In a majority decision released today, the High Court of Australia found that a female’s genitals do not need to be ‘render[ed] imperfect or irreparably damaged in some fashion’ for the offence of female genital mutilation to be established.
The judgement overturns a decision of the New South Wales Court of Criminal Appeal (NSWCCA) which found there needs to be such damage for the offence to be made out.
The initial case
The High Court’s decision relates to a case whereby the prosecution alleged that a mother – who cannot be named for legal reasons – a nurse by the name of Kubra Magennis and community leader Shabbir Vaziri were accused of genital mutilation offences in respect of two girls, aged six and seven.
The alleged conduct was essentially that the mother and nurse were part of a ‘joint criminal enterprise’ to perform a ceremony known as ‘khatna’, whereby the nurse ‘nicked’ each girl’s clitoral hood with a sharp implement. Family members were present during the procedures.
Mr Vaziri’s accessorial liability allegedly arose from being the head cleric and spiritual leader of the Dawoodi Bohra community in Sydney – of which the mother and nurse were members – and that he “encouraged… community members to deceive investigators concerning the community’s attitude to female genital mutilation”.
The matters proceeded to a jury trial in the Supreme Court, at the end of which the mother and nurse were each found guilty of two counts of performing female genital mutilation under section 45(1)(a) of the Crimes Act 1900 (NSW).
Mr Vaziri was found guilty of being an accessory to female genital mutilation, under section 45(1)(b) of the Act.
The offences carry a maximum penalty of 21 years in prison.
On 18 March 2016, each accused was sentenced to a full term of 15 months in prison with a minimum term of 11 months.
Mr Vaziri was ordered to serve his sentence by way of full time custody, while the mother and Ms Magennis were granted home detention.
The initial appeal
The trio’s criminal defence lawyers appealed the convictions to the NSWCCA on a number of grounds, including that:
- The procedure did not amount to ‘otherwise mutilates’ under section 45 because there were no physical injuries to the girls, and
- The clitoral hood which was ‘nicked’ is not part of the clitoris within the meaning of the section.
The three presiding justices of the NSWCCA relied on medical reports which stated there was no ‘no injury or damage’ which was ‘more than superficial’ in reaching their finding that the offences could not be proved beyond a reasonable doubt.
On 10 August 2018, their Honours allowed the appeals, quashed the convictions and entered verdicts of acquittal for all three appellants.
The special leave application
The prosecution then made an application to the High Court of Australia for special leave permission) to appeal the decision of the NSWCCA on grounds that the court made errors by:
- Finding that the words ‘otherwise mutilates’ require injury or damage that ‘renders the [labia majora or labia minora or clitoris of another person] imperfect or irreparably damaged in some fashion’, and
- Construing the term ‘clitoris’ as not including the clitoral hood or prepuce.
That application was granted on 15 February 2019.
The High Court appeal
In a 5 to 2 majority decision released today, the full panel of the High Court of Australia found that the term ‘otherwise mutilates’ covers situations where temporary or repairable injury is inflicted on a female’s genitals, and that the definition of clitoris extends to the clitoral hood.
In their leading judgement, Chief Justice Keifel and Justice Keane considered a range of materials including studies from the late nineteenth century, research by the World Health Organisation, a report by the Family Law Council, the Second Reading Speech to the legislation which introduced the offence of female genital mutilation and a number of cases before determining that ‘[a] construction which gives a broader scope to s45 is consistent with its wider purpose’, that such a construction is ‘warranted’, and that the offence is capable of being established where there is an injury ‘to any extent’.
Justices Nettle, Gordon and Edelman essentially agreed with the leading judgement.
But Justices Bell and Gageler disagreed, finding in their joint judgement that:
“The Court of Criminal Appeal was right to hold that superficial tissue damage which leaves no visible scarring and which on medical examination is not shown to have caused any damage to the skin or nerve tissue is not in law capable of amounting to mutilation for the purposes of the provision”.
“It follows that the evidence, including the fresh evidence adduced in the Court of Criminal Appeal, was not capable of supporting the respondents’ convictions for offences contrary to s 45(1)(a) of the Act. This conclusion makes it unnecessary to address the appellant’s second ground of challenge.”
“For these reasons we would dismiss the appeals.”
The case has been referred back to the NSWCCA for determination as to whether the jury’s verdict was unreasonable. And while a retrial would be the usual course of action, Justices Keifel and Keane expressed the view that this may not be appropriate in the present case, as another trial would likely cause further “psychological harm” to the children.
The Offence of Female Genital Mutilation
Female genital mutilation is offence under section 45 of the Crimes Act 1900 which carries a maximum penalty of 21 years in prison. To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:
- Excised, infibulated or otherwise mutilated the whole or any part of the labia majora, labia minora or clitoris of another person, or
- Aided, abetted, counselled or procured another person to do so.
The fact the other person consented is not a defence to the charge.
It is not an offence to perform a surgical operation which causes female genital mutilation where it is done by:
- A medical practitioner and is necessary for the medical welfare of the other person,
- A medical practitioner or authorised professional on a person in labour or who just gave birth and is connected with that labour or birth, or
- A medical practitioner and is a sexual reassignment procedure.
A ‘medical practitioner’ is a person authorised under the law to practise medicine.
An ‘authorised professional’ includes:
- A registered midwife
- A midwifery student, and
- A medical student
A ‘sexual reassignment procedure’ is that which alters the genital appearance to that of the opposite sex.
Duress is a defence to the charge.