Prevention and enforcement of Female Genital Mutilation in Spain: some proposals

Jos Garca An. Human Rights Institute. University of Valncia (Spain)

Jos Garca An

Professor of Philosphy of Law. Faculty of LawHuman Rights Intitute

http://www.uv.es/idh

http://www.uv.es/Jose.GarciaJose.Garcia@uv.es

ContentCommunities at risk in Spain

The Law

Protocols and Guidelines

Cases

Asylum seeking based on FGM

Conclusions, Proposals and good practices

Communities at risk in Spain

In Spain, main population of countries of FGM prevalence is from: Senegal, Nigeria, Gambia, Mali, Ghana and Guinea

in 2008, there were 146,695 residents of these countries

Since 2001, there is an increase of migrants of these countries

In 2008, girls at risk, minors of 14 years old, are around 10,291.

Population of Senegal, Gambia, Mali, Ghana, Nigeria is concentrated in Catalonia

double amount from Gambia, four times the amount from Senegal or six times from Mali.

The Law

Specific law since 2003: Art. 149.2, Penal Code:Any person performing whatever form of genital mutilation, shall be punished with a sentence of imprisonment of between six and twelve years. Where the victim is a minor or is incompetent, the judge may see to dictate a sentence of particular disqualification for the exercise of custody, guardianship, tutorship by will, protection or care of minors between four to ten years, in the interest of the minor or incompetent individual.

Since 2005: Principle of extra-territoriality is extended: The principle of extra-territoriality is applied to the offence of FGM if responsibles were in Spain when the offence is committed outside the borders of Spain.

Protocols and guidelines

There are generic protocols against gender-based violence at national and regional levelSince 2001, there are specific protocols on FGM in Catalonia and Girona, and a Plan in Aragon (2004).There no plan or protocol at National levelBefore the change of Penal Code, Protocols proposed focus on preventive measures.

problem was not the existence of a generic penal protection (as serious injuries)

Some ideasIt is necessarycoordination of social authorities, health sector, judges, police...Co-operation with familiesIf there are no voluntary solutions, a variety of compulsory measures may be taken by judge in order to protect the minor:

a prohibition to leave the country, an order to return after a delimitated period of time, taking the girls passportdemanding a medical examination by a doctor....

Cases (preventive measures)

This change of law has not changed procedures of prevention.

There are some child protection cases in Administrative procedure and in Court, but it is not possible to concrete a number. For example,

Department of Social Action and Citizenship (Generalitat de Catalunya) says that between 2003 and 2005 there were more than 100 cases of girls at risk in Girona. Mossos dEsquadra (Regional Police) have prevented around 20 cases of female genital mutilation in the first semester of 2008.

Court CasesThree cases: All filed (before the change of law).

Matar (Barcelona), 1993 (before Penal Code reform of 1995)it was filed because Judge argued that parents do not know that conduct was an offence (Legal error)

Banyoles(Girona), 2000Based on newspapers information and filed without proofs.

Cervera (Lleida), 2002

Nonsuited because offence was committed outside the country by some relatives that acted convinced they didnt make anything bad.

Asylum

There are no administrative resolutions or court decisions granting asylum based on Female Genital Mutilation, until now.

A recent spanish law on equality of women and men (Law 3/2007), has included a change in article 3 of Asylum law (Law 5/1984) that extends the possibility to ask for asylum for foreign women who leave their countries of origin due to a founded fear of undergoing persecution for gender reasons.

Asylum

There is an administrative process of admission. Until now, Spanish Asylum Office has restricted the admission of asylum seeking based on FGM.Courts, when it is appealed against Office no admission, consider FGM as a form of persecution inside Geneva Convention.When Courts decide there is a restrictive interpretation and they do not grant it for different reasons: 1) The lack of identification or passport; 2) the lack of credibility; 3) It is a case of persecution by society and not by the State authorities, so there was the possibility to ask protection by the police; 4) If FGM is forbidden by law in that country; 5) if there is possible to move within the country.

Mutilacin genital femenina:

aplicacin del derecho y desarrollo

de buenas prcticas en su prevencin

Seminario del Instituto de Derechos Humanos de la Universitat de Valncia

30 y 31 de octubre de 2008

Sala Mariano Peset

Facultat de Dret

Universitat de Valncia

Campus de Tarongers

www.uv.es/idh

Pilar Aldea Lacambra. Mara Jos An Roig. Esther Caete Celestino. Carles Cruz Moratones. ngels Ga-liana Saura. Jos Garca An. Yo-landa Garca Ruiz. Luca Henar Este-ras. Sara Johnsdotter. Ricardo Juan Snchez. Leire Lasa. Els Leye. Antoni Llabrs Fuster. Vctor Merino Sancho.

Ruth Mestre i Mestre. Carmen Miguel Juan. Juana Moreno Navarro. Rosa Negre Costa. Julia Ropero Carrasco. Alexia Sabbe. Sally Saidy. Inmaculada Sau Giralt. ngeles Solanes Corella. Mara Elena Torres Fernndez. Linda Weil-Curiel. Socorro Zaragoza.

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Workshop Female Genital Mutilation: enforcement of law and implementation of good practices, Valencia, 30-31 october 2008

Participants: Child protection office, Social Services, Prosecutors, Judges, Police, Health Care sector, Anthropologists, Community-based organisations, NGOs, Academics...

Panels:

I) Female Genital Mutilation in Spanish Legislation: criminal law

II) Female Genital Mutilation in Spanish Legislation: procedure law, prevention measures and Asylum law

III) Experience of prevention protocols: Catalua and Aragn

IV) FGM prevention from health and social services perspective and from civil society perspective

V) Experiences from other European Countries

Mutilacin genital femenina:

aplicacin del derecho y desarrollo

de buenas prcticas en su prevencin

Seminario del Instituto de Derechos Humanos de la Universitat de Valncia

30 y 31 de octubre de 2008

Sala Mariano Peset

Facultat de Dret

Universitat de Valncia

Campus de Tarongers

www.uv.es/idh

Pilar Aldea Lacambra. Mara Jos An Roig. Esther Caete Celestino. Carles Cruz Moratones. ngels Ga-liana Saura. Jos Garca An. Yo-landa Garca Ruiz. Luca Henar Este-ras. Sara Johnsdotter. Ricardo Juan Snchez. Leire Lasa. Els Leye. Antoni Llabrs Fuster. Vctor Merino Sancho.

Ruth Mestre i Mestre. Carmen Miguel Juan. Juana Moreno Navarro. Rosa Negre Costa. Julia Ropero Carrasco. Alexia Sabbe. Sally Saidy. Inmaculada Sau Giralt. ngeles Solanes Corella. Mara Elena Torres Fernndez. Linda Weil-Curiel. Socorro Zaragoza.

ObjectivesEvaluation of known FGM cases in Spain Evaluation of Spanish Legislation (criminal law, procedure law, administrative law) on FGMEvaluation of protocols and preventive guidelines and their enforcement.Evaluation of services and bodies for FGM prevention.Evaluation of ethical aspects and racial conflicts in legislation and in prevention measures Formulate good practices and experiencies in the enforcement of Female Genital Mutilation legislation.Formulate practical recommendations to UE countries, and if is possible, a framework for FGM criminal law and child protection

http://tinyurl.com/o4ngar

Conclusions, proposals and good practices

1) It must be recognized that, female genital mutilation, as cases of gender violence are a violation of human Rights. For example, it is recognized in this way in the preamble of the Law 5/2008 of Catalonia, the right of women to eradicate male violence.

2) It is necessary to know the foreign population and practising communities in each region to assign social, health and welfare assistance.

3) The proposal to decentralize and territorialise protocols and action policies and to formalizate coordinated and networked groups and entities envolved with institutions.E.g,inCatalonia, through thecreationof "Taules" (Mesas)orcoordinatedworkinggroupsat thelocallevel.Thereare Taules set up in thirty localities. The groups are formed by local Social Services; immigrationpoliciesServices,representativesof schools;Pediatriciansand/orothershealthprofessionals;AutonomousPoliceand/orlocalpolice;EAIA(EquipmentfortheCareofChildren);and otherstaffthatthemunicipalityconsidersappropriate.

I Institut Catal de la Salut

Compromiso informado de evitacin de la mutilacin genital femenina Datos de la nia Apellidos i nombre

NIF /pasaporte Edad

Fecha de nacimiento

Lugar de nacimiento Nacionalidad

Direccin

Cdigo postal

Poblacin Telfono

Datos de la persona responsable de la nia Apellidos i nombre

NIF Vinculacin padre madre tutor legal

Fecha de nacimiento

Lugar de nacimiento Nacionalidad

Direccin

Cdigo postal

Poblacin Telfono

Datos del/de la doctor/a que atiende a la nia Apellidos i nombre

NIF

Nm. de colegiado/a

Centro

Marco legal de la mutilacin genital femenina en el Estado espaol La mutilacin genital femenina se considera un atentado contra los derechos Humanos y est asociada a riesgos socio sanitarios y psicolgicos. En el Estado espaol, esta intervencin se considera un delito de lesiones en el artculo 149.2 del Cdigo penal, aunque la operacin se haya llevado a cabo fuera del pas (por ejemplo en Gambia, Senegal, Mali, etc.), segn la modificacin de la ley orgnica del poder judicial 3/2005. La pena de prisin es de 6 aos a 12 aos para los padres o responsables, la retirada de la patria potestad y la posibilidad de ingreso de la nia en un centro de proteccin de menores.

Asociaciones contra la mutilacin genital femenina en los pases en los que se practica Pas Nombre de la asociacin Telfono

ICS

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4/06

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a) providing parents with ofJicialdocumentation translated into nativelanguages to show the risk ofconviction for parents should theyreturnwithagirlmutilated.The commitment is voluntary forparents.Thefamiliesdemandanduseit and it is also a way to know thatparentsareinformed.An example is the document ofpreventive commitment that informsparentsofthehealthandlegalaspectsofFGM.

4)ProposalsforhelpingforeignersinEuropeancountriestoavoidpressurefromthecommunityinthecountriesoforigin.Thesemeasuresare:

4. b) Through networks between families, associations and professionals. This will reinforce to families who want to stop the practice. The word and the pact also works sometimes. They create bonds of trust and commitment validated by professionals who monitor the cases.

5) Need to work in countries of origin and facilitate the change of mind to eliminate FGM globally.

For example, the commitment of the government of Gambia with the project "Initiation without mutilation" (Adriana Kaplan, Autonomous University of Barcelona,February 2009). The project designed a work plan for the prevention of FGM practices in Gambia in which international NGOs in the area take part.

It is about the development of an alternative method to the ritual of female circumcision which is respectful towards Gambian culture: that is, it maintains and enhances the cultural transmission and social belonging without physical mutilation.

At the same time, they will work with Gambian women in Spain, most residents in Catalonia, through NGOs, so that pediatricians, doctors or teachers who know of cases of families who travel to Gambia will prepare a document that allows them to fend off pressure to mutilate their daughters.

6) Internal development of protocols in some professional areas: promoting information and awareness to expand to other operators.

For example, in the case of the police in Catalonia (Mossos dEsquadra) has developed the protocol in the internal sphere to spread throughout the field of regional policing.

There has been specific training at the Institute of Public Security: about 300 police were trained and specifically police belonging to an office for aiding victims.

7) Proposals from the health field:

Given the problems of underdiagnosis or lack of understanding of some doctors, for this reason, it is a immediate and long term health and medical issues. It also has an impact for other medical professionals: psychiatric, obstetric ...

The proposal made was to record genital problems on pregnancy records (as the pregnant card), on the health card and on the medical record because this may be a problem, for example, at the time of babys delivery. E.g, Catalonia has e-CAP, software containing the medical history of primary care and it would be useful to record this information on it.

There are other concrete proposals: to give emotional support, sex education for young couples, the possibility, in some cases, of reconstruction of the genital area.

8) Proposals of training for professionals. Further work is needed in the training of specialists and professionals for their ignorance of the phenomenon, health and legal implications. Programs should be created to train professionals in the detection, recognition and intervention with families and children at risk. E.g Female genital mutilation is part of continuing education in health centers and in the subject of Gynecology, in the Faculty of Medicine of Zaragoza.

9) Development of specific standards for the prevention, detection, eradication, care, assistance, protection, recovery and reparation.

For example, Law 5 / 2008 of Catalonia, about, the right of women to eradicate male violence, propose some concrete measures:

a) Investigation of the phenomenon (art. 8)b) Social awareness and information to prevent and eliminate male violence (art. 9)c) Obligation of intervention and communication from professionals (art. 11)d) Performance of public policies in education (Art. 12 et seq.)e) training and mandatory training for all professionals involved directly and indirectly in the processes of violence, and insists the government of Catalonia to design training programs for this purpose. (arts. 18 and 19)f) Measures specifically aimed at the media, in advertising should follow the duty to respect the dignity of women and banning the generation and dissemination of content to justify male violence, incite their practice, whether they are exhibited in public or in private. (ar. 20 et seq.)g) Regulation of the rights of women to prevention, care, assistance, protection, recovery and redress (Articles 30 et seq)

10)Proposals for distributing information on existing resources to specific groups.

In areas with the presence of immigrants who belong to groups at risk, it is necessary distribute information, brochures, leaflets, videos and various ways of materials.

For example, the leaflets of the Catalan Institute of Health and of the Institut Catal de la Dona.

Prevention Procedure Laws: There are no specific prevention and precautionary measures (protective measures/preliminary injunction) on FGM, so it would be open to discussion if there are necessary or not.

Discussion about what kind of jurisdiction or procedure would be more appropriate to deal with such problems: criminal, Gender Violence, Family, Child Protection

Discussion about whether professionals should report cases. It is argued that knowing that the practice is a crime, if they are not going to report, practice will become even more occult. But others say that when people arrive in a different country will have to accept the laws of that place. In whatever case, others say that professionals should also report any case as it is a violation of human rights.

Other discussed aspects:

Discussion on whether the argument of health is not the most important argument for the prevention, because in fact some Africans do not see it, because they assume it.

Discrimination and stigmatization: Some groups (from an anthropological perspective) argue that procedures in the protocols, the role of police and social services, are repressive rather than preventive. In this way, girls who are planning to travel to their home country on holidays are stigmatized in a situation of criminalization in our country. For example, can become dependent on social services, or parents can be imprisoned .

Thank you very much

Jos Garca Anhttp://www.uv.es/idh

http://www.uv.es/Jose.GarciaJose.Garcia@uv.es