The Criminalization of FGM in the United States
Responding to: Female Genital Cutting: The Michigan Case and Beyond
By: Ranit Mishori
August 8, 2017
EDITOR'S NOTE: Rebecca Reingold, O'Neill Institute for National and Global Health Law; Kevin FitzGerald, S.J., Pellegrino Center for Clinical Bioethics; and Samantha Wu, Pellegrino Center for Clinical Bioethics, contributed significantly to this essay, which is part of a larger project examining FGM/C in the context of clinical practice, ethics, and the law. The team's work on FGM/C has been made possible by a Complex Moral Problems grant from Georgetown University.
The female genital mutilation/cutting (FGM/C) case unfolding in Michigan has shown us that we were blissfully ignorant about the reality of this practice in the United States.
Yes, we knew about the women who had been cut elsewhere before migrating: we’ve seen them in clinics and hospitals. We had some anecdotal information about "vacation cutting"—situations where girls and young women, often born and raised in the United States, are sent to their home country to visit with family and have the procedure done there.
A few random cases of parents performing this practice in the United States made the news here and there in the past 10 to 15 years. But until the Michigan case, in which U.S.-trained physicians allegedly performed FGM/C on more than a 100 girls, we really had few authenticated instances where this practice occurred in our own backyards—and little data about who is actually undergoing and doing the cutting on U.S. soil.
Solid statistics on the prevalence and practice of FGM/C in the United States are difficult to obtain because it is illegal to perform FGM/C here, and therefore when it happens, it is done in secrecy.
In 1996 a federal law was passed making the practice of FGM/C illegal and establishing penalties of fines and imprisonment for “not more than 5 years, or both” for perpetrators. In 2013 a travel provision was added making it unlawful to “knowingly transport a girl out of the United States for the purpose of inflicting FGM.” More than 20 states have their own FGM/C laws, mostly banning the procedure, some addressing vacation cutting as well.
Recently, and partly in the wake of the Michigan case, we have seen state-level attempts to introduce new bills with harsher penalties for perpetrators and accomplices (that is, mainly parents), for example in Texas, Maine, and Minnesota. In the Washington, D.C., region, a bill (SB 1060) was introduced earlier this year in the Virginia legislature calling for the establishment of a separate criminal penalty for FGM/C as well as a civil cause of action that would permit a survivor to sue for damages.
The DC-MD-VA area is featured in a 2015 CDC and Population Reference Bureau study which sought to estimate the prevalence of this practice in the United States. Forty percent of the at-risk population (an estimated 513,000 women and girls), the study says, live in five metro areas, with the Washington, D.C., area being number two behind New York, and ahead of Minneapolis-St. Paul, Los Angeles, and Seattle.
To be clear, FGM is unacceptable and should be abolished and regarded as a punishable offense, a crime, and a serious human rights violation. Legislation is an important tool in efforts to end FGM/C. However, to speed the demise of the practice, a broad approach is essential and hasty efforts to enact harsh legislation are unlikely to help.
We worry that anti-Islam, anti-refugee, and anti-immigrant sentiments are behind some of the state-level attempts to introduce new policies. Aggressive enforcement and harsh penalties could further alienate refugee and immigrant communities that are already under stress in the current political discourse. Communities where FGM/C is a traditional practice might perceive new legislation as coercive, fueling resentment. Harsh penalties might deter rather than empower survivors and girls at risk to come forward because of fear of the consequences to loved ones. Would girls be expected to turn their parents or grandparents in? Report on their neighbors? Their friends? This is especially true for those who are immigrants who may fear deportation.
Long experience in addressing the FGM/C phenomenon worldwide highlights the need to involve affected communities in framing solutions. Communities commonly believe they are acting in the best interests of girls, and education and legislation and law enforcement need to proceed in tandem.
From the medical sector’s perspective: It can be difficult for clinicians working with communities where FGM/C is practiced to gain trust, to encourage continuity of care, and to develop a therapeutic alliance with some patients. A climate where patients can openly discuss this issue with their doctors is important. Mandatory reporting could undermine trust.
In short, we argue for a comprehensive, community-based, and culturally aware approach to ending the practice of FGM/C. Affected communities, including victims, need to be involved. Legislators should consult with the communities they are trying to help—with women who have undergone FGM/C or with representatives of the many anti-FGM/C service and advocacy community-based organizations in the United States.
Criminalizing FGM/C should go alongside preventive and protective measures. Ideally legal measures would also ensure access to comprehensive support services, including medical, psychological, and legal assistance. Laws addressing specifically the FGM/C issue should encourage processes that provide confidential information and counseling, by trained professionals, to women and girls who have been cut (for example, a 24-hour helpline). Public education about the practice in the community and school system and for those responsible for enforcing the law is vital.
We call on state legislators to pause and consult, engaging with stakeholders (survivors, clinicians addressing FGM/C in the community, and community-based groups) to avoid unintended consequences and to speed the end of the practice.
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July 12, 2017
By: Mariya Taher