Commentary on From the War on Terror to the Moral Crusade Against Female Genital Mutilation

More than 200 million girls and women are documented to have undergone female genital mutilation or cutting (FGM/C), a practice that is associated with short- and long-term health effects varying from infections to death (World Health Organization, 2022). Efforts to eradicate the practice go back to the era of colonialism (Njambi, 2004). For example, British colonial officials prohibited FGM/C by law in Sudan in 1946 (Abusharaf, 2006). While there remains debate regarding the effectiveness of top-down, legal approaches to eradicating FGM/C, the pursuit of laws is heralded by the United Nations (UN) as a deterrent and a normative signal that the practice is unacceptable (UNFPA & UNICEF, 2020; United Nations, 2011). The criminalization of FGM/C also demonstrates fulfillment of international human rights laws obligations (UNFPA & UNICEF, 2020). As of 2021, 87 countries have passed legislation to either prohibit FGM/C or to allow FGM/C to be prosecuted through other laws (World Bank, 2021). In the United States (US), the legal landscape has shifted considerably from the first federal attempt to criminalize the practice in 1996 to a legal environment characterized by prohibitions in 40 US states (Equility Now, 2022; Legal Information Institute, 2021).

Dina Bader chronicles the rise in state laws in From the War on Terror to the Moral Crusade Against Female Genital Mutilation through the lens of femonationalism, which is a term coined by Sara Farris in In the Name of Women's Rights; The Rise of Femonationalism. The term, short for “feminist and femocratic nationalism” refers to the manipulation of feminist concepts by nationalist politicians and right-wing parties in their anti-Islamic campaigns (Farris, 2017). Bader concludes that the current and recent history of FGM/C legislation in the US can be characterized as femonationalism. In this commentary, we concur that the move to criminalize FGM/C in the US, especially the more recent state-level laws, seems to be driven by a desire to realize xenophobic political gains through the instrumental use of FGM/C, with the support of some anti-FGM/C activists and organizations. We further explicate this conclusion with some additional reflection on the content of the laws and conclude this commentary with recommendations for legislation that more holistically addresses FGM/C.

Legal Content

UN guidance on the establishment of laws prohibiting “harmful practices,” such as FGM/C, stipulates a wide range of required elements, including the need for comprehensive legislation that goes beyond criminalization to explicit provisions for prevention and the support and protection of survivors (Table 1; United Nations, 2011). According to our content analysis of existing state legislation, identified using the Equality Now website, which was updated as of March 2022, it is clear that the primary and, in many cases, sole intent, is to criminalize the practice of FGM/C. Most state laws on the topic of FGM/C (26 out of an existing 40) entirely lack language about prevention or services for victims. Only 14 state laws have included elements regarding prevention, and when mentioned, are focused on education and outreach, with only a few states mentioning engagement of stakeholders in the practicing communities. While some laws were more comprehensive than others (e.g., Arkansas State law), on average, the laws were woefully lacking (e.g., Arizona State law), a finding that also applies to the federal prohibition of FGM/C.

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Table 1.

Key Elements of Violence Against Women Legislation With an Emphasis on Harmful Practices.

The Constitution should be reviewed to ensure that, where multiple legal systems exist, they are consistent with human rights and gender equality standards, and do not disadvantage women victims/survivors of violence.

Acknowledge that all forms of violence against women, including all “harmful practices,” are a form of discrimination, a manifestation of historically unequal power relations between men and women, and a violation of women's human rights;

Refer to regional human rights conventions and standards, where they exist

Provide that no custom, tradition, or religious consideration may be invoked to justify “harmful practices” against women.

Ensure that so-called “honor” crimes, female genital mutilation and “harmful practices” related to marriage, including child marriage and forced marriage, are the subject of comprehensive legislation.

Provide for the principle of extraterritoriality in respect of “harmful practices”;

Allow for the extradition of perpetrators of “harmful practices” for trial; and

Eliminate diplomatic protocols or policies that may impede a victim's access to assistance in cases where she has dual citizenship.

Mandate the training of all religious, customary, community, and tribal leaders to promote women's human rights and denounce violence against women, including “harmful practices.”

Mandate the training of health professionals in order to promote women's human rights and denounce violence against women, including “harmful practices” and identify and appropriately treat victims/survivors of “harmful practices.”

Mandate the training of teachers in primary and secondary schools as well as institutions for further education to promote women's human rights and denounce violence against women, including “harmful practices,” as well as to create awareness among teachers of the particular “harmful practices” to which girls at their school may be at risk.

Provide effective sanctions against anyone who condones or participates in any “harmful practices.”

Define female genital mutilation as any procedure involving partial or total removal of the external female genitalia or other injuries to the female genital organs for nonmedical reasons, whether committed within or outside of a medical institution.

Not distinguish between the different types of female genital mutilation for the purposes of punishment.

Clearly state that consent cannot be a defense to a charge of female genital mutilation;

Establish a separate and distinct offence of the act of female genital mutilation; and

Establish that perpetrators are subject to higher criminal penalties associated with crimes against children.

Mandate that all relevant professionals report cases of female genital mutilation to the appropriate authorities.

Mandate that appropriate and specialized shelter services be available for victims/survivors of “harmful practices” within established shelters for victims/survivors of violence; and

Where necessary, mandate that specialized shelters be established for victims/survivors of certain “harmful practices,” including child and forced marriage, female genital mutilation, and so-called “honor” crimes.

Mandate the appointment of specialized protection officers who have undergone dedicated training in relation to each specific “harmful practice” and are tasked with developing an individual safety plan for each victim/survivor.

Provide for the appointment of a sufficient number of such protection officers in order to ensure that they are not overburdened; and

Require the development of protocols for various sectors setting out guidance on risk assessment, reporting, service provision, and follow up in cases of suspected or actual “harmful practices.”

Provide for the registration of service providers who have as their objective the protection of the rights of women victims/survivors of violence; and

State that no legal or other proceedings shall be brought against a service provider or member of the service provider who is, or is deemed to be, acting in good faith toward the prevention of “harmful practices” or the protection of victims/survivors of “harmful practices.”

Provide for the issuance of both emergency and long-term “protection orders” in relation to any form of “harmful practice”; and

Provide that, in cases of “harmful practices,” such protection orders may need to be issued against more than one person and such as a tribe or extended family.

Acknowledge that communities have an integral role to play in the abandonment of female genital mutilation, and call for governmental support, for community-based abandonment initiatives; and

Support community-based initiatives that are targeted at changing behavior and attitudes, including alternative rites of passage, and the re-training of traditional practitioners for alternative professions, such as midwifery.

State that a girl or woman may seek asylum on the basis that she has been compelled to undergo or is likely to be subjected to female genital mutilation or at risk of another “harmful practice.”

State that a parent or other relative may seek asylum in connection with an attempt to protect a woman or girl from any “harmful practice”; and

Provide that victims of “harmful practices” are members of a particular social group for the purposes of seeking asylum.

Note. Table content adapted from United Nations (2011). Supplement to the handbook for legislation on violence against women: United Nations Publications.

Existing evidence on the effectiveness of top-down legal approaches to FGM/C highlights the insufficiency of laws alone to eliminate the practice and the complex interplay of prevailing norms in the effectiveness of the legal approach (Aberese Ako & Akweongo, 2009). Where norms are already being contested, a law could bolster progress already underway to end the practice; in communities where there is greater support for the continuance of the practice, a law can foment opposition and result in more clandestine practice (Shell-Duncan et al., 2013; Lewnes, 2005). At present, the US does not have reliable evidence on even the size of the problem, let alone the depth of data on risk and protective factors and the diverse normative environments that sustain or inhibit the process. Blindly criminalizing the practice, without robust research, community engagement, prevention, and support for culturally appropriate services for victims have the potential to result in considerable harm to survivors and communities.

Beyond Banning FGM/C

In order to protect women and girls at risk and provide culturally sensitive services for survivors, criminalization should be accompanied by a comprehensive plan to provide an enabling environment for FGM/C to be eliminated. UNICEF and UNFPA (2020) have outlined elements required to foster an enabling environment to eliminate FGM/C including a systemic collection of prevalence data, legislation, a rights-based gender responsive and multisectoral strategic plan, a coordination mechanism, budget, and youth and women engagement in response and prevention. These elements of the enabling environment are crucial to be implemented together with law enforcement. Following the UN's guidance on the development of laws criminalizing violence against women and harmful practices would be a strong start to comprehensive and effective legislation that minimizes unintended consequences.

Effective legislation should also be data-driven and evidence-based. The current state of the most basic piece of information, the actual size of the problem in the US, is so methodologically flawed as to make it useless for evidence-based legislation. Current estimates are likely great overstatements of the actual prevalence of the practice as they are indirect and involve assumptions about the practice in immigrants’ countries of origin and concordance of post-migration behavior with practices prevailing in the country of origin (Goldberg et al., 2016; Population Reference Bureau, 2014; Yoder & Wang, 2013). A study has been commissioned by the US Government on FGM/C (Women's Health Needs Study). Findings are not yet available, but completion of this study is crucial to more effective legislation and prevention and response programming.

Federal and state legislation should be comprehensive. As our review noted, the state and federal laws are far from comprehensive. FGM/C has been added to the reauthorization of the Violence Against Women Act (2022) which is much more comprehensive than the different state and federal laws, providing for a much more comprehensive response at the federal level than the ban alone.