Removing a Person from the State for Female Genital Mutilation

Removing a Person from the State for Female Genital Mutilation is an offence under Section 45A of the Crimes Act 1900 which carries a maximum penalty of 21 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You took or arranged for a person to be taken outside NSW, and
2. You intended by doing so to have female genital mutilation performed on the person

‘Female genital mutilation’ is defined as:

Excising, infibulating or otherwise mutilating the whole or any part of the labia majora, labia minora or clitoris of another person.

If the prosecution proves you took or arranged for a person to be taken outside the state and the person was then subjected to female genital mutilation, it is presumed you intended for the procedure to occur unless you are able to prove ‘on the balance of probabilities’ that this was not your intention.

The fact the other person consented to the procedure is not a defence to the charge.

It is not an offence to perform a surgical operation which causes female genital mutilation where:

1. It is done by a medical practitioner and is necessary for the medical welfare of the other person, or
2. It is done by a medical practitioner or authorised professional on a person in labour or who just gave birth and is connected with that labour or birth, or
3. It is done by a medical practitioner and is a sexual reassignment procedure

A ‘medical practitioner’ is a person authorised under the law to practise medicine.

An ‘authorised professional’ includes:

1. A registered midwife
2. A midwifery student, and
3. A medical student

A ‘sexual reassignment procedure’ is that which alters the genital appearance to that of the opposite sex.

Duress is a defence to the charge.