.com/2018/02/06/politics/why-maine-is-still-fighting-about-female-genital-mutilation/ [12 July 2018].

[7] A.E. Groeneveld, “Female genital mutilation: Tradition versus human rights”, African Journal of Urology 19, https://doi.org/10.1016/j.afju.2013.02.005 , p. 135.

[8] Federal Prohibition of Female Genital Mutilation Act of 1995, https://www.congress.gov/bill/104th-congress/house-bill/941/text [12 June 2018], p. 2.

[9] Ibid.

[10] Ayaan Hirsi Ali, “Why we hesitate to protect girls from FGM in the United States”, https://www.theahafoundation.org/wp-content/uploads/2018/05/Why-we-hesitate-to-protect-girls-from-FGM-in-the-United-States.pdf [12 July 2018], p. 6.

One thought on “Why FGM in the US is Rarely Prosecuted

  1. Wow! Very interesting. I think the USA has taken the partial position of conceptualizing it as ‘Female Circumcision’ – where those of this school of thought appreciate and promote the entire circumcision package as a rite of passage. This position is very difficult to change among many communities. As for those who conceptualize the act as ‘Female Genital Mutilation’ are in fact criminalizing a cultural practice. The campaign of FGM in Kenya seems elusive – on which the US Law seems to perceive and have evaded an age old practice.
    In doing so, the US Law is that it has pegged the illegality of the act to persons under 18 years. So what does that mean? Its only criminal on minors. So the law assumes that no adult in their right mind go for an ‘operation’ of their choice or perhaps it gives room to individual rights to alter their body part including that of the genitals? In this case its okay for adults. FGM Act 1995 leaves another loop hole which Kenyan women from certain communities are adapting to – get the operation done during the birthing process. All in all, I think matters that affect women are not taken seriously – a lot still needs to be done.
    Thank you for the article

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