THE BLOG
06/02/2015 14:42 GMT | Updated 06/04/2015 10:59 BST

Why the Doctor Was Acquitted in the UK's First FGM Trial

The UK must empower women and girls to be free from the harmful effects of female genital mutilation (FGM) by ending this global practice. Prosecuting criminal cases must be seen as part of the package of effort necessary to achieve this. FGM is a global cultural practice where female children are cut, to varying degrees of severity, as part of ceremony into adulthood. There have been international and domestic legal responses but millions of women and girls are still cut every year and there have only been a handful of prosecutions. Doctor Dharmasena was acquitted on the 4th of February 2015 after a trial in the UK in which he was accused of "restoring" FGM after the victim had given birth. Essentially what the poor woman was left with was a hole not a vagina which was what she had before her baby and at any time is pretty horrific. The trial revealed some appalling negligence by the health authority in terms of training and procedures and the case demonstrates how difficult it is to use FGM law to assert gross negligence by a doctor. Grossly negligent surgery is usually dealt with in civil proceedings for clinical negligence. It follows that, although there was a prima facie case, the result of the criminal trial is not unexpected as it is difficult for a jury to be sure beyond a reasonable doubt that the doctor acted with criminal fault.

There remains a remarkable lack of knowledge of FGM amongst health professionals. A recent adoption case also exposed the lack of experience of FGM experts in giving clear evidence at court. These cases are therefore fraught with difficulty. Clearly the target for prosecutions is really the back street cutters and those who conspire to have female children cut but the issues are complex. Children are often cut when they are too young to be able to give meaningful evidence and are often from otherwise loving parents so it is not always in the child's best interests to remove them and prosecute. Such crimes need to be detected and prosecuted but more importantly FGM must be prevented. Whilst the case of Dr Dharmesena may not have been the best choice for a first prosecution, at least it sends a message to failing health authorities to use FGM specialist midwives to make sure mutilated women are left as comfortable as possible after giving birth and to help those same women to avoid the pressure to have their children mutilated.

The issue of FGM is currently hugely topical. The recent EU Council Conclusions on preventing and combating Violence against Women, including FGM made recommendations to the Member States and the European Commission, on all aspect of a comprehensive policy to end violence against women, that is on prevention, prosecution, protection of women, and service provision. It also calls on all EU Member States to sign and ratify the Istanbul Convention (Council of Europe Convention on preventing and combating violence against women and domestic violence). The Conclusions want to create consistency by calling on EU agencies as well as EU external policies to tackle violence against women as a priority. The Conclusions state that violence against women and other forms of gender-based violence constitute "a breach of the fundamental right to life, liberty, security, dignity, equality between women and men, non-discrimination and physical and mental integrity1 and refrains women and girls from their full enjoyment of human rights, and in this context sexual and reproductive health and rights, in accordance with the Beijing Platform for Action and the Programme of Action of the International Conference on Population and Development". The Council of Europe Convention on preventing and combating violence against women and domestic violence entered into force on 1 August 2014 after over 6 decades of international Declarations, Conventions and other legal obligations applicable to the UK to combat FGM . In the UK there has been prohibitive legislation in place for 3 decades and still not one successful prosecution. Thanks to the Bar Human Rights Committee, where I was on the working party, there are now legal proposals in the UK for civil protection orders in relation to FGM and mandatory reporting along with further protection for migrant children that ought to help stop FGM happening in the first place. FGM is a crime. It is child abuse. The procedure has no health benefits for girls and women. It survives because of the strong roots it has in various cultures and because of multiple false beliefs.

Underlying all the explanations given by the countries where the practice still occurs, however, is another reason: the control of a woman's sexuality and her reproductive functions. Families and individuals continue to perform it because they believe that their community expects them to do so. They further expect that if they do not respect the social rule, they will suffer social consequences such as derision, marginalization and loss of status. Amnesty International has referred to FGM as 'an attempt to confer inferior status on women by branding'. This is in part a battle for women's self-determination which requires effective criminal justice until advanced protection of women and girls from abuse by education and health care can be effective. Article 24(3) of the UN Convention of the Rights of the Child is mandatory for all signatories and is not limited to the making of laws. It requires all effective measures so that legislative measures must be accompanied by education, training and understanding. This includes doctors. Children have died from FGM and gross negligence manslaughter is a crime so, if the message is received by other doctors, there may be some comfort from the acquittal of Dr Dharmesena that in the context of tackling FGM, things will have to change.