Paddy Burke (Fine Gael)
Link to this: Individually | In context

I welcome the Minister for Heath and Children to the Seanad and congratulate him on his portfolio. It is his first time to visit the House and I wish him well.

James Reilly (Dublin North, Fine Gael)
Link to this: Individually | In context

I congratulate the Cathaoirleach and the Leas-Chathaoirleach on being elected to their new positions and the new Senators on being elected to theirs. I look forward to serving with all of them.

I thank Senator Ivana Bacik for raising this important 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. I am very pleased to see the Bill being restored to the Order Paper of the 24th Seanad, as female genital mutilation, FGM, is a gross violation of women's human rights. This legislation which aims to expressly prohibit it is the first step in ensuring the practice will 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. In bringing this Bill before this House, I do so on the basis that we all share a desire to see an end to this practice in Ireland.

Female genital mutilation, FGM, 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 Organization 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 million 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. We know that there are at least 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 Côte d'lvoire, 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. In every society in which it is practised, however, 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.

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. The immediate health consequences of FGM can include severe pain, shock, haemorrhage, difficulty passing urine, infection, psychological trauma, sepsis and 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. HIV transmission occurs because many practitioners of FGM do not sterilise the instruments they use, meaning they could be used on a dozen different girls and women.

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 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 but 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 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 female 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. Officials have been reviewing this area following the publication of this Bill in January this year and further safeguards in this regard will be proposed on Committee Stage.

Turning now to the details of the Bill which contains 15 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 doing female genital mutilation. It also provides for the offence of attempting to do 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 of the Bill provides that doing or attempting to do female genital mutilation is an indictable offence. In a similar vein, the offence of conspiring with another person to do female genital mutilation is covered by the same general criminal law.

Various exemptions to the offence of female genital mutilation are provided for. 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 kind of mutilation that is equivalent to female genital mutilation following delivery, such as re-infibulation, even at the request of the woman , would also constitute an offence under these provisions.

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 do female genital mutilation on herself can be tried for an offence under the general criminal law. Finally, a person is exempt when doing an act on a woman who is over 18 years and there is no resultant permanent bodily harm. Because we have used the broad WHO definition of what constitutes FGM, 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-woman herself or her parents-guardian, in any defence to proceedings for the commission of the general offence of doing or attempting to do an act of FGM.

Section 3 contains offences that relate to removing a girl or woman from the State for the purposes of doing female genital mutilation to her. This provision reflects the fact that the greatest risk to 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 subject her to female genital mutilation, FGM. A similar offence for attempting to remove her is also created. Subsection (3) provides 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 subjecting her to female genital mutilation and that female genital mutilation was indeed subsequently carried out when she was abroad, there shall be a presumption that the accused took the girl or woman out of the State to subject her to female genital mutilation unless the contrary is shown.

Section 4 covers acts done outside the State and adds an extra-territorial dimension to the Bill. This section provides that if a person who is an Irish citizen or a person who is ordinarily resident in the State commits an offence of doing or attempting to do female genital mutilation outside the State in a country where FGM also is illegal, he or she is guilty of an offence. This dual criminality provision is included to comply with the requirements of Article 29.8 of the Constitution and to comply 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 or 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 of this Bill. It provides for penalties for both a summary conviction and a conviction on indictment. Section 6 provides that proceedings for an offence under this 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 this Bill if the person already has been acquitted or convicted of the same 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 governing the exclusion of the public from hearings and the measures in the earlier Criminal Law (Rape) Act 1981 with respect to the provisions that safeguard 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 that an offence is alleged to have been committed in any proceedings that 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 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 bail Schedule. Section 14 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 this Schedule of offences against children. Section 15 contains the Short Title of the Bill.

I emphasise that in Ireland, we are in the fortunate position of being able to take a preventative and proactive approach to female genital mutilation. We have the opportunity and the duty to protect girl children and women from 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 this Bill specifically prohibiting FGM and including extra-territorial provisions is a vital step in preventing female genital mutilation taking hold here. This Bill, if enacted, will act as a powerful deterrent and also potentially will empower practising communities living in Ireland to resist pressure from their country of origin to preserve this seriously damaging custom. I commend the Bill to the House and look forward to the debate.