The maximum penalty for performing female genital mutilation has been increased to 21 years’ imprisonment after the passing of a bill through NSW Parliament.
Previously, the penalty for performing genital mutilation on females was a maximum of seven years in prison.
A new offence of removing a person from the country to have genital mutilation performed overseas has also been created.
This offence was created to bring NSW in line with the rest of Australia, as it was previously the only jurisdiction which didn’t have a specific offence dealing with removal.
What is female genital mutilation?
Female genital mutilation is also known as female circumcision.
Concentrated primarily in a number of African countries, the custom of female genital mutilation involves partial or total removal of the external female genitalia or other injury to the area for non-medical reasons.
This procedure is often performed on girls as young as six or seven, and can cause an immediate risk to health as well as long-term issues, including infertility and childbirth complications.
According to the World Health Organisation, more than 125 million girls and women alive today have been a victim of female genital mutilation.
Female genital mutilation and Australian law
In 1995, NSW was the first Australian jurisdiction to introduce an offence of performing genital mutilation.
Since then, other states have introduced similar offences, but the penalties and legislation have been found to be inconsistent.
A review of the legislation surrounding female genital mutilation recommended that all the Australian states and territories adopt a consistent approach to penalising the offences of performing female genital mutilation, and removing a person from the country to have the procedure undertaken.
The increase of the maximum prison sentence to 21 years for this offence brings NSW in line with WA and Tasmania.
It also brings the offence of performing female genital mutilation to a similar punishable level as other serious assault offences, such as intentionally causing grievous bodily harm or wounding, which are punishable by 25 years’ imprisonment.
The first people to be charged with performing female genital mutilation in NSW were committed to stand trial at Parramatta Local Court last week.
A retired nurse and the mother of two girls aged six and seven were charged with allegedly circumcising the girls at their home in 2012.
Removing a person from the state for the procedure
The new offence of removing a person or arranging for a person to be taken from the state to have female genital mutilation performed is also more consistent with similar legislation in other states.
Previously, NSW was the only state which didn’t have a specific law addressing this circumstance.
Under the new legislation, it is a crime to remove or arrange for the removal of a person from the state with the intention of undergoing female genital mutilation.
This offence doesn’t just apply to children, it is equally relevant to adults.
Some activities which can be prosecuted under this offence include a husband escorting his wife out of NSW to undergo genital mutilation, or a father buying a plane ticket for his daughter to leave the country for the purposes of having genital mutilation performed on her.
Consent is not considered a defence under the female genital mutilation legislation.
This means that even if a woman consents to having female genital mutilation performed on her, the person who performed it can still be prosecuted.
This is consistent across Australian jurisdictions and for the purposes of NSW legislation, the person performing the procedure can be guilty of an offence if the victim was ordinarily a resident of NSW.
This means that if a NSW resident leaves the country to undergo female genital mutilation, the person performing the procedure can be charged with an offence even if it occurred in a different country.
If you or someone you know has been a victim of female genital mutilation, or has been charged with this offence, it’s a good idea to seek legal advice as soon as possible from an experienced criminal lawyer.