Drafting Laws Criminalizing Harmful Practices

last updated June 2010

The criminalization of harmful practices may have an important deterrent effect.  However, in many countries where the harmful practices discussed in this asset are prevalent, harmful practices have either only recently been criminalize or are still not criminalized.  
 
When criminalizing harmful practices, it is important to consider the following:   
  • Does law enforcement have enough resources and capacity to appropriately implement the new criminal laws. If not, how will this be addressed?
  • Do customary laws support or contradict such legislation? If contradictory, refer to Resolving Conflict with Customary and Religious Laws section above and ensure that supremacy of constitutional or national law protections provisions is clearly stated in the new legislation. 
  • Has awareness-raising has been conducted within the community to ensure that members are aware of the harmful consequences of the practice, the need to abandon it, and the fact that the practice will be criminalized under the new law. 
  • Is there approval within the community to allow a victim to take legal action against other community members who may be the perpetrators of the harmful practice?
  • Would implementing a criminal law disproportionately affect and/or alienate one ethnic group? 
  • Will the way in which the new criminal offense be implemented be in the best interests of the girl child? This is particularly important considering that many harmful practices, such as female genital mutilation or breast ironing, are perpetrated by or supported by the victims’ parents or care-takers, and criminal penalties such as long jail sentences may have significant effect on the interests of the child victim.   
Criminalization can take place by either enacting a law specifically prohibiting the practice, as was done with FGM in Senegal, or through the use of general criminal law provisions that assign penalties for various actions including the specific harmful practice at issue, as was done in France with FGM. Governments choosing the latter must make special efforts to educate the public that what was legal one day could result in criminal prosecution the next. 
 
In any event, legislation criminalizing specific harmful practices should only be enacted with a corresponding broader governmental strategy to change the underlying social customs and individual beliefs in which these practices are so deeply entrenched. 
 
General Considerations for Imposing Penalties or Sanctions
  • Legislation should provide a clear definition of the harmful practice it is addressing. 
  • Legislation should “provide for effective sanctions against anyone who condones or participates in any ‘harmful practice’, including religious, customary, community and tribal leaders and health professionals, social services providers and education system employees.” See:  Good Practices on Harmful Practices Expert Group Report
  • Legislation should include sanctions against religious, customary and tribal leaders if they promote or endorse the perpetration of a harmful practice on a women or girl.
  • Legislation should include sanctions against medical professionals who have become perpetrators of harmful practices such as female genital mutilation and pre-natal sex selection. 
  • Legislation should penalize parents or family members who perpetrate or aid and abet the harmful practice. 
  • Legislation should provide for penalties of prison time, fines and education.  
  • Legislation should require that sentencing guidelines reflect the gravity of the offense. 
  • Legislation should provide for enhanced penalties if a victim dies as a result of a harmful practice. The perpetrator should be prosecuted under the murder statutes of the penal code. The specific law on the harmful practice should provide a term of imprisonment and fine which is no less severe than what is provided under the murder statutes of the general penal code, with the exception of capital punishment. 
  • Legislation should provide for the principle of extraterritoriality in protecting women and girls from harmful practices that are committed abroad, and allow for extradition of perpetrators of harmful practices. For example, Sweden not only prohibits female genital mutilation within its borders, but also punishes any person residing in Sweden who participates in the female genital mutilation in another country that allows the practice. See: Sweden: Act (1982:316) on Prohibiting the Genital Mutilation (“Circumcision”) of Women, sec. 3:
    Anyone who has committed an offence under the terms of this Act is to be sentenced in a Swedish court of law, even if Chapter 2 Sections 2 or 3 of the Penal Code(describing the limited circumstances in which Swedish courts can prosecute, under Swedish law, crimes committed outside the Realm of Sweden) … are inapplicable. 

Clear Definitions of Harmful Practices
Drafters should ensure that the prohibited harmful practices as well as the categories of people who may be liable or responsible under the law are clearly defined in the law. 

Broad Liability
Legislation should provide for broad liability against those who condone, endorse, participate in or perform a harmful practice including family members, traditional and religious leaders, doctors and other person perpetrating the harmful practice. Legislation should take the following into account:
Aiding and Abetting
Legislation should provide that accomplices who aid and abet the perpetration of harmful practices shall be punished in the same manner as the practitioner of the harmful practice.  Legislation should define “accomplice” to include:
  • those who bring a girl or woman to the individual who performs the harmful practice;
  • those who request the practice to be performed or assist, advise, or procure support for anybody to carry out the practice;
  • religious, customary and tribal leaders who promote or endorse harmful practices against a woman or girl; and
  • parents or other family members who perpetrate or aid and abet the perpetration of a harmful practice.  

Prohibition of Medicalization
Certain harmful practices, such as female genital mutilation and prenatal sex selection, are increasingly being perpetuated by medical practitioners. Drafters should recognize that having these procedures completed by a medical practitioner does not legitimize the harmful practice or make it safer. Harm still results and the underlying discrimination against women is perpetuated. Medical personnel should be explicitly prohibited from performing these and other harmful practices and should face enhanced penalties and loss of their license for performing a harmful practice.

  • Legislation should prohibit the medicalization of any form of harmful practice. 
  • Legislation should explicitly state that there is no medical benefit to harmful practices and prohibit medical professionals from conducting any form of harmful practice.   
  • Legislation should provide for increased penalties for health providers who perform a harmful practice and the practitioner shall be prohibited from practicing his or her profession for a period of time.
  • Legislation should explicitly prohibit the medical sector from re-infibulation or “re-closing” a woman after childbirth to her pre-delivery infibulated state. 

The European Parliament resolution of 24 March 2009 on combating female genital mutilation in the EU (2008/2071(INI)), Para 25:

Urges firm rejection of pricking of the clitoris and medicalisation in any form, which are being proposed as a halfway house between circumcision and respect for traditions serving to define identity and which would merely lead to the practice of FGM being justified and accepted on EU territory; reiterates the absolute and strong condemnation of FGM, as there is no reason—social, economic, ethnic, health-related or other—that could justify it.

In addition, both Burkina Faso and Senegal increase penalties for medical professionals who practice FGM:

Burkina Faso Penal Code, Art. 381

The maximum punishment shall be meted out if the guilty party is a member of the medical or paramedical profession. Moreover, he or she may be disbarred from practice by the courts for up to five years.

Penal Code of Senegal (27.02.1999), Art. 299 bis

… The maximum punishment shall apply when [the] sexual mutilations have been practiced or facilitated by a member of the medical or paramedical profession….

The Pre-Natal Diagnostic Techniques (PNDT) Act of 1994 (and amendments) in India was enacted to curb the growing trend of diagnostic techniques being misused to facilitate sex selective abortions. The Act prohibits and penalizes medical practitioners or any person who owns a Genetic Counseling Centre, a Genetic Laboratory, a Genetic Clinic, or is employed in any such Centre, Laboratory or Clinic from using pre-natal diagnostic technology to determine and disclose the sex of a fetus. 

Punishment of Parents or Family Members
Parents or family members are frequently the perpetrator of harmful practices. Parents often perform or seek out a practitioner to perform female genital mutilation on their daughters. In the case of breast ironing, it is often the mother who performs the act in an effort to keep her daughter from looking like she is entering puberty. Punishment or sanctions should include parents and family members who aid and abet in the harmful practice. However, consideration should be given first and foremost to the best interests of the child. Prison sentences, large fines, or long separations may have a serious impact on the child.  

Legislation should provide for criminal liability of parents, family members and others who:

  • Perform a harmful practice;
  • Instruct, incite, support or otherwise aid and abet others in subjecting a woman or girl to a harmful practice; and/or
  • Fail to report the risk or occurrence of a woman or girl being subjected to a harmful practice.

The section on Female Genital Mutilation contains examples of country laws that provide for liability for parents and family members who perform or aid and abet an act of female genital mutilation.

However, some countries in their sentencing policies and practice focus on the “the best interests of the child” as the guiding principle when assessing criminal liability for parents who procure female genital mutilation for their daughters. Imposing long prison sentences may cause a greater burden for the child. Other penalties may be sought for parents in those cases. France, for example, has prosecuted parents for obtaining female genital mutilation for their daughters, but generally criminal penalties have not been assigned. Instead, the most severe penalties have been imposed on the practitioner while parents received a lighter or suspended sentence and served little or no jail time.

Efforts should be made to change the underlying beliefs that perpetuate harmful practices and empower girls, women and their families to resist the societal pressures to pursue such harmful practices.

CASE STUDY: Example of Punishment of Parents - France
The French criminal court (Cour d’Assises) has prosecuted several cases of FGM since 1991 under Article 222. In 1999, France prosecuted a Malian woman named Hawa Greou for performing FGM on 48 girls. The court also prosecuted 26 parents who brought their daughters to Hawa Greou for the procedure.   Greou received a prison term of eight years, and the parents received terms ranging from a three-year suspended sentence to two years in prison. BBC, World: Europe: Woman Jailed for 48 Circumcisions, 17 February 1999. http://news.bbc.co.uk/2/hi/europe/281026.stm

CASE STUDY: Example of Punishment of Parents - Denmark
In 2009, a Danish County Court charged the parents of three girls under section 245A of the Danish Criminal Code. The parents were prosecuted for bringing two daughters to Sudan for a female circumcision and for intending to bring a third daughter to be circumcised. The father was acquitted but the mother was convicted and sentenced to two years in prison. The court, however, suspended 1 year and 6 months of the two year sentence with a period of three years probation and required the mother to pay compensation to each of the three daughters. United Nations Secretary-General’s Database on Violence against Women, First Case Regarding Female Genital Mutilation, 2009. http://webapps01.un.org/vawdatabase/searchDetail.action?measureId=30477

Extraterritoriality and Extradition

  • Legislation should prohibit the practice of taking girls out of a country where a harmful practice is illegal to a country where the practice is allowed.
  • Legislation should provide that persons who commit a harmful practice or procure, aid or counsel another who is not a resident of the country to commit the harmful practice outside of the borders of their country shall be pursued, prosecuted and punished.
  • Drafters should not require that the harmful practice be a crime in the country where it was committed in order to be able to prosecute individuals for behavior related to the harmful practice.  
  • Drafters should allow for extradition of perpetrators of harmful practices. 
  • Drafters should review diplomatic protocols to ensure that victims have access to consular assistance in third countries. Drafters should ensure that policies governing diplomatic assistance to dual nationals heed the country of habitual residence or greatest ties rather than defer to notions of state non-responsibility.

The following examples include principles of extraterritoriality and extradition in legislative language protecting women and girls against female genital mutilation. They can also be found within the section on Female Genital Mutilation:

European Parliament Resolution on Female Genital Mutilation (2001/2035(INI)), Para. AA, 11
The European Parliament . . . [c]alls on the Member States . . . to pursue, prosecute and punish any resident who has committed the crime of female genital mutilation, even if the offence was committed outside its frontiers (extraterritoriality).

New Zealand: Crimes Act 1961 No. 43, sec. 204B - Further offences relating to female genital mutilation

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent that there be done, outside New Zealand, to or in relation to any child under the age of 17 years (being a child who is a New Zealand citizen or is ordinarily resident in New Zealand), any act which, if done in New Zealand, would be an offence against section 204A [defining the offence of FGM],—
(a) causes that child to be sent or taken out of New Zealand; or

(b) makes any arrangements for the purposes of causing that child to be sent or taken out of New Zealand.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who, in New Zealand, aids, incites, counsels, or procures the doing, outside New Zealand, in relation to any person who is a New Zealand citizen or is ordinarily resident in New Zealand, of any act which, if done in New Zealand, would be an offence against section 204A, whether or not the act is in fact done.

(3) Every one is liable to imprisonment for a term not exceeding 7 years who, in New Zealand, incites, counsels, procures, or induces any person who is a New Zealand citizen or is ordinarily resident in New Zealand—
(a) to submit, outside New Zealand, to any act which, if done in New Zealand, would be an offence against section 204A; or

(b) to acquiesce in the doing, outside New Zealand, on that person, of any such act; or

(c) to permit any such act to be done, outside New Zealand, on that person,— whether or not, in any case, the act is in fact done.
United Kingdom Female Genital Mutilation Act 2003, Sec. 3 and 4
3. Offence of assisting a non-UK person to mutilate overseas a girl’s genitalia
(1) A person is guilty of an offence if he aids, abets, counsels or procures a person who is not a United Kingdom national or permanent United Kingdom resident to do a relevant act of female genital mutilation outside the United Kingdom.

(2): An act is a relevant act of female genital mutilation if—
(a) it is done in relation to a United Kingdom national or permanent United Kingdom resident, and

(b) it would, if done by such a person, constitute an offence under section 1
[definition of the offence of FGM].
4. Extension of sections 1 to 3 to extra-territorial acts
(1) Sections 1 to 3 extend to any act done outside the United Kingdom by a United Kingdom national or permanent United Kingdom resident.
Canadian Criminal Code, sec. 273.3

(1) No person shall do anything for the purpose of removing from Canada a person who is ordinarily resident in Canada and who is …
…( c ) under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section . . . 268 [criminalizing excision] . . . in respect of that person.
Victoria, Australia: Crimes Act 1958, Sec. 33 - Offence to take a person from the State with the intention of having prohibited female genital mutilation performed

(1) A person must not take another person from the State, or arrange for another person to be taken from the State, with the intention of having prohibited female genital mutilation performed on the other person.

Penalty: Level 4 imprisonment (15 years maximum).

(2) In proceedings for an offence under subsection (1), proof that-
(a) the accused took the person, or arranged for the person to be taken from the State; and

(b) the person was subjected, while outside the State, to prohibited female genital mutilation-
is, in the absence of proof to the contrary, proof that the accused took the person or arranged for the person to be taken from the State with the intention of having prohibited female genital mutilation performed on the person.

Promising Practice: Norway – New rules for entering into marriage outside Norway
Norway promulgated new rules governing marriages outside of Norway when at least one of the spouses is a Norwegian citizen or permanent resident. A marriage that takes place outside of Norway will not be recognized in Norway if:
  • One of the parties is under the age of 18 at the time of the marriage;
  • The marriage is entered into without both parties being physically present during the marriage ceremony, e.g. a marriage by proxy or telephone marriage; or
  • One of the parties is already married.
If any of these factors are present, the couple may be denied family reunification to live in Norway. Conditioning validity of the marriage on the spouses’ ages at the time of marriage, rather than at the time of the application for family reunification, is an important safeguard against child marriages. The rules are available in Norwegian, English, Somali, Sorani, Arabic and Urdu.
Diplomatic Protocols
Drafters should review diplomatic protocols to ensure that victims have access to consular assistance in third countries. Drafters should ensure that policies governing diplomatic assistance to dual nationals heed the country of habitual residence or greatest ties rather than defer to notions of state non-responsibility. Women and girls who possess dual citizenship are particularly at risk of being denied access to consular assistance. A State Party to the Convention on Certain Questions relating to the Conflict of Nationality Laws (1930) is barred from offering “diplomatic protection to one of it nationals against a State whose nationality such person also possesses” (Art. 4). Drafters whose states have ratified this convention may find it deters assistance to victims of harmful practices such as forced marriage who have been removed from their country of residence to another country of nationality for purposes of forced marriage. Drafters should take note of commentators’ view that the principle articulated in Article 4 is premised on the outdated doctrine of non-state responsibility; dominant and effective nationality principles provide that, regardless of dual nationality, the state to which the person has the greatest connection may offer diplomatic protection.  See: Sara Hossain and Suzanne Turner, Abduction for Forced Marriages, Rights and Remedies in Bangladesh and Pakistan, Int’l Fam. L., April 2001 (noting that commentary in the Explanatory Report of the European Convention on Nationality provides that a state may offer diplomatic protection to one of its nationals who holds dual nationalities).

States offering diplomatic protection to victims of harmful practices, such as forced marriage, in other countries must ensure appropriate guidelines and trainings are in place for consulate officials. Recommendations include: providing appropriate guidelines to consulate officials, in particular regarding assisting dual nationality holders and not contacting relatives in the country of residence; training for consulate staff on women and girls’ human rights; establishing a database to monitor forced marriage cases; developing an intervention protocol modeled on child abduction responses; entering into consular agreements with other countries to ensure victims are guaranteed protection. See: Sara Hossain and Suzanne Turner, Abduction for Forced Marriages, Rights and Remedies in Bangladesh and Pakistan, Int’l Fam. L., April 2001, 1-64, pp.15-24.

See: Forced and Child Marriage

Mitigation
Legislation should provide that no form of mitigation shall be allowed as a defense to harmful practices.  The defense of culture, honor or religion should be specifically prohibited.
The following examples address the practice of Female Genital Mutilation:
  • European Parliament Resolution of 24 March 2009 on combating female genital mutilation in the EU (2008/2071(INI)) P6_TA(2009)0161condemns any form or degree of FGM as “an act of violence against women which constitutes a violation of their fundamental rights, particularly the right to personal integrity and physical and mental health, and their sexual and reproductive health” and states that “such violations can under no circumstances be justified by respect for cultural traditions of various kinds or initiation ceremonies.”
     
  • United Kingdom: Female Genital Mutilation Act 2003, Sec. 1 - Offence of female genital mutilation
    (1) A person is guilty of an offence if he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris.

    (2) But no offence is committed by an approved person who performs—
    (a) a surgical operation on a girl which is necessary for her physical or mental health, or

    (b) a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.
    (3) The following are approved persons—
    (a) in relation to an operation falling within subsection (2)(a), a registered medical practitioner,

    (b) in relation to an operation falling within subsection (2)(b), a registered medical practitioner, a registered midwife or a person undergoing a course of training with a view to becoming such a practitioner or midwife.
    (4) There is also no offence committed by a person who—
    (a) performs a surgical operation falling within subsection (2)(a) or (b) outside the United Kingdom, and

    (b) in relation to such an operation exercises functions corresponding to those of an approved person.
    (5) For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual. 

    (Emphasis added.)
  • Victoria, Australia: Crimes Act 1958, Sec. 34A - Exceptions to offences under section 32

    (1) It is not an offence against section 32 [Offence to perform female genital mutilation] if the performance of the female genital mutilation is by a surgical operation which is-
    (a) necessary for the health of the person on whom it is performed and  which is performed by a medical practitioner; or

    (b) is performed on a person in labour or who has just given birth, and for medical purposes or the relief of physical symptoms connected with  that labour or birth, and which is performed by a medical practitioner or a midwife; or

    (c) is a sexual reassignment procedure which is performed by a medical practitioner.
    (2) For the purposes of subsection (1)(a), in determining whether an operation is necessary for the health of a person, the only matters to be taken into account are those relevant to the medical welfare or the relief of physical symptoms of the person.

    (Emphasis added.)

  • New Zealand: Crimes Act 1961 No. 43, sec. 204A (Female Genital Mutilation), Para. 4

    In determining, for the purposes of subsection (3), whether or not any medical or surgical procedure is performed on any person for the benefit of that person's physical or mental health, no account shall be taken of the effect on that person of any belief on the part of that person or any other person that the procedure is necessary or desirable as, or as part of, a cultural, religious, or other custom or practice.

    (Emphasis added.)
Consent
Legislation should provide that consent of any person of any age or by a minor's parent is not a defense to a violation of legislation against harmful practices. The focus of legislation should be on the empowerment of women to reject harmful practices and enabling a shift in the social norms that support harmful practices and pressure women into undergoing them for themselves or others. The practice of FGM, for example, is so entrenched in social norms and expectations that, without a shift in those underlying norms and individual beliefs, true informed consent to undergo FGM for adult women, completely free from undue pressure, is difficult to ascertain.

The following examples address the practice of Female Genital Mutilation:
Sweden: Act (1982:316) on Prohibiting the Genital Mutilation (“Circumcision”) of Women, Sec. 1

An operation may not be carried out on the outer female sexual organs with a view to mutilating them or of bringing about some other permanent change in them (‘circumcision’), regardless of whether consent has been given for the operation or not.

Victoria, Australia: Crimes Act 1958, Sec. 34 - Consent not a defence to a charge under sections 32 or 33:

It is not a defence to a charge brought under section 32 [Offence to perform female genital mutilation] or 33 [Offence to take a person from the State with the intention of having prohibited female genital mutilation performed] to prove that the person on whom the act which is the subject of the charge was performed, or the parents or guardian of that person, consented to the performance of that act.

New Zealand: Crimes Act 1961 No. 43, sec. 204A (Female Genital Mutilation), Para 6
It is no defence to a charge under this section that the person on whom the act involving female genital mutilation was performed consented to that act, or that the person charged believed that such consent had been given.