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Female genital mutilation in Canada and the limits to criminalization

Human Rights

Female genital mutilation (FGM) is a harmful, and at times life-threatening, practice that violates the human rights of girls and women. Photo by Meeri Koutaniemi.

COVID-19 has disrupted the global efforts to end the practice of female genital mutilation, or FGM, an internationally recognised form of violence against women and of child abuse. While some progress has been made in recent years, millions of girls around the world remain at risk.

Equality Now’s recent report, FGM: A Global Response, indicates that Canada is one of only two Western countries (the other being New Zealand) where the risk of FGM is high among certain populations, but only anecdotal evidence of the practice exists. There is insufficient statistical data and analysis of the number of girls at risk, the number of survivors, or the prevalence of the practice.

All forms of FGM have been prohibited in Canada since an amendment was made to the Criminal Code in 1997. Any person conducting, aiding or abetting FGM for non-medical reasons faces up to 14 years of prison and/or a fine. The amendment also prohibits taking a child outside the country for the express purposes of FGM. In the last two decades there has not been a single prosecution for the criminal offense of FGM in Canada.

Multiple studies conducted over the years have collected evidence of FGM within Canadian borders. The Canadian Border Services Agency has stated that “It is almost certain” that practitioners of FGM are entering Canada to engage in the activity. Interviews with survivors, who are cut in Canada or in their country of origin, have shared the culture of silence on the issue. The Canadian federal government has estimated that a few thousand girls are at risk of undergoing the procedure since Canada has sizeable populations of diaspora communities from countries where FGM is known to be practised. Reports by organisations such as Sahiyo have shared the lived experiences of women living in Canada who have undergone FGM in Canada. According to a preliminary study, approximately 100,000 survivors of FGM live in Canada and thousands of young girls are at risk. And yet there have been zero prosecutions and no justice.

Why prohibition doesn’t work

Canada’s response to FGM to date has been to criminalize the harmful practice, and rightly so. However it is not nearly enough to meaningfully address the issue.

FGM is a crime with deep rooted patriarchal origins predominantly perpetrated by the survivor’s family, if not by physically conducting the act, then by aiding and consulting. Most girls are cut with a family member present when they are children (6-7 years of age) and there is no chance of meaningful consent or full understanding of the implications of the trauma.

Filing a complaint against a family member, or putting them through the criminal justice system is not an easy decision or a viable option for most women. Most marginalised communities grow up fearing the state’s authority too. Numerous studies show that women hesitate to file a complaint against their abusive intimate partner or other perpetrators of family violence. There is a real fear of being ostracised from the community, of violent reprisals as well as an unwillingness to hurt close relatives. Criminalizing FGM has led to no movement towards justice because it is relying on a system that will convict those closest to the survivor.

Maryam Sheikh, an activist and a survivor who came to Canada from a Somali community in Kenya to protect her daughter from FGM, believes that, “There are always two people at the heart of the FGM discussion: a child at-risk and a woman, a survivor, who requires services. The core focus should be child protection and services for survivors.”

FGM redress is a complex issue. The foremost barrier to addressing this systemic harm lies in the culture of silence around it. Communities that practice FGM do not discuss it openly, and it is often difficult to find out when the act is being performed.

Further, making arrests and criminally prosecuting members of a racialized community (a diaspora that includes people from Africa, Southeast Asia, and India) is problematic because of the history of racism and violence in the Canadian criminal justice system. The potential of abuse and disproportionate use of power against racialized members of a community who practise FGM is a significant factor which can deter survivors from reporting or filing complaints.

A carceral approach leading to imprisonment cannot be rolled back once the criminal process begins. Survivors of FGM are not a homogenous group and the forms of justice that they seek are not all based on punitive measures but also on other forms of intervention such as support for a family fleeing cutting, educational efforts, and a supportive health care system. There is no evidence, moreover, that arrests⁠—as opposed to peaceful intervention⁠—have reduced the incidence of FGM. Police officers can be educated about FGM, but structural racism and socioeconomic bias may affect the way they treat immigrant parents.

While racism in Canada is prevalent, political action against the practice of FGM could also be seen as an expression of racism by actors who do not recognize it as a human rights violation but regard it, rather, as a tradition to be maintained. On account of these nuances in the politics of FGM, the discourse has to be led by survivors within their own cultural reality; they must become the force behind change. To realise that goal of community-led activism, the Canadian government can only enable and provide the tools of change, namely data, resources and a policy framework developed in consultation with survivors.

Canada’s obligations to combat FGM

Canada is signatory to over 20 major international human rights treaties. Early treaties do not explicitly mention FGM, but major treaties such as the International Covenant on Economic, Social and Cultural Rights oblige Canada to recognize the rights of all human beings to the “highest attainable standard of physical and mental health.” The Committee on the Convention on the Elimination of Discrimination against Women (CEDAW), a legally binding treaty, specifically recommended that governments devise health policies that take into account the needs of girls and adolescents who may be vulnerable to FGM.

In the last review process for Canada in 2016, the CEDAW committee expressed concerns over the lack of information on harmful practices such as FGM and recommended that the Canadian government systematically collect disaggregated data on harmful practices in Canada and make information on ways to combat such practices widely available.

Provisions of the CEDAW state that signatories “should take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.”

FGM certainly cannot be tolerated in the name of culture and tradition, which has long been the cover for misogyny and subjugation of women.

If not arrest, then what?

Without sufficient data, however, it is difficult to raise awareness and lobby for resources both within the affected communities and in the broader society. Information-gathering is key to exposing the scope of the problem and to shaping policy and approaches to intervention.

Farzana Doctor, a psychotherapist, author and a survivor based in Toronto, agrees: “Canada needs a National Action Plan to prevent FGM/C and to support survivors, but how many of us are there? With such a silenced and taboo subject, we need the government to collect data so we can understand the prevalence of this problem.”

That is a necessary step to educating health practitioners, police officers and shelters that may be called upon to intervene, and to building awareness of the problem within and outside affected communities. Ending FGM begins with a cultural shift involving a reconsideration of longstanding customs. Like such practices as dowries, forced marriages, and honour killings, it is deeply entrenched. To create systemic change we need to go beyond arrests and prisons. We need data and information to empower survivors, and thus pave the way for survivor networks to work with government, advocates, doctors, surgeons, and mental health counsellors to develop structures of support.

Shivangi works at the Feminist Alliance for International Action in Ottawa. She serves on the board of End FGM Canada Network and the Berkeley Centre of Equality and Anti-discrimination Law.

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