Part 6: Proposals to Strengthen Protections and Questions
The Scottish Government has developed initial views on strengthening protections, and would welcome views from interested stakeholders on how we should proceed in this area.
Anonymity for victims of female genital mutilation
The justice system in Scotland is generally based on justice being open and accessible. This means cases dealt with through the criminal courts are normally open for members of the public and the media to witness as well as families of those involved in a case. There are however some exceptions that have been made to this where this key justice principle of openness has been set aside to help protect the dignity of those involved in a case and help ensure the best evidence can be given.
It is a long-standing convention in Scotland that alleged victims of sexual offences are not named in the media. This position has been in place for many years and it is very closely adhered to by the media when reporting sexual offence cases. It is not underpinned by legislation and so operates on the basis of a decision made by the media to self-regulate in terms of how they report sexual offence cases.
Separate from this self-regulation, there are statutory provisions that empower the criminal courts to put in place measures to protect the identities of those involved in a case. These provisions are found in sections 271N – 271Z of the Criminal Procedure (Scotland) Act 1995 and are available to the court where either party applies to the court for a witness anonymity order. This requires specific measures to be taken to protect the anonymity of a witness in criminal proceedings, including withholding the name or other identifying details of the witness, the removal or name etc from materials disclosed to the court, the use of a pseudonym by the witness, and the use of screens or modulation of the voice of the witness. These measures are available only where the court is satisfied that it is necessary to protect the witness or another person from real harm; where it is consistent, in all the circumstances, with a fair trial; and if the evidence of the witness is so important that it is in the interests of justice for him or her to testify and he or she would not do so without such an order. The judge is obliged to direct the jury to ensure that the existence of the order does not prejudice the accused.
By contrast to the witness anonymity order, which must be applied for, s47 of the Criminal Procedure (Scotland) Act 1995 provides that (with some exceptions) no newspaper report of any proceedings in a court shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of an person under the age of 18 years concerned in the proceedings either as the accused or a witness.
We consider that the courts have what would appear to be the necessary powers at their disposal to ensure the protection of a victim or complainer's identity in any relevant case. Given that no cases of FGM have ever proceeded to court, we note that this is untested and so while we would propose to keep this under review, the Scottish Government is not persuaded that the introduction of lifelong anonymity is an appropriate action at this time.
Do you believe that a provision for anonymity for victims of FGM should be introduced? Please explain your answer.
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?
Offence of failing to protect a girl from risk of genital mutilation
In the rest of the United Kingdom, if an offence of FGM is committed against a girl under the age of 16, then each person who is responsible for the girl at the time FGM occurred may be liable to conviction. The maximum penalty for this offence is seven years' imprisonment or a fine or both. To be "responsible" for a girl, the person either has parental responsibility (such as mothers, fathers married to the mothers at the time of birth and guardians) and have frequent contact with her, or where the person is aged 18 or over they will have assumed responsibility for caring for the girl "in the manner of a parent"-for example family members to whom parents might send their child during the summer holidays. The requirement for "frequent contact" was intended to ensure that a person who in law has parental responsibility for a girl, but who in practice has little or no contact with her, would not be liable. Similarly, the requirement that the person should be caring for the girl "in the manner of a parent" is intended to ensure that a person who is looking after a girl for a very short period – such as a baby sitter – would not be liable. It is a defence for an accused to show that at the relevant time, they did not think that there was a significant risk of FGM being committed, and could not reasonably have been expected to be aware that there was any such risk; or they took such steps as he or she could reasonably have been expected to take to protect the girl from being the victim of FGM. If evidence is led which raises this defence then the onus is on the prosecution to prove the contrary beyond reasonable doubt.
The Scottish Government considers that there would be a number of challenges in introducing a specific offence in this area. Prosecution of such an offence would be predicated on proving an absence of action where the person could have reasonably acted, which is difficult to prove (as opposed to a specific course of conduct). Noting the social context in which risk of FGM may exist, we are also concerned about a number of adverse consequences in relation to potentially criminalising individuals who do not have the agency to protect girls (as opposed to being held accountable for a proactive course of conduct) and potentially reinforcing the hidden nature of the practice. However, we would welcome views on this.
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? Please explain your answer.
Female genital mutilation protection orders
FGM protection orders (or equivalent) do not currently exist in Scotland. There are a range of civil protection orders available in Scotland, such as interdicts to protect against domestic abuse, and forced marriage protection orders. The Scottish Government is minded to develop and introduce provisions for the creation of Female Genital Mutilation Protection Orders. We think that this would help to improve protections for women and girls at risk. We note that in England and Wales the introduction of FGM Civil Orders appears to have worked well.
The introduction of a civil protection order in respect of female genital mutilation would give the courts in Scotland a power to make an order (an "FGM protection order" or "FGMPO") for the purposes of protecting a girl against the commission of an offence. An FGMPO may contain such prohibitions, restrictions or requirements and such other terms as the court considers appropriate to protect the girl in question. The provisions on forced marriage protection orders in the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011 provide a model to follow.
A number of individuals and organisations could apply for an FGMPO , namely the person who has had or is at risk of FGM; a local authority; or any other person with the permission of the court (for example, the police, a teacher, or a family member). Persons under 18 would be able to apply; and they could do so without a formal need for assistance. Section 2(4A) of the Age of Legal Capacity (Scotland) Act 1991 provides that "a person under the age of sixteen years shall have legal capacity to instruct a solicitor, in connection with any civil matter, where that person has a general understanding of what it means to do so; and without prejudice to the generality of this subsection a person twelve years of age or more shall be presumed to be of sufficient age and maturity to have such understanding." Applications would be made to the Sheriff Court and the Scottish Government would develop guidance to support those wishing to apply. There would be no court fee in relation to applying. A Business Regulatory Impact Assessment is being developed and this will set out consideration of the costs involved in setting up and running such a system.
Each FGMPO would be specific to the individual case. The conditions within the orders could vary, but might include the following (this list is non-exhaustive):
- that the person causing the risk does not take the person to be protected abroad with the purpose of committing or attempting to commit FGM
- that the person causing the risk does not enter into any arrangements in the UK or abroad for FGM to be performed on the person to be protected
- that the person causing the risk surrenders their passport or any other travel documents and/ or the passport of the person named in the application.
An application to vary, extend or discharge (end) a FGMPO at a later time could also be made. Legal aid would be available for applicants for FGMPOs, subject to the usual criteria.
If the conditions in the FGMPO are not followed this would constitute a breach and would be a criminal offence. The maximum penalty for breaching an FGMPO would be set with in legislation and likely to mirror the penalty for breaching forced marriage protection orders (which is in the case of convictions without a jury, up to 12 months in prison, a fine of up to £5000, or both; and in the case of a conviction with a jury, up to 5 years in prison, an unlimited fine, or both.
Do you think that the Scottish Government should introduce Female Genital Mutilation Protection Orders? Please explain your answer.
What do you think the penalty should be for breach of a FGMPO?
Duty to notify police of female genital mutilation
In England and Wales, regulated health and social care professionals and teachers are required to report cases of FGM in girls under the age of 18, which they identify in the course of their professional work, to the police. In Scotland, agencies should respond to FGM using existing child and adult protection structures, procedures and policies, including multiagency arrangements. There are sections in guidance on reporting covering a range of agencies.
The Scottish Government considers that there are a number of challenges in relation to introducing such a duty in Scotland. We are mindful of the importance of not inadvertently placing barriers in the way of those who would seek to access support services but be dissuaded from doing do in the knowledge those services have a duty to report to the Police. We are not sure that introducing such a duty would support a policy objective whereby someone who has experienced FGM has access to support, and we think that services would be better to focus on this rather than notifying the Police. We note that child protection procedures are already in place for those under 16 and would expect that these would be activated in the event of FGM being identified by a professional. However, we would welcome views on this.
Do you think the Scottish Government should introduce a duty to notify Police of FGM? Please explain your answer.
Guidance about female genital mutilation
In November 2017, the Scottish Government published "Responding to Female Genital Mutilation (FGM) In Scotland - Multi Agency Guidance". This guidance provides a framework within which agencies and practitioners can develop and agree processes for working collaboratively and individually to promote the safety and wellbeing of women and girls and supplements agencies and organisations own policies and procedures on FGM. It covers how to identify whether a girl (including an unborn girl) or young woman may be at risk of FGM; how to identify a girl or woman who has undergone FGM; how to protect those at risk and support those already affected; and how to prevent and end FGM. The current guidance is not statutory.
The Scottish Government is minded to make provision for Scottish Ministers to issue statutory guidance about the effect of any provisions of this Bill, any provisions of the 2005 Act or about any matter relating to FGM. Any person to whom the guidance was given and who was exercising a statutory function would have a duty to have regard to such guidance when exercising that function. The guidance would only be able to be made by Ministers after they had consulted with relevant stakeholders.
The effect of the duty to 'have regard' would be that the public bodies subject to it would have to take the guidance into account in their processes and decision making in this area, and have good reasons should they decide to depart from it.
The purpose and content of the guidance would be similar to that published in November 2017, but by placing it on this particular form of statutory footing we believe that it will better ensure that public bodies work effectively together to ensure that women and girls are protected.
Do you agree that the Scottish Government should issue statutory guidance for professionals in relation to female genital mutilation? Please explain your answer.
Using existing non-statutory guidance as a basis, what should be covered by statutory guidance?
Vaginal elongation (also known as labia stretching) is the act of lengthening the labia minora (the inner lips of the female genitals) through manual manipulation (pulling) or physical equipment (such as weights). It is a familial cultural practice in parts of Africa and a body modification practice elsewhere. It is performed for sexual enhancement of both partners, aesthetics, symmetry and gratification. It has been compared to Female Genital Mutilation, and some stakeholders have provided anecdotal evidence of it taking place in Scotland. We are not currently persuaded of the need to include specific protections in this area, but would welcome views along with any evidence of whether this practice is taking place in Scotland.
Do you consider that additional protections need to be introduced in Scotland in respect of the practice of vaginal elongation? Please explain your answer.
Do you have any evidence to suggest that individuals in Scotland have been subject to the practice of vaginal elongation?
Breast ironing, also known as breast flattening,is the pounding and massaging of a pubescent girl's breasts, using hard or heated objects, to try to make them stop developing or disappear. It is typically carried out by the girl's mother who will say she is trying to protect the girl from sexual harassment and rape,to prevent early pregnancy that would tarnish the family name,or to allow the girl to pursue education rather than be forced into early marriage. It is mostly practiced in parts of Cameroon, where boys and men may think that girls whose breasts have begun to grow are ready for sex. Some reports suggest that it has spread to the Cameroonian diaspora. As with vaginal elongation, some stakeholders have provided anecdotal evidence of it taking place in Scotland. We are not currently persuaded that we would wish to include protections in this area, but would welcome views along with any evidence of whether this practice is taking place in Scotland.
Do you consider that additional protections need to be introduced in Scotland in respect of the practice of breast ironing? Please explain your answer.
Do you have any evidence to suggest that individuals in Scotland have been subject to the practice of breast ironing?
Cosmetic genital piercings
Women can seek to obtain cosmetic genital piercings for various reasons. The mandatory reporting practices introduced in England and Wales mean that health services will seek to record cosmetic genital piercings as a form of FGM, to identify where this has been done in an abusive context. Cosmetic genital piercings are not prohibited under FGM legislation, but neither is it explicitly exempted from requirements to record and report. Recognising the complexity of this issue, we are developing our views on how to best reflect this going forward.
Do you have views in relation to the place of cosmetic genital piercings in relation to protections and guidance?
In relation to the issues covered within this consultation, are there any other points you would wish to make that are not already included under other answers?