Sunday, December 15, 2019

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Article Index

A. United States

1. The Importation of FGM to the United States

Although physicians at District of Columbia General Hospital had their first experiences with FGM in the early 1990s, it was not until 2006 that many in the general public in the United States first heard about FGM. That year, an article in the Atlanta Journal-Constitution told the story of how Mr. Adem, a native of Ethiopia, had circumcised his two-year-old daughter in Georgia. A friend of Adem's held the child down while Adem severed her clitoris with a pair of scissors. Because there was no Georgia legislation in place addressing FGM, Adem was charged with aggravated battery and cruelty to children, found guilty, and sentenced to ten years in prison.

[p799] The Adem case was not the first time someone had been charged in the United States for acts related to FGM, but it was the first case that was widely publicized and discussed in the media. In fact, a FGM “ring” had been discovered in 2004 in California. One man told an undercover officer that he had performed more FGMs than anyone in the Western world. The importance of this discovery and the Adem case cannot be overstated--FGM had found its way to the United States, and it appeared there were many willing clients.

Actual statistics on the occurrence of FGM in the United States are difficult to find for obvious reasons--neither the victims, parents of the victims, or the actual persons who have performed the cutting will report it to authorities. Notwithstanding the lack of hard statistics, it is clear that FGM occurs in the United States because it continues to occur within the same populations within their home countries. In other words, the cultural tradition transcends geographical borders and immigrates along with the people to the new land. Notwithstanding the lack of hard statistics for the actual performance of FGM in the United States, there are an estimated 228,000 girls and women deemed to be “at risk.” This number is based on the states with the largest African immigrant populations.

[p800] Some maintain that the only way to obtain truly accurate numbers on the number of girls and women who have been subjected to FGM in the United States is to perform a physical examination on all of them. Putting aside the difficulty of such an undertaking, this still would not answer the question of whether the FGM was performed in the United States. Another suggestion for getting accurate FGM statistics is to code the birth certificates of mothers who have been cut to keep a record of those who might be more inclined to endorse the procedure for their daughters. Again, such a task is nearly impossible because of the vast coordination of governmental and social agencies it would require, as well as the monetary implications involved in such a large endeavor.

2. The United States Reacts: Enacted Legislation

The United States has made great strides in enacting legislation that deals specifically with the issue of female genital mutilation. Unfortunately, much of the legislation may prove to be merely symbolic. Attempts to obtain statistics on FGM within the United States, which were mandated to be kept by Congress in 1997, proved to be impossible. One could conclude that FGM is not occurring in the United States or that it is in fact occurring, but records are not being kept and the law is being ignored.

a. Federal Legislation

In 1995, the U.S. Congress enacted legislation that made performance of FGM in the United States illegal. Congress followed this by passing a bill which required the Secretary of Health and Human Services to “compile data on the number of females living in the United States who have been subjected to female genital mutilation.”

[p801] Then, in 1997, Congress enacted legislation to make it a crime throughout the United States to circumcise a minor. The applicable statute states: “Whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 shall be fined under this title or imprisoned not more than five years, or both.” The statute also states:

A surgical operation is not a violation of this section if the operation is-- (1) necessary to the health of the person on whom it is performed . . . or (2) performed on a person . . . who has just given birth and is performed for medical purposes connected with that labor or birth . . . .

The statute clearly prohibits exemptions to this law based on religious beliefs or personal convictions. It should be noted that this statute does not apply to adult women. The omission of adult women from the statute may prove to be problematic when familial coercion or some other force is used to compel a woman, who had escaped being cut in her homeland, to undergo FGM before she can marry in her new homeland. Moreover, if a woman is in a questionable position with respect to her immigration status, she may be disinclined to report that she has been coerced into undergoing FGM.

In addition to enacting this criminal statute, Congress directed the Immigration and Naturalization Service to provide information on both the legal and health ramifications of FGM to all aliens who are issued a U.S. visa, and it also directed the Department of Health and Human Services to compile data on FGM in the United States.

It is unclear what the effects of this federal legislation will be. In a time of national financial crisis, when prosecutors' budgets are limited, it is difficult to determine how robust the federal government's prosecution of these crimes will be.

b. State Legislation

Eighteen states have enacted legislation prohibiting FGM. Arkansas, California, Colorado, Delaware, Georgia, Illinois, Maryland, [p802 ] Minnesota, Missouri, Nevada, New York, North Dakota, Oregon, Rhode Island, Tennessee, Texas, West Virginia, and Wisconsin have enacted legislation which closely mirrors the federal law, but there are some distinctions:
• The California law requires certain state agencies to coordinate efforts with their federal counterparts to engage in education, preventive, and outreach activities.

• Colorado mandates that the statutory privilege between patient and physician and between husband and wife shall not be available for excluding or refusing testimony in any prosecution for the violation of the law prohibiting FGM.

• Minnesota requires its health commissioner to create an outreach program to educate targeted communities.

• The New York Act mandates a complete study of the health risks, both physical and mental, associated with FGM. The Act requires the state's Departments of Social Services and the Department of Health to conduct this study.

• Oregon law also requires the creation of programs aimed at education, prevention, and outreach to appropriate communities.

It should be noted this legislation is important for two reasons: (1) by enacting laws prohibiting FGM, states have acknowledged the fact that it is a crime; and (2) states are attempting to both deter and to stop FGM in the United States and abroad. Unfortunately, enforcing FGM statutes does not appear to be a high priority of most states because of [p803] competing needs and limited state budgets. Nonetheless, enacting legislation sends a strong positive message to women around the world and this is a good thing.

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