The Criminalisation of a Cruel Tradition: An Analysis of the Crimes (Female Genital Mutilations) Act (New South Wales), 1995

Australian Feminist Studies

Volumn 11, Issue 24, 1996, Pages 277-293

  Dixon, Kyla ^a  

^a NONE

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EID: 0030522229     PISSN: 08164649     EISSN: None     Source Type: Journal    
DOI: 10.1080/08164649.1996.9994825     Document Type: Review

References (100)

1. K. Engle, 'Female Subjects of Public International Law: Human Rights and the Exotic Other Female', New England Law Review, 1992, pp. 1510-11.
2. Female genital mutilation has been practiced for approximately 2000 years, R Abdalla, Sisters in Affliction - Circumcision and Infibulation of Women in Africa (Zed Press) London, 1982, p. 3. The Family Law Council states that the practice is generally accepted as having pre-dated Islam, Christianity and other major religions, Family Law Council Report, Female Genital Mutilation, June 1994, p. 24.
3. Female genital mutilation has been practiced for approximately 2000 years, R Abdalla, Sisters in Affliction - Circumcision and Infibulation of Women in Africa (Zed Press) London, 1982, p. 3. The Family Law Council states that the practice is generally accepted as having pre-dated Islam, Christianity and other major religions, Family Law Council Report, Female Genital Mutilation, June 1994, p. 24.
4. Female genital mutilation is practised in more than 40 countries, including 27 African countries, the southern part of the Arab Peninsula and the Persian Gulf. There is evidence that it is practised by some people in India, Indonesia, Malaysia and Brazil, A.T. Slack, 'Female Circumcision: A Critical Appraisal', Human Rights Quarterly, no. 10, 1988, p. 443. Interestingly, a form of clitoridectomy was practised in the United States, Britain and Europe during the second half of the nineteenth century as a 'cure' for female masturbation and insanity, S. Armstrong, 'Female Circumcision: Fighting a Cruel Tradition', New Scientist, 2 February 1991, p. 24.
5. Female genital mutilation is practised in more than 40 countries, including 27 African countries, the southern part of the Arab Peninsula and the Persian Gulf. There is evidence that it is practised by some people in India, Indonesia, Malaysia and Brazil, A.T. Slack, 'Female Circumcision: A Critical Appraisal', Human Rights Quarterly, no. 10, 1988, p. 443. Interestingly, a form of clitoridectomy was practised in the United States, Britain and Europe during the second half of the nineteenth century as a 'cure' for female masturbation and insanity, S. Armstrong, 'Female Circumcision: Fighting a Cruel Tradition', New Scientist, 2 February 1991, p. 24.
6. Family Law Council Report, Female Genital Mutilation, p. 11.
7. N. Toubia, Female Genital Mutilation: A Call for Global Action (UN Working Group on Traditional Practices) 1993, p. 11.
8. Note, 'Female Circumcision', Lancet, 12 March 1983, p. 569 cited in Family Law Council Report, Female Genital Mutilation, p. 11.
9. Note, 'Female Circumcision', Lancet, 12 March 1983, p. 569 cited in Family Law Council Report, Female Genital Mutilation, p. 11.
10. Armstrong, 'Female Circumcision', p. 22.
11. V. Mak, 'Female Genital Mutilation: A Tradition of Pain', Healthsharing, Winter/Spring 1993, p. 12.
12. A study by Marie Assaad of the American University of Cairo conducted in 1979 found that 12 per cent of female genital mutilations were performed by physicians, 53 per cent by traditional midwives, 12 per cent by barbers and less than 5 per cent by nurses, cited in Armstrong 'Female Circumcision', p. 22.
13. The age when girls are genitally mutilated varies from shortly after birth until after the woman has reached adulthood and given birth to her first child, Abdalla, Sisters in Affliction, p. 11.
14. Family Law Council Report, Female Genital Mutilation, p. 8.
15. R. Morgan cited in K. Magarey and E. Evatt, 'Genital Mutilation: A Health and Human Rights Issue', Australian Development Studies Network Briefing Paper No. 18, 1990, p. 2.
16. Family Law Council Report, Female Genital Mutilation, p. 17.
17. Olayinka Koso-Thomas, 'The Circumcision of Women: A Strategy for Eradication' cited in Magarey and Evatt, 'Genital Mutilation', p. 2.
18. There are four main motives for the mutilation of female genitals: psycho-sexual, religious, sociological and hygiene/aesthetics, E. Dorkendoo and S. Elworthy, 'Female Genital Mutilation: Proposals for Change', Minority Rights Group International, 1992, pp. 13-15.
19. Family Law Council Report, Female Genital Mutilation, p. 9.
20. Cited in D. Smith, 'Painful Truth About Female Circumcision', Sydney Morning Herald, 3 December 1993, p. 11.
21. An interesting parallel to female circumcision is the ancient practice of foot binding which occurred in China. Foot binding was also said to increase the male's sexual pleasure and was used to control women's sexuality. Because of their deformed feet, women were unable to move about freely in society, and, therefore, unable to socialise with men. The tenderness and vulnerability of the feet served as a constant reminder of the woman's inferiority, Slack, 'Female Circumcision', pp. 481-3.
22. 'The Cutting Edge', SBS Television, 29 June 1993.
23. Cited in Family Law Council Discussion Paper, 31 January 1994, pp. 25-6.
24. Doctors in the Sudan have estimated that the number of fatalities due to infibulation is about one third of all girls in areas where antibiotics are not available. Death due to female genital mutilation is one of many factors contributing to the high infant mortality rates in these countries. For example, Somalia, which has one of the highest percentages of circumcised women in the world, has the world's fourth highest infant mortality rate, Slack, 'Female Circumcision', p. 451.
25. A. Funder, 'De Minimis Non Curat Lex: The Clitoris, Culture and the Law', Transnational Law and Contemporary Problems, no. 3, 1993, p. 435.
26. Studies conducted in the Sudan found that almost all infibulated women questioned reported significant problems in urinating. The average period of time it takes an infibulated woman to urinate is 10-15 minutes, Family Law Council Report, Female Genital Mutilation, p. 21.
27. Difficulties in childbirth occur quite frequently due to scarring and hardened tissue blocking the passage at birth. Delayed births are common and there can be brain damage and death of the baby because of lack of oxygen, Slack, 'Female Circumcision', p. 454.
28. Many young girls bleed to death because clumsy operators have cut into their pudenal artery or the dorsal artery of the clitoris. The clitoral artery supplies blood to the clitoris and its surroundings.
29. Some girls have died of post-operative shock because operators did not know how to revive them and they were too far away from a clinic or hospital to seek help.
30. Magarey and Evatt, 'Genital Mutilation', p. 2.
31. R. Hedley and E. Dorkendoo, Child Protection and Female Genital Mutilation, Foundation for Women's Health Research and Development, 1992, p. 9.
32. 'The Cutting Edge', SBS, 29 June 1993.
33. There is great difficulty in obtaining accurate research data on the sexual experiences of mutilated women because the majority are reluctant to speak on the subject at all. Nevertheless, one study conducted in Egypt in 1985 indicated that about eight times as many non-mutilated women experienced sexual excitement from stimulation of the clitoris/clitoral area than did the mutilated women, M. Badawi, 'Epidemiology of Female Sexual Castration in Cairo, Egypt', The Truth Seeker, July/August 1989, p. 32.
34. Cited in Dorkendoo and Elworthy, 'Female Genital Mutilation', p. 13.
35. H. Lightfoot-Klein, 'Pharaonic Circumcision of Females in the Sudan', Medicine and Law, no. 2, 1983, p. 357.
36. Slack, 'Female Circumcision', p. 456.
37. Slack, 'Female Circumcision', p. 456.
38. Cited in Armstrong, 'Female Circumcision', p. 23. It is assumed that the women who experienced sexual intercourse before clitoridectomy/excision were not circumcised as young girls, but underwent the operation later in life.
39. Cited in Dorkendoo and Elworthy, 'Female Genital Mutilation', p. 9.
40. F. Hosken, The Hosken Report: Genital and Sexual Mutilation of Females, 3rd edition, 1982, p. 56.
41. K. Boulware-Miller, 'Female Circumcision: Challenges to the Practice as a Human Rights Violation', Harvard Women's Law Journal, no. 155, 1985, p. 167-8.
42. Funder, 'De Minimis Non Curat Lex', p. 434.
43. Engle, 'Female Subjects of Public International Law', p. 1524.
44. D. Fraser, 'Heart of Darkness: The Criminalisation of Female Genital Mutilation', Current Issues in Criminal Justice, no. 6, 1994, p. 149.
45. V. Kirby, 'On the Cutting Edge: Feminism and Clitoridectomy', Australian Feminist Studies, no. 5, 1987, p. 52.
46. Cited in A. Walker and P. Parmar, Warrior Marks - Female Genital Mutilation and the Sexual Binding of Women (Harcourt Brace) New York, 1993, p. 313.
47. Family Law Council Report, Female Genital Mutilation, p. 31.
48. S. Rose, Female Genital Mutilation, NSW Parliament Briefing Note No 003/94, 1994, p. 4.
49. K. Hayter, 'Female Circumcision - Is There a Legal Solution?', Journal of Social Welfare Law (UK), November 1984, p. 325.
50. Cited in 'AMA Call to Outlaw Female Circumcision', Sun Herald, 6 February 1994, p. 3.
51. Funder, 'De Minimis Non Curat Lex', p. 419.
52. Funder, 'De Minimis Non Curat Lex', p. 419.
53. Rose, Female Genital Mutilation, p. 4.
54. Australia ratified this Convention on 17 December 1990. Notably, ratification does not thereby incorporate the rights and obligations in the Convention into Australian law unless and until specific legislation is passed implementing the provisions of the Convention, Dietrich v R (1992) 177 CLR 292, p. 305.
55. The Australian Constitution, s 51 (xxix).
56. Hayter, 'Female Circumcision', p. 326.
57. The Convention on the Elimination of All Forms of Discrimination Against Women was ratified by Australia on 28 July 1983.
58. Family Law Council Report, Female Genital Mutilation, p. 33.
59. Family Law Council Report, Female Genital Mutilation, p. 33.
60. The Family Law Council stated that there did not appear to have been an open inquiry into the incidence of female genital mutilation in Australia at the date of writing the Report, Family Law Council Report, Female Genital Mutilation, p. 14.
61. In Somalia, for example, the Somali Women's Democratic Organisation has launched a public campaign to eradicate genital mutilation. As stated by the Family Law Council, the shroud of secrecy which surrounds the issue can only be fully lifted if women themselves speak out about the practice, Family Law Council Report, Female Genital Mutilation, p. 11.
62. Family Law Council Report, Female Genital Mutilation, p. 12.
63. Family Law Council Report, Female Genital Mutilation, p. 12.
64. Family Law Council Report, Female Genital Mutilation, p. 12.
65. Family Law Council Report, Female Genital Mutilation, p. 12.
66. Media Release, Dr Andrew Refshauge MP, 8 February 1994.
67. A. Horin and M. Wilkinson, 'Racist Backlash Fear on Female Circumcision', National Times, 13-19 April 1980, p. 4.
68. 'Court Monitors Circumcised Girls', Sydney Morning Herald, 1 March 1994, p. 2; T. Pegler, 'Court Hears of Genital Surgery', Sydney Morning Herald, 2 December 1993, p. 4.
69. 'Court Monitors Circumcised Girls', Sydney Morning Herald, 1 March 1994, p. 2; T. Pegler, 'Court Hears of Genital Surgery', Sydney Morning Herald, 2 December 1993, p. 4.
70. Family Law Council Report, Female Genital Mutilation, p. 13.
71. Sections 60 and 61 of the Children (Care and Protection) Act 1987 (NSW) authorises state authorities to intervene where a child is at risk of abuse or ill treatment.
72. Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security (1986) AC 112.
73. Re Marion (1992) 175 CLR 218 at 250.
74. Re Marion (1992) 175 CLR 218 at 239-240.
75. Australian Law Reform Commission, Multiculturalism: Criminal Law, Discussion Paper 48, May 1991, p. 23.
76. C. Refshauge cited in Horin and Wilkinson, 'Racist Backlash Fear', p. 4.
77. ALRC, Multiculturalism, p. 23.
78. Fraser, 'Heart of Darkness', p. 150.
79. Fraser, 'Heart of Darkness', p. 150.
80. Queensland Law Reform Commission Report on Female Genital Mutilation, September 1994, Report No. 47, p. 68-69.
81. Family Law Council Report, Female Genital Mutilation, p. 53.
82. Netherlands Government's Standpoint on Female Circumcision, cited in Queensland Law Reform Commission Report, p. 61.
83. Bill C-126 to amend the Criminal Code and Young Offenders Act received Royal Assent on 23 June 1993.
84. Act 316 of 1982 Prohibiting the Circumcision of Women entered into force on 1 July 1982.
85. The Prohibition of Female Circumcision Act 1985 (UK).
86. s 45 (1) Crimes (Female Genital Mutilation) Amendment Act 1995 (NSW).
87. s 45 (2) Crimes (Female Genital Mutilation) Amendment Act 1995 (NSW).
88. s 45 (5) Crimes (Female Genital Mutilation) Amendment Act 1995 (NSW).
89. M.R. Liverani, 'Law Society Unequivocal on Female Genital Mutilation', Law Society Journal, vol. 32, no. 5, 1994, p. 69.
90. Hayter, 'Female Circumcision', p. 331.
91. A child who is not Gillick competent is one who is not of sufficient intelligence and understanding to make a decision for or against the operation herself, Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security (1986) AC 112.
92. P. Supomo, 'Female Genital Mutilation Act Commences', Law Society Journal, vol. 33, no. 5, 1995, p. 18.
93. See also s70BB(1) Family Law Act 1975 (Cth).
94. Family Law Council Report, Female Genital Mutilation, p. 37.
95. Hayter, 'Female Circumcision', p. 333; see also Slack, 'Female Circumcision', p. 479.
96. Hayter, 'Female Circumcision', p. 333; see also Slack, 'Female Circumcision', p. 479.
97. R. Hill, 'Cut to the Chase', Bulletin, 8 November 1994, p. 49.
98. Recent television programs addressing the subject of female genital mutilation have provided a clear and compassionate portrayal of the complex issues involved in the practice, 'The Cutting Edge', SBS, 29 June 1993; 'GP', ABC, 1994.
99. N. Marshall cited in Hill, 'Cut to the Chase', p. 49. Marshall states that one female participant of the education program whose eldest daughter was circumcised back home has since made a clear decision that her younger girls will not be circumcised.
100. Armstrong, 'Female Circumcision', p. 27.