Many international instruments (international and regional treaties, UN Resolutions, recommendations and general comments of treaty monitoring bodies) firmly condemn FGM as a violation of human rights. It violates the right of the child as well as of women and girls to equality, to life, to physical and mental integrity, to the highest attainable standard of health, to security of the person, and dignity, to be free from gender discrimination and from violence, torture, cruel, inhuman and degrading treatment.
In all EU Member States, there are either specific criminal laws or other provisions through which FGM can be prosecuted. In the majority of them the principle of extraterritoriality is applicable, allowing for the prosecution of cases of FGM performed outside the country, which is the majority of cases. However, despite the solid legal framework, few FGM cases are prosecuted in Europe. The reasons for this vary, and are linked to the specificities of national laws, to difficulties in finding evidence or even in identifying cases. As mentioned above, professionals in contact with children are often insufficiently informed and trained about FGM. There are few programmes targeted at teachers, social workers and paediatricians, and FGM may not be reported due to an inappropriate application of professional confidentiality and misjudging the nature of FGM (i.e. not considering it, as should instead be the case, to be child abuse).
In Italy, a specific penal provision relating to FGM (Law no. 7/2006) was adopted in 2006. Furthermore, Articles 583bis and 583ter of the Criminal Code prohibit the execution of all forms of MGF, including clitoridectomy, excision, infibulation and any other practice that causes effects of the same type or mental or physical illnesses (EIGE - European Institute for Gender Equality, 2013). It applies the principle of extraterritoriality, whereby FGM is a punishable offense even if committed outside the country, if the person committing the offense is an Italian citizen or a foreigner residing in Italy, and if surgery is performed on an Italian citizen or person resident in Italy. The penalties are imprisonment from three to twelve years depending on the type of injury caused. The penalty is reduced to two thirds if the injury is minor. The penalty is increased by one third when FGM is committed against a minor or if the offense is committed for profit. The sentence for the healthcare professional for any of the offenses under Article 583-a foresees the additional penalty of disqualification from the profession from three to ten years.
FGM can also fall within the general law protecting minors. Article 330 of the Civil Code refers to removal from the family and suspension of parental custody if the parent’s behaviour threatens the well-being of the minor. In addition, Article 333 of the Civil Code refers to preventive measures in the event of parental conduct prejudicial to the child. In addition to Law n. 172/2012 Italy has ratified the Convention of the Council of Europe for the protection of children against exploitation and sexual abuse (Lanzarote Convention). In relation to the crime of mutilation of female genital organs, the Convention of Lanzarote has introduced the additional punishment of loss of parental authority and permanent exclusion from any office relating to the protection, guardianship and administration support. Despite the comprehensive legal framework, in the last ten years only one case has been prosecuted – and that resulted in acquittal.
The lack of application seems to be rooted mainly (a) in the lack of the implementation of its basic principles; (b) a lack of coordination among relevant institutions involved in the effective implementation of the Law 7/2006; (c) a lack of funds for the implementation of the Law; (d) the view that the repressive nature of the law and its impact on family relationship is counterproductive or overrides the criminal nature of FGM; (e) the lack of knowledge on the part of child protection officers and prosecutors about FGM and/or relevant legal provisions. Therefore, there is a need for the revision of the provisions of Law 7/2006 which have been identified as obstacles to its implementation; for advocacy on FGM among parliamentarians / members of relevant commissions for the full application of the basic principles of Law 7/2006 and the development of mechanisms and allocation of funds facilitating its implementation; for training and information for relevant stakeholders dealing with children. Italy has developed good practices in tackling the problem of GBV against children, empowering mothers to end GBV, to rescue the relationship with their children and to establish or re-establish their role as parents with full capacity and authority to make decisions on behalf of their children.
As recommended also in the Commission to the European Parliament and the Council “Towards the elimination of female genital mutilation” (COM 2013(833)), the issue of the best interest of the child has been considered of primary concern throughout criminal proceedings in Italy, where it has been interpreted as aiming at preventing a child from being doubly victimised, first by being subjected to FGM and then by being removed from parental care.
In Belgium, the Child Protection Law, including preventive and protective procedures, can be applied in cases of FGM. Referred cases concerning a possible risk of FGM can be followed up by visiting the family, counselling them on the issue, and informing them that the practice is illegal in Belgium and that legal action will be taken if an offence is committed. Where the health, security or morality of an underage female are endangered by the behaviour of parents or guardians, law-enforcement authorities may request the intervention of the youth court, based on Article 36.2 of the Child Protection Law. Article 458 bis of the Penal Code states that each professional bound to secrecy has the right – but not the duty – to report minors at risk or subjected to FGM to prosecuting authorities. Since 2012, this right to report was extended also to vulnerable adults. Until now, however, no cases have been brought to court, no child protection interventions have been initiated nor has a case of performed FGM been reported.
The obstacles to the implementation of the law derive from a variety of factors, among which:
(a) lack of knowledge among child protection officers, both about FGM and about the law;
(b) lack of knowledge of FGM among prosecutors;
(c) the fact that child protection action is taken only when there is undeniable and tangible proof of the child being in imminent danger, something which is difficult to assess if based simply on the fact that a child leaves for holiday; (d) the view that the repressive nature of the law will have a negative impact on family ;
(e) the lack of acknowledgment that mothers are often victims of FGM and GBV themselves, and are not in a position to effectively protect their daughters;
(f) cultural relativism (“Responding to Female Genital Mutilation in Europe”, ICRH). Therefore, among others, there is a need to provide training and information and to develop instruments for child protection officers to deal with families at risk of FGM and revising measures to increase the efficacy of the law.
France does not have a specific law on FGM, but FGM is punishable under Art 222-9/10 of the penal code, which refers to violent acts that result in a mutilation or permanent damage. Art. 226-14 of the penal code concerning professional confidentiality stipulates that it does not apply when FGM on a minor is concerned. France is considered a good example in Europe on implementation of the law, and since the 1980s the majority of FGM cases prosecuted in Europe have been prosecuted in France (Female Genital Mutilation in Europe: An analysis of court cases. European Commission, 2016).
represents a “best practice” with the majority of FGM cases prosecuted in Europe. The French jurisprudence has applied the egalitarian principle according to which the individual, when subject to the law, is not connected to social, cultural or religious characterization.