Female genital mutilation (FGM) involves procedures which include the partial or total removal of the external female genital organs for cultural or other non-therapeutic reasons.
FGM has been a specific criminal offence in the UK since the passage of the Prohibition of Female Circumcision Act 1985 ("the 1985 Act"). In England, Wales and Northern Ireland, the Female Genital Mutilation Act 2003 ("the 2003 Act") repealed and re-enacted the provisions of the 1985 Act, gave them extra-territorial effect and increased the maximum penalty for FGM. The Female Genital Mutilation (Scotland) Act 2005 ("the 2005 Act") passed by the Scottish Parliament, repealed and re-enacted for Scotland the provisions of the 1985 Act, gave extra-territorial effect to those provisions and increased the maximum penalty for FGM in Scotland from 5 to 14 years' imprisonment. Further, it made additional forms of FGM unlawful, and allowed the Scottish Ministers to modify the procedures which are offences and added offences under the Act to Schedule 1 to the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") (offences against children under 17 to which special provisions apply). Further information on the 2005 Act is at Annex B.
The Serious Crime Act 2015 is a UK wide act, and introduced a number of additional provisions in relation to FGM, only one of which applies to Scotland (section 70). These are as follows:
|Section 70: Offence of female genital mutilation and extra-territorial acts||
Amended sections 3 and 4 of the 2005 Act so that they apply to UK nationals and residents rather than, as was, UK nationals and permanent UK residents. This section made similar amendments to the 2003 Act.
|Section 71: Anonymity for victims of female genital mutilation||
Made provision for the anonymity of victims of FGM, prohibits the publication of any matter that would be likely to lead members of the public to identify a person as the alleged victim of an offence under the 2003 Act as well as aiding, abetting, counselling and procuring the "principal offence". The prohibition lasts for the lifetime of the alleged victim.
|Section 72: Offence of failing to protect girl from risk of genital mutilation||
Creates a new offence of failing to protect a girl under the age of 16 from risk of genital mutilation. A person is liable for the offence if they are responsible for a girl at the time when an offence under section 1, 2 or 3 of the 2003 Act is committed against the girl (and genital mutilation has actually occurred). The term "responsible" covers two classes of person (i) a person who has parental responsibility for the girl and has frequent contact with her; and (ii) any adult who has assumed responsibility for caring for the girl in the manner of a parent. Defences are provided for in that (i) the defendant did not think that there was a significant risk of the girl being subject to FGM and could not reasonably have been expected to be aware that there was any such risk and/or (ii) that the defendant took reasonable steps to protect the girl from being the victim of FGM.
|Section 73: Female genital mutilation protection orders||
Provides that the High Court or the family court in England and Wales may make an order (an "FGM protection order") for the purposes of protecting a girl against the commission of a genital mutilation offence. That it may contain such prohibitions, restrictions or requirements and such other terms as the court considers appropriate to protect the girl in question. A breach of an FGM protection order is a criminal offence, however it may also be dealt with as a contempt of court and carries a potential prison term of up to 5 years.
|Section 74: Duty to notify police of female genital mutilation||
Places a duty on persons who work in a "regulated profession" in England and Wales, namely healthcare professionals, teachers and social care workers, to notify the police when, in the course of their work, they discover that an act of female genital mutilation appears to have been carried out on a girl who is under 18.
|Section 75: Guidance about female genital mutilation||
Confers a power on the UK Secretary of State to issue, and from time to time revise, guidance about the effect of any provision of that Act or about other matters relating to FGM.
At the time of the Act's passage, the Scottish Government and the UK Government agreed a legislative consent motion which amended the 2005 Act in respect of section 70. The Scottish Government indicated that it would consider further whether section 71 to 75 were appropriate for introduction in Scotland.
Following that period of engagement, this formal public consultation sought views on these provisions, as well as whether there are further steps The Scottish Government should be considering that help to strengthen protection for those at risk of FGM.
The Consultation asked the following questions:
1. Do you believe that a provision for anonymity for victims of FGM should be introduced?
2. If anonymity is not introduced and having regard to existing convention and powers of the courts, what further steps do you consider could be taken to ensure protection of victims and complainers of FGM in the Justice system?
3. Do you think that Scotland should introduce an offence so that individuals can be prosecuted if they fail to protect a person they have caring responsibilities for being subjected to FGM?
4. Do you think that the Scottish Government should introduce Female Genital Mutilation Protection Orders? What do you think the penalty should be for breach of a FGMPO?
5. Do you think the Scottish Government should introduce a duty to notify Police of FGM?
6. Do you agree that the Scottish Government should issue statutory guidance for professionals in relation to female genital mutilation?
7. Using existing non-statutory guidance as a basis, what should be covered by statutory guidance?
8. Do you consider that additional protections need to be introduced in Scotland in respect of the practice of vaginal elongation? Do you have any evidence to suggest that individuals in Scotland have been subject to the practice of vaginal elongation?
9. Do you consider that additional protections need to be introduced in Scotland in respect of the practice of breast ironing? Do you have any evidence to suggest that individuals in Scotland have been subject to the practice of breast ironing?
10. Do you have views in relation to the place of cosmetic genital piercings in relation to protections and guidance?