Criminal Offences Relating to Female Genital Mutilation in NSW
Criminal Offences Relating to Female Genital Mutilation in NSW Sydney Criminal Lawyers
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Prohibition on Female Genital Mutilation in New South Wales
Section 45 of the Crimes Act 1900 contains the prohibition on female genital mutilation in New South Wales, providing that it is an offence for a person to:
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Excise, infibulate or otherwise mutilate the whole or any part of the labia majora or labia minora or clitoris of another person; or
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Aid, abet, counsel or procure a person to perform any of those acts on another person.
The offence carries a maximum penalty of 21 years’ imprisonment.
The fact the person consents to the procedure is not a legal defence, regardless of whether the person is a child or adult.
Similarly, the fact that female genital mutilation is a recognised cultural or religious practice is similarly no legal defence in New South Wales.
The Act does, however, provide for an exception where the procedure is performed by a medical practitioner and is necessary for a person’s health.
The exception may encompass measures related to the process of labour or birth, as well as potentially extending to sex reassignment procedures.
‘Any extent of injury’ amounts to female genital mutilation, including body modification
The High Court of Australia found in the case of Magennis and Vaziri that ‘any extent of injury’ to the genitals of a female can amount to female genital mutilation for the purposes of section 45 of the Crimes Act 1900.
In that case, the six and seven-year old girls’ mother, a nurse and a religious leader were found to be part of a ‘joint criminal enterprise’ to perform a ceremony known as ‘khatna’, whereby the nurse ‘nicked’ each girl’s clitoral hood with a sharp implement. Family members were present during the procedures.
Mr Vaziri’s accessorial liability arose from being the head cleric and spiritual leader of the Dawoodi Bohra community in Sydney – of which the mother and nurse were members – and that he “encouraged… community members to deceive investigators concerning the community’s attitude to female genital mutilation”.
One of the trio’s grounds of appeal to the High Court was that the procedure did not result is an lasting physical injury to the girl’s. However, the Court disagreed finding that a procedure does not need to be lasting or permanent to be captured by section 45.
In subsequent case, and relying on the decision in Magennis and Vaziri, body modification artist Brendan Russell was sentenced to 10 years imprisonment for, amongst more serious charges, excising the labia of a women who sought out his services for body modification purposes.
SDGs, Targets, and Indicators
| SDGs | Targets | Indicators |
|---|---|---|
| SDG 5: Gender Equality | Target 5.3: Eliminate all harmful practices, such as child, early, and forced marriage and female genital mutilation | – The prohibition on female genital mutilation in New South Wales (Section 45 of the Crimes Act 1900) – The maximum penalty of 21 years’ imprisonment for female genital mutilation – The fact that consent to the procedure is not a legal defense – The fact that female genital mutilation is not a legal defense based on cultural or religious practices – The exception for necessary procedures performed by a medical practitioner |
| SDG 3: Good Health and Well-being | Target 3.4: By 2030, reduce by one-third premature mortality from non-communicable diseases through prevention and treatment and promote mental health and well-being | – The exception for necessary procedures performed by a medical practitioner for a person’s health, potentially including measures related to the process of labor or birth and sex reassignment procedures |
| SDG 16: Peace, Justice, and Strong Institutions | Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all | – The prohibition on female genital mutilation in New South Wales (Section 45 of the Crimes Act 1900) – The maximum penalty of 21 years’ imprisonment for female genital mutilation |
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Source: sydneycriminallawyers.com.au
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