First Spanish judicial decision on universal jurisdiction for Female Genital Mutilation committed abroad

By Professo Nicolás Zambrana-Tévar, Study Group of Private International Law and Human Rights, University of Navarra

The first Spanish judicial decision sentencing a person for the crime of Genital Mutilation carried out outside Spain was issued last 4 April, 2013 by the Spanish Audiencia Nacional of Madrid.

The Spanish Criminal Code was amended in 2003 (art. 149.2) and a new offense was introduced, namely genital mutilation (male and female). Furthermore, the Spanish jurisdiction statute was amended in 2005 in order to give Spanish courts extraterritorial jurisdiction to allow them to hear cases on Female Genital Mutilation (article 23.4). So far, several cases of FGM have already been heard in Spain but only one has reached the stage of oral proceedings, finishing with a sentence of six years for the father and two years for the mother of the mutilated girl. In December, 2012, the Spanish Supreme Court confirmed the latter sentence issued by the Teruel Court of First Instance. In May, 2013, another couple from Gambia who lived in Vilanova i la Geltrú (Catalonia) was also sentenced to 12 years in prison for having performed FGM or allowed FGM to have been performed upon her two daughters.

Nevertheless, in most cases, the proceedings have been stayed when it was determined that the mutilation had taken place abroad and that the identity of the perpetrator would be very difficult to determine.

In the case to which reference is being made in this post, the mutilation was discovered by a nurse who examined the girl in a hospital in Catalonia. The mutilation had caused “synechia labium minorum” in the girl’s genitals, a congenital condition in which the labia minora are sealed in the midline, with only a small opening below the clitoris through which urination and menstruation may occur. In the trial, the nurse testified that neither the father nor the mother had manifested any surprise when they were told that their daughter had been circumcised. The mother even admitted that she was circumcised herself and that it was normal where they came from. This lack of surprise was accorded a great weight by the tribunal. In addition, the tribunal was of the opinion that, since the girl lived with the mother at the time the mutilation must have taken place, the latter must have performed the mutilation herself or must have consented to someone else performing it. Therefore, she was considered guilty by omission, even if, during the trial, she testified that she did not know who had done that to her daughter and that she was against Female Mutilation herself, in contrast to her lack of surprise before the nurse.

Afterwards, the tribunal considered if it could be said that the mother had incurred in a mistake, given the fact that she had not manifested any signs of having realised the seriousness of her deeds. Still, the tribunal warned that foreigners in Spain cannot shield themselves behind their culture, ideology or religion in order not to respect human rights. Nevertheless, the tribunal reached the conclusion that the mother did not know that female mutilation was either a crime in Spain or outside Spain. However, the tribunal further said that, since the father had been living in Spain for quite some time, he could have informed the mother about Spain’s minimum ethical norms. Therefore, the mistake was not invincible and the woman was condemned to two years (so she will probably not have to go to jail, actually) and to pay ten thousand Euros to her daughter.

Two issues are noteworthy in this case. Could the Spanish rules on universal jurisdiction for female circumcision be against that principle of equality and be, therefore, unconstitutional, for being only applicable to female victims and not to male castration? FGM seems to be regarded by Spanish law as a specific offense, and not simply as a mutilation or injury performed upon a girl or a woman. Is it fair to consider that only women can be the victims of a specific crime? Rape is commonly regarded as a plague suffered by women but Criminal legislation does not treat rape as a “feminine offense”, a crime that can only be committed upon women. Spain was the place of a heated controversy in 2004, when the Government passed a law that punished more harshly men than women, when it was the man the one who injured the woman in a man-woman relationship. The Spanish Constitutional Court, in a 2008 decision, considered that said law was not against the principle of equality before the law nor against the presumption of innocence of the male, because such aggressions were conducted in a situation of intrinsic inequality. There was, too, according to the Constitutional Court, a greater rejection of society towards these kind of offenses. The idea binding the criminalization of FGM and the aforementioned injuries caused by men upon women in a relationship is that women are intrinsically discriminated for being women and that they are in a position of weakness for being women, no matter their social status or their social or cultural background. Contrary to this, males are not given by law such protection, irrespective of their actual cultural, social or economic background. Otherwise said, the fact that a Nepalese boy is castrated in an Indian brothel, does not represent the same kind of sexual discrimination that a Gambian girl circumcised by her family.

On the other hand, was the Spanish tribunal right when it said that the mother’s mistake was not invincible because the father should have warned her about Spanish ethical and legal norms? The way the decision is drafted, it seems that the mother should have asked the father about Spain’s ethical norms, before consenting to the mutilation –even before she knew that the daughter was going to travel to Spain- or that the father’s omission to give the mother information in this regard made the mother guilty. We will have to wait and see if the case is also appealed before the Supreme Court or if more similar cases are brought before Spanish courts.

On 20 December 2012, The UN General Assembly passed Resolution 67/146 where it called upon States in the strongest terms to end this practice, no matter if the mutilation was carried out in or out of a hospital. Prior to this resolution, the 1993 Vienna World Conference on Human Rights agreed that Female Genital Mutilation was a violation of human rights. Ever since 1982, many Western countries have passed legislation in order to ban this horrendous practice and stop it by not allowing persons to be moved out of the country to their country of origin, in order to undergo the operation.

It must be said that a number of anthropological and sociological studies carried out into the issue of FGM have shown that women involved are not necessarily against it and that they see it as a normal ritual of passage into adulthood. It remains to be proved if women’s opposition to be “liberated” is just part of the male dominated culture they supposedly live in. Nevertheless, given the fact that Western opposition to this ritual includes both its practice in the absence of hygienic conditions but also its practice in hospitals, some can be surprised at the fact that other kind of practises such as sex reassignment surgery (male to woman and woman to man) are not only not banned in Western countries but financed by Governments. If FGM as a ritual of passage, carried out under hygienic conditions and with the consent of the parents (and/or, why not?, the girl herself) is still an aggression against the Human Rights of the girl, what can be said about Female (or Male) Genital Mutilation performed for reasons of sexual identity? It may be argued that a minor would not be allowed to undergo a sex reassignment surgery but that is not always the case. Finally, Male circumcision is completely accepted, independent from the fact that it may be performed outside a hospital, by a non specialist and for analogous religious or cultural reasons.