A Canadian Perspective on Female Genital Cutting
As in the USA, direct Canadian governmental involvement with FGC began in the mid-1990s. Between 1991 and 1995, prior to criminalization of FGC in Canada, policy statements against the practice were issued by the medical associations of Saskatchewan, Ontario, Manitoba, BC, and Alberta, as well as the Canadian Medical Association and the Society of Obstetricians and Gynecologists of Canada.53
Following the 1993 UN Convention on Human Rights, Canada made gender persecution grounds for refugee claims, and in 1994 was the first country in the world to grant refugee status to a woman who feared FGC if she was returned to her country. Since then, at least sixteen women have been granted refugee status on these grounds.54
In 1995, the Department of Justice consulted with community groups that traditionally practice FGC to develop recommendations regarding sensitive and effective measures that could be undertaken to ensure that the practice of FGM did not occur in Canada. The majority of participants objected to words such as “mutilation” and “child abuse” used to describe FGC, and recommended that “outside experts,” offensive language, and media sensationalism be avoided. Despite these findings, the report Female Genital Mutilation and Health Care compiled by Patricia Huston for the Federal Working Group on FGM in 2000 and published by Health Canada, continued to use and justify the use of the term “mutilation.” Although this report was intended for health care providers and community workers, and was not directed towards the communities that practice FGC, it set a precedent that condoned use of terminology considered offensive.55
In 1997, Section 268 of the Criminal Code criminalized FGC, although no one has yet been prosecuted under Canadian law. Canadian and American laws permitted women over eighteen years of age to consent to FGC, while the European laws I have discussed applied to all women. In both Canada and the UK, it is considered medical malpractice for health care providers to re-infibulate a woman who has had to be de-infibulated to deliver a child, regardless of her wishes.56
The governments of developed countries generally began to legislate against FGC after it had already made the transition from a health concern to a human rights issue; their laws are founded on such a conceptualization of the practice. As signatories to UN Conventions, it was necessary for them to implement national laws once the UN had condemned the practice in legally binding documents, and as public consciousness reached its peak in the mid-1990s, it was politically expedient for them to do so.
Written by Andrea Monahan, BA, BScN
Although the Canadian government provides explicit legal protection against forced non-therapeutic female genital cutting with Bill C-27, the Children’s Health & Human Rights Partnership believes continued education and professional advocacy is required to eradicate this practice, which has been driven underground.
The Canadian Department of Justice first considered the desirability of amending the Criminal Code to make FGM a criminal offense in 1991. In its report, the Department of Justice recommended against amendment, concluding that FGM already constitutes a criminal offense under existing laws prohibiting aggravated assault (Government of Canada, Criminal Code S.268), assault causing bodily harm (S.267), and failure to provide the necessaries of life to a child. Just as amputating a child’s hand without medical indication would fall within the general definition of aggravated assault as wounding, maiming, disfiguring, or endangering life, so too would excising a girl’s clitoris and/or labia. Based on this advice, no action was taken to criminalize FGM explicitly.
…in 1997, the government reversed its earlier position and amended the Criminal Code to define FGM explicitly as a form of aggravated assault to which no person could consent. Why did this happen, and what message did the government intend to convey through the explicit criminalization of FGM? The practice had already been pronounced illegal under the general law prohibiting various forms of assault. From a purely doctrinal perspective, it would have made more sense to create an exemption from the law of assault for male circumcision, a common cultural and religious practice in North America; technically, male circumcision also constitutes an aggravated assault. The fact that no one seriously fears criminal prosecution for circumcising a male child speaks to the power of dominant cultural norms to supersede the letter of the law and determine what the law is “really” about.
Written by Professor Audrey Macklin, Chair in Human Rights Law, University of Toronto. Published in Abusharaf, R. M. (2006). Female circumcision: Multicultural perspectives. Philadelphia: University of Pennsylvania Press.