The country’s first prosecution under the Female Genital Mutilation Act 2003 (“FGMA 2003”) is currently underway at Southwark Crown Court, in front of HHJ Sweeney. The Defendant is Dr Dhanuson Dharmasena, a junior registrar in obstretics and gynaecology, who is on trial for the ‘reifibulation’ of female genital mutilation (“FGM”) – in layman’s terms, the re-stitching of FGM.
Facts of the case
The victim, known only as ‘AB’, was admitted to Whittington Hospital in November 2012 in the early stages of labour. When she was first examined, the midwife noted that AB had FGM. It appears AB first underwent FGM aged six, in her native Somalia. The next midwife to examine AB did not feel comfortable proceeding without a doctor and called for the assistance of Dr. Dharmasena. AB was examined by Dr Dharmasena, and he deinfibulated so that she was able to deliver the baby (in other words, he cut open the scar tissue from the FGM).
Dr Dharmasena faces no criticism for the deinfibulation. Rather, he faces prosecution because, after the baby had been delivered, he reinfibulated AB, sewing up both the episiotomy and part of the inner vaginal lips. This is the act that the Prosecution assert was contrary to the Female Genital Mutilation Act 2003 (“the FGMA 2003”). A midwife who was present at the time told Dr. Dharmasena that the procedure was not practiced in this country, and a hospital investigation was launched.
Another man is charged with aiding and abetting Dr. Dharmasena, and with an alternative count of encouraging or assisting another to carry out an offence.
Section 1 of the FGMA 2003, ‘Offence of female genital mutilation’ provides that “a person is guilty of an offence is he excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris”.
The offence appears to be strict liability, in that it has no corresponding mental element i.e. intention or recklessness.
Kate Bex, prosecuting, told the court that Dr Dharmasena originally gave the explanation that he carried out the procedure because AB wanted him to, but that he subsequently told police in August 2013 that the operation was ‘medically justified’. The defences to the offence of FGM are set out in section 2 of the Act, which provides that no offence is committed by an approved person (a medical practitioner or midwife, or trainee) who performs (a) a surgical operation on a girl which is necessary for her physical or mental health, or (b) a surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth. It is not yet clear on which of these two defences Dr Dharmasena seeks to rely.
Dr Dhamasena’s belief in the legality of the procedure he was performing will be somewhat irrelevant. What matter is whether he reinfibulated AB’s vagina for a legitimate medical purpose.
This is not the clear-cut case one might have imagined for the first prosecution under the FGMA 2003. Kate Bex, prosecuting, told the court “if you do know a little bit about FGM, you may be expecting to hear that the offence took place in a back-street clinic, by an unqualified and uncaring person, on a young child. This is quite different”.
The secrecy surrounding FGM makes it difficult to pinpoint cases, and it can be even more difficult to put together a case when the complainant will not give evidence, as in AB’s case. However the fact that the reinfibultation happened in a hospital has allowed the Crown to carve a case from witness accounts of medical practitioners and medical evidence.
Dr Dharmasena has been suspended by the General Medical Council pending the outcome of the trial.
By Merry van Woodenberg (@MerryVW), pupil barrister.