James Reilly (Dublin North, Fine Gael)

I move: "That the Bill be now read a Second Time."

I am pleased to have the opportunity to introduce this Bill to the House. I would also like to thank Senator Ivana Bacik for raising this issue in the Seanad last April and encouraging the Government of the day to commence the preparation of the Criminal Justice (Female Genital Mutilation) Bill 2011.

Female genital mutilation, FGM, is a gross violation of women's human rights and legislation to expressly prohibit it is the first step in ensuring this practice does not take hold in Ireland. The Bill has benefited from consultation with national and international experts in this field and will bring Ireland in line with international best practice as well as providing indisputable legal clarity on the issue. I bring the Bill before the House on the basis that we all share a desire to see an end to this practice worldwide and to prevent it from occurring in our country.

I propose to give some background on the practice of female genital mutilation and the main policy provisions of the Bill. Female genital mutilation is a harmful traditional practice and a form of violence that directly infringes upon women's and children's rights to physical, psychological and social health. FGM is recognised internationally as a gross violation of human rights for girls and women and a form of gender-based violence. The World Health Organisation, WHO, defines FGM as any procedure involving partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons. The WHO estimates that between 100 and 140 million girls and women worldwide have been subjected to some form of FGM and a further 3 million girls are at risk each year. This equates to 6,000 women and girls undergoing FGM daily in the world and there are over 3,000 women living in Ireland who have undergone FGM.

The prevalence, type and age at which FGM is performed varies between and within countries and regions, with ethnicity as the most decisive factor. FGM is known to be performed in at least 28 African, Middle Eastern and Asian countries. Prevalence ranges from nearly 90% or higher in Egypt, Eritrea, Somalia and Sudan, to less than 50% in the Central African Republic and Cote d'Ivoire, to 5% in the Democratic Republic of Congo and Uganda. Increased immigration to Europe has meant that a cultural practice previously associated with the developing world has become an issue, indeed a problem that needs to be overcome in a culturally sensitive manner in European societies, including Ireland. In many cases, families and communities will attempt to continue to practise FGM after moving to Europe as a way of upholding traditional customs.

The rationale for the continuance of FGM varies across regions, countries and cultures. However, in every society in which it is practised, FGM is an expression of gender inequality. In many instances, parents want their daughters to undergo FGM to avoid stigmatisation or social exclusion by the rest of the community. In practising communities, it is strongly believed that a girl is not marriageable if she has not undergone FGM. However, FGM has no health benefits. It involves removing and-or damaging healthy and normal tissue and interferes with the natural function of girls' and women's bodies. Immediate health consequences of FGM can include severe pain, shock, haemorrhage, difficulty passing urine, infection, psychological trauma and sepsis, which can lead to death. Long-term complications include chronic urinary and menstrual problems, chronic pain, pelvic inflammatory disease, cysts, infection, increased risk of HIV transmission and infertility.

FGM also has serious and adverse consequences for mothers and children during childbirth. A WHO study found significant associations between FGM and various types of obstetric complications. The risk to women's and girls' health is invariably aggravated by the use of unsterile equipment, unsanitary environments, lack of any anaesthetic and by the procedure being carried out by unskilled members of the community. In addition to physical health consequences, women who have undergone FGM also report negative psychological and emotional effects.

The main purpose of the Bill is to prohibit FGM, along with providing for related offences, some of which apply to certain extra-territorial jurisdictions. I will set out the specific measures in the Bill, in greater detail, later in this statement. Having a specific Bill prohibiting this practice will bring legal clarity and certainty to the issue. It is likely that female genital mutilation already constituted an offence under the Non-Fatal Offences against the Person Act 1997. However, this Bill leaves no room for doubt and sends the message loud and clear that FGM will not be tolerated in Ireland. Having specific legislation on FGM will also aid social and health care personnel working with practising communities, as they will be able to point to this proposed legislation and the serious punishment for offences relating to FGM in their efforts to prevent the continuation of this custom.

Moreover, we know from NGOs and public health services working with practising communities that the most significant risk of FGM being carried out on girl children living in Ireland arises during visits to countries where FGM is commonly practised. Parents are coming under pressure to have FGM carried out on their daughters upon visiting their country of origin. This Bill aims to address this risk by creating an offence of removing a girl or woman from the State for the purpose of FGM and by introducing an extra-territorial element to its provisions. In addition, the Bill explicitly addresses the cultural imperative of FGM. We all know how important culture can be for a sense of identity and how important being able to share cultural traditions can be, especially among migrant communities. Nevertheless, the freedom to practise one's traditions and beliefs may not supersede the protection of fundamental human rights and freedoms. The Bill stems from a human rights perspective and stipulates that the right to practise cultural traditions cannot be evoked to justify FGM. Finally, the Bill includes several provisions to ensure that victims of this crime are protected during legal proceedings. These provisions reflect the fact that many victims might be minors and proceedings are likely to be against members of their own family.

The Bill was the subject of consideration and discussion in the Seanad. During that debate, I introduced an amendment to the Bill to state explicitly that a victim impact evidence provision would apply to offences set out in the Bill in accordance with the Criminal Justice Act 1993. This provision is reflected in section 13 of the Bill. Two other technical amendments were made in the Seanad to update and reflect changes in the official names of the two State Departments mentioned in section 12(1)(a) and (b) as set out in Statutory Instruments Nos. 246 and 138 of 2011. Furthermore, I have published a supplementary explanatory memorandum that explicitly states that the Bill stems from a human rights perspective and recognises the practice of FGM as a violation of human rights and a form of gender-based violence. In addition, the supplementary memorandum includes the WHO's definition of FGM used in the Bill and stipulates that the right to practice one's cultural traditions and beliefs cannot be used to justify FGM.

Following the Seanad debate I undertook to seek additional advice on the requirement in the Bill for dual criminality. This issue has been considered in some detail by my officials and the Attorney General's Office. The advice confirms that in general, where provision is made for extraterritorial jurisdiction, dual criminality is necessary to satisfy the principal of legality, that is that someone should not be punished for an offence which was not an offence in the jurisdiction in which it took place. Only in exceptional cases are extra territorial offences provided for without a requirement of dual criminality.

Under Article 29.8 of the Constitution, the State may exercise extra-territorial jurisdiction in accordance with the generally recognised principles of international law. Under international law, only offences jus cogens, against the conscience of the world, such as piracy, war crimes and terrorist acts, carry universal jurisdiction. At present, FGM when carried out by a private party is not an international crime and, therefore, dual criminality is required for the exercise of extraterritorial jurisdiction. However, in order to ensure that we would be in a position to prosecute a person who takes a girl to a country where FGM is legal, that is, a case which could not be prosecuted under section 4 because of the requirement of dual criminality, the Bill provides an innovative offence in section 3 - the offence of removal from the State of a girl for the purpose of FGM - to cover such conduct so that the offence provisions in sections 3 and 4, when read together, should cover all of the conduct which ought to be criminalised in relation to FGM. The Bill also meets Ireland's obligations under the Constitution and international law in regard to FGM and dual criminality.

I will now turn to the details of the Bill, as passed by Seanad Éireann. The Bill contains 16 sections. Section 1, the interpretation section, provides for the definition of female genital mutilation and certain other terms used in the Bill. Section 2 criminalises the act of performing female genital mutilation and provides for the offence of attempting to perform an act of female genital mutilation. The offences of aiding, abetting, counselling, or procuring the commission of female genital mutilation are already provided for in the general criminal law Acts on the grounds that a person is liable to be tried and punished where he or she aids, abets, counsels or procures the commission of an indictable offence. Section 5 provides that performing or attempting to perform female genital mutilation is an indictable offence. In a similar vein, the offence of conspiring with another person to perform female genital mutilation is covered by the same general criminal law.

The Bill makes provision for various exemptions to the offence of female genital mutilation. These exemptions are aimed at avoiding the criminalisation of surgical operations required for the protection of the physical or mental health of a girl or woman, or those necessary to assist a woman in labour or after she has just given birth. With respect to this exemption, it is provided that any type of mutilation that is equivalent to female genital mutilation following delivery, such as reinfibulation, also constitutes an offence under these provisions, even where it is done at the woman's request.

A further exemption is made for a girl or woman who self-mutilates, although a person who aids and abets such a girl or woman to perform female genital mutilation on herself may be tried for an offence under the general criminal law. A person is exempt when performing an act on a woman who is over 18 years of age and where there is no resultant permanent bodily harm. Given that we have used the broad World Health Organisation definition of what constitutes female genital mutilation, this final exemption is to avoid making certain forms of genital piercing and cosmetic surgery for aesthetic purposes a criminal act. Section 2(3) precludes the possibility of invoking reasons of custom or ritual – or the consent of the girl or woman herself or her parent or guardian – in any defence to proceedings for the commission of the general offence of performing or attempting to perform an act of female genital mutilation.

Section 3 contains offences that relate to removing a girl or woman from the State for the purposes of performing female genital mutilation on her. This provision reflects the fact that, as mentioned earlier, the greatest risk to female children living in this State arises during visits to their family's country of origin. Subsection (1) makes it an offence for a person to take a woman or girl from the State where one of the purposes of taking her is to perform female genital mutilation on her. A similar offence for attempting to remove her is also created.

Subsection (3) provides that where it can be reasonably inferred that an accused person took a girl or woman out of the country for, among other reasons, the purpose of having female genital mutilation carried out on her and that an act of female genital mutilation was subsequently done to her when she was abroad, there shall be a presumption, unless the contrary is shown, that the accused took the girl or woman out of the State in order to have female genital mutilation performed on her.

Section 4 adds an extra-territorial dimension to the Bill. It provides that if an Irish citizen or a person ordinarily resident in the State commits an offence of performing or attempting to perform female genital mutilation outside the State in a country where it is also illegal, he or she is guilty of an offence. As I have mentioned, this dual criminality provision is included to comply with the requirements of Article 29.8 of the Constitution and with the general principles of international law. Only in exceptional circumstances are extra-territorial offences in criminal law provided for without dual criminality, for example, in the case of war crimes or terrorist offences. The expression "ordinarily resident in the State" is defined as a person who has had his or her principal residence in the State for the period of 12 months preceding the alleged commission of the offence.

Section 5 sets out the penalties for offences committed under sections 2, 3 and 4. It provides for penalties for both a summary conviction and a conviction on indictment. Section 6 provides that proceedings for an offence under the Bill may only be commenced either by or with the consent of the Director of Public Prosecutions. Section 7 is a standard provision of double jeopardy under which a person cannot be proceeded against for an offence under the Bill if he or she has been acquitted or convicted of a similar offence in another country.

Sections 8, 9, 10 and 11 set out measures to protect the privacy of the victim and of the accused person. For this purpose, the Bill incorporates the extensive provisions in the Criminal Law (Rape) (Amendment) Act 1990 with respect to the exclusion of the public from hearings and the measures in the earlier Criminal Law (Rape) Act 1981 with respect to safeguarding the anonymity of the victim.

Section 12 provides for evidentiary matters relating to a person being deemed to be an Irish citizen at the time an offence is alleged to have been committed in any proceedings which refer to an offence under section 4(1)(c) of the Bill, that is, the extra-territorial measures. It also allows for evidence by certificate. Section 13 amends the Criminal Justice Act 1993. This provision allows a victim of a female genital mutilation offence or her representative to make an oral statement, commonly called a victim impact statement, at a sentencing hearing. This amendment is in line with current provisions in regard to other serious crimes against the person.

Section 14 amends the Schedule to the Bail Act 1997. The Schedule lists the offences that are defined as "serious offences" and section 2 of the Bail Act provides for the circumstances in which bail may be refused for such offences. As a result of this amendment, the offences in this Bill that relate to sections 2, 3, and 4 will be added to the Schedule of the Bail Act. I intend to bring forward a technical amendment on Committee Stage to update and correct the sequence number of the reference to this Bill.

Section 15 amends Schedule 1 to the Children Act 2001, inserting the offences relating to female genital mutilation at sections 2, 3, and 4 of the Bill into that Schedule. Finally, section 16 contains the Short Title of the Bill. A standard technical amendment to this section will be introduced on Committee Stage in regard to the timing of the commencement of the Bill.

We in Ireland are in the fortunate position of being able to take a preventative and proactive approach to the prevention of female genital mutilation. We have the opportunity and the duty to protect girls and women in practising communities currently living in Ireland from undergoing this procedure. While legislation alone is never sufficient to tackle a problem of this gravity, the enactment of legislation specifically prohibiting female genital mutilation and including extra-territorial provisions is a vital step in preventing the practice from taking hold in this country. The Bill, if enacted, will act as a powerful deterrent and will potentially empower practising communities living in Ireland to resist pressure from their country of origin to preserve the custom. I commend the Bill to the House and look forward to the debate.

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