Amendment to Female Circumcision/ Female Genital Cutting (FGC) article in Penal Code: A positive development lacking enforcement mechanisms and allows doctors to evade punishment
The undersigned organizations welcome the most recent amendments to the Penal Code to include a precise definition of the crime of female genital cutting (FGC) and extend the the statute of limitation to ten years. The organizations nevertheless stress that enforcement mechanisms remain lacking and that the amended provisions still allows doctors and medical institutions to evade punishment.
Recently, several amendments were introduced to the FGC/ FC article in the Penal Code, article 242(bis) now reads as follows:
While showing due regard for Article 61 of the Penal Code and without prejudice to any harsher penalty prescribed in another law, a prison term of no less than five years and no more than seven years shall be levied against anyone who circumcises a female, namely, by partial or total removal of the external genitalia or causing injury to the genitalia without medical justification.The penalty shall be hard imprisonment if the act results in a permanent disability or if it leads to death.
A new article, Article 242(bis)(a) was also added, which reads:
A term of imprisonment of no less than one year and no more than three years shall be levied against anyone who seeks the circumcision of a female and a circumcision is performed pursuant to his request as set forth in Article 242(bis) of this law.
Most amendments to the Penal Code tend to stiffen penalties. In the case of FGC, the sentence for the principal offender, whether doctor, medical worker, midwife, or otherwise, increased from a maximum two years imprisonment to five to seven years in prison. This trend of stiffening the penalties has been used among successive governments in their attempts to address problems of sexual violence, although stiffening penalties in and of itself has proved to be a failed punitive philosophy when it comes to crimes committed against women in general. Nevertheless, making FGC a felony instead of a misdemeanor will extend the statute of limitation to ten years instead of three which will give girls the opportunity to report the crime themselves years after the incident itself when they become more aware of what they experienced.
The undersigned organizations welcome a response to their demand to make the death or permanent disability of the victim as the result of female circumcision an aggravating circumstance. Absent such a provision, the law has allowed doctors who caused the death of girls by performing FGC to be charged with accidental killing and thus evade just accountability for their crimes.
At the same time, we are disturbed by the decision to retain the reference to Article 61, which runs counter to recommendations from rights and feminist organizations and also the version of the bill submitted by the Health Ministry. Article 61 exempts offenders from punishment if they undertook the procedure as necessary to protect the self or another from grave harm. This gives principal offenders ready-made grounds on which to evade punishment, by arguing that the circumcision was necessary to save the girl’s life or was medically necessary, although there is no medical basis for FGC.
More positively, the new amendments offer a definition of FGC, in contrast to the old version of the article that offered no definition and simply referred to two other articles in the Penal Code (Articles 241 and 242) on misdemeanor assault. The new legal definition of the crime of female circumcision is the partial or full removal of or injury to the external genitalia without a medical basis. While this definition is consistent with that of the World Health Organization, it ignores the fact that Egypt has experienced the unprecedented medicalization of the procedure. That is, it is much more frequently performed by doctors who claim it is a response to a purely health or physiological problem. The legislator should have included the sentence of the WHO definition in the law to state, “It has no health benefits and harms girls and women in many ways.”1
It is clear, then, that the trend to stiffen penalties for FGC is confused. On one hand, it suggests a desire to more harshly punish offenders; on the other, the retention of the reference to Article 61 and the mention of medical necessity without extending the definition as suits the local context suggests a contrary desire to protect the perpetrators of female circumcision.
Also notable is the complete lack of any clear enforcement mechanisms. The amendments offer no means to resolve the lack of reporting of FGC, especially in light of heavier penalties for family members, which will make them refrain from reporting FGC, even in cases of death or serious complications, where they could face additional penalties. In addition, the government did not respond to demands from the undersigned organizations to expand legal liability to include administrators of hospitals and medical institutions where FGC is performed if they are proven to have had knowledge of the crimes and did not report them. Finally, the amendments were not paired with a social campaign to familiarize the public with the law and the changes introduced and to encourage them to report clinics where FGC is performed.
The undersigned organizations believe that in fighting FGC, the government should make it a priority to raise families’ awareness and encourage them to abandon FGC, while also increasing the regulation of and accountability for offenders.
To this end, the undersigned organizations urge the government to:
Adopt, with the Doctors’ Syndicate, a code of ethics to foster the syndicate’s role in enforcing ethical accountability for doctors who commit this crime.
Enact an intensive training program with the goal of fostering the regulatory role of health inspectors to detect clinics and hospitals that practice female circumcision, which is generally well known among most local residents of the area. The role of health inspectors should not be limited to detecting cases of death resulting from circumcision; it should be more preventive and regulatory.
Adopt a rights-based approach for a national campaign against FGC that focuses on the right of women and girls to equality and a safe, satisfying sexual life.
Better involve civil society institutions in the development of national anti-FGC campaign messages and the development of mechanisms to enforce the law.
Universalize comprehensive sexuality education curricula in schools to include materials that combat various forms of physical and sexual violence in the public and private spheres, such as harassment, rape, FGC, and battery, and that promote the values of citizenship and gender equality and non-discrimination.
-The Egyptian Initiative for Personal Rights
-The Egyptian Foundation for Advancement of Childhood Condition
-The Egyptian Coalition on Children Rights
-Al Nadeem Center for Rehabilitation of Victims of Violence
-Center for Egyptian Women's Legal Assistance
-Tadwein Gender Research and Training Center
-New Woman Foundation
1 See the WHO definition at: http://www.who.int/topics/female_genital_mutilation/en/.