Female Genital Mutilation Offences and Defences in NSW

Sahar Adatia and Jimmy Singh.

Two women, aged 23 and 50, have been charged over allegedly plotting the female genital mutilation of a two-week-old baby in Perth’s south.

Child Abuse Squad detectives charged the women after an investigation they carried out, which was instigated following a report of an alleged planned circumcision of a female baby as part of their “cultural beliefs”.

It is understood that in January 2021, the two women approached a doctor to conduct the female genital mutilation procedure on the two-week-old female baby.

The doctor refused to carry out the procedure and instead reported the matter to authorities.

On Friday 12 March, the women, who are from an undisclosed suburb in the Cannington Police District – which includes Bentley, Queens Park, Rossmoyne, Shelley and Willetton – faced the Armadale Magistrates Court.

During the hearing, Magistrate Steven Malley described the matter as a serious offence.

Magistrate Malley also dismissed the women’s request to regain custody of the baby, saying it would be like “putting [the baby] back into the lion’s den”.

The child was instead put in the care of Child Protection authorities.

The pair was charged with conspiracy to commit an indictable offence.

They will reappear at the court on April 20.

Western Australia Police Force Releases Statement Advising It Embraces Diversity However Female Genital Mutilation is an Offence in Western Australia

Since the investigation, WA Police Force has released a statement informing that while it supports the diversity that comes with the numerous cultural groups of the community, female genital mutilation remains an offence in the state.

“The WA Police Force embraces the diversity provided by the many cultural and ethnic groups that form our community,” authorities said.

“Practices which may be acceptable by some cultures and in some countries may constitute criminal offences in Western Australia.

“It is an offence to commit female genital mutilation in Western Australia.”

In fact, across Australia, procedures that detach part or all of the external female genitalia or cause injure to female genital organs for non-medical reasons are illegal.

If the women are found guilty, they could each face a sentence of up to 10 years in jail.

2020: Roughly 53,000 Women Living with Female Genital Mutilation Across Australia

In 2020, it was found that around 53,000 women were living with female genital mutilation across the nation.

These procedures included those of partial or total removal of the external female genitalia, or other injury to female genital organs carried out for non-medical reasons, such as the pricking of the clitoris or the stitching of the labia majora.

Meanwhile, according to estimates from the United Nations, around the world, at least 200 million girls and women have had female genital mutilation procedures, which commonly took place when they were between the age of one and 15.

While female genital mutilation is often undertaken for cultural reasons, research shows it has no health benefits – if anything, it can instead cause enduring physical and psychological issues to a person.

According to Western Sydney University researcher and antenatal care expert, Dr Olayide Ogunsiji, for most women, the first time they realise they have been “circumcised” or “cut” is when they fall pregnant.

“At the moment, it is pretty much at the antenatal care clinic that this is coming to light,” Dr Ogunsiji says.

As a result of the finding, antenatal clinicians have been instructed by the New South Wales Department of Health to ask women about female genital mutilation in their first appointment.

Nevertheless, Dr Ogunsiji believes health workers are not trained properly in how to have an effective conversation around the topic with these women.

Dr Ogunsiji has consequently called for midwives and other health care practitioners to be better trained at detecting patients and treating them.

In Australia, the practice of female genital mutilation is illegal and those caught performing the procedure can face up to 21 years in jail.

Despite this, researchers believe within some communities, the practice still manages to be carried out.

Female Genital Mutilation Offences and Defences in NSW

 In NSW, section 45(1) of the Crimes Act 1900 deals with the prohibition of female genital mutilation.

According to this section, female genital mutilation is an offence and carries a maximum penalty of 21 years in jail where a person:

– 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.

Defences to Female Genital Mutilation Practices

Section 45(3) also makes clear that it is not an offence to perform a surgical operation if that operation:

• is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or
• is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or
• is a sexual reassignment procedure and is performed by a medical practitioner.

Additionally, it should be noted that in determining whether an operation is necessary for the health of a person, as per section 45, only matters relevant to the medical welfare of the person are to be taken into account.

An “authorised professional” refers to a registered midwife, or midwifery student, or in relation to an operation performed in a place outside Australia – a person authorised to practise midwifery by a body established under the law of that place having functions similar to the functions of the Nursing and Midwifery Board of Australia, or a medical student.

A “medical practitioner” – in relation to an operation performed in a place outside Australia – includes a person authorised to practise medicine by a body established under the law of that place having functions similar to the Medical Board of Australia.

A “medical student” is defined as a person who is registered as a student within the meaning of the Health Practitioner Regulation National Law (NSW) in the medical profession, or – in relation to an operation performed in a place outside Australia – a person undergoing a course of training with a view to being authorised to be a medical practitioner in that place.

Have a question? call our criminal lawyers Sydney branch to arrange a consultation today.

Print