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Criminal Law NSW Noticeboard – November 2019

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Female genital mutilation and interpretation of s 45(1)(a)

Statutes – Construction – Where s 45(1)(a) of Crimes Act 1900 (NSW) provides that a person who ‘excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person’ is liable to imprisonment – Where two respondents charged with having ‘mutilated the clitoris’ of each of complainants – Where other respondent charged with assisting those respondents following commission of those offences – Where defence case that procedure performed on complainants merely ritualistic – Where trial judge directed jury that word ‘mutilate’ in context of female genital mutilation means ‘to injure to any extent’ – Where trial judge directed jury that ‘clitoris’ includes ‘clitoral hood or prepuce’ – Whether ‘otherwise mutilates’ should be given ordinary meaning or take account of context of female genital mutilation – Whether ‘clitoris’ includes clitoral hood or prepuce – Whether trial judge misdirected jury as to meaning of ‘mutilate’ and ‘clitoris’

R v A2 (2019) 93 ALJR 1106; [2019] HCA 35 – 16 October 2019 High Court of Australia Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ

Meaning of mutilates – in R v A2 (2019) 93 ALJR 1106; [2019] HCA 35, the High Court ruled on the meaning of “mutilates” within the meaning of s 45. A2 was the mother of two young girls C1 and C2 (at the relevant time 6–8 years and 6 years). A2 and another with another woman (a Ms M) were charged under s 45 as being parties to a joint criminal enterprise to perform a ceremony called “khatna” on the girls which involved causing an injury to the clitoris of each of them by cutting or nicking it. The 3rd respondent, A1 was the husband of A2. Each of the respondents were members of a community adhering to Shia Islam. A1 was charged with assisting A2 and the other respondent following the commission of the offences. A1 was a cleric and spiritual leader. Ms M was a trained nurse and midwife. A1, A2 and Ms M were arraigned in the Supreme Court before Johnson J and a jury panel. In the joint judgment of Kiefel CJ and Keane J, their honours summarised the defence at trial at [6]:

The respondents did not dispute that there had been a procedure performed by Ms M on C1 and C2. The defence case was that it was merely ritualistic and did not involve any nick or cut to the clitoris of either complainant. To rebut this aspect of the defence case, the Crown relied on: the accounts given by C1 and C2, in their recorded interviews with police, of feeling pain; expert evidence tendered in relation to the practice of khatna within the community; and conversations between A2, A1 and others, which were intercepted or recorded via listening devices, as to what was involved in the practice.

The respondents also argued that even if there had been a cut or nick to the clitoris of either girl, this did not amount to “mutilation” within the meaning of s 45(1)(a). As to this, the trial judge had directed the jury that (Kiefel CJ and Keane J at [7]–[8]):

“The word ‘mutilate’ in the context of female genital mutilation means to injure to any extent.” [and]
“[i]t is not necessary for the Crown to establish that serious injury resulted. In the context of this trial, a nick or cut is capable of constituting mutilation for the purpose of this alleged offence.”

The respondents were each found guilty. Each was sentenced to a form of imprisonment. Each appealed to the Court of Criminal Appeal where it was held that Johnson J had misdirected the jury as to the meaning of “mutilate”: A2 v The Queen [2018] NSWCCA 174. The Court of Criminal Appeal at [495], [513]–[515] and [521]–[522] held that mutilate must be construed according to its literal meaning and that more than injury must be shown such as impairing or rendering imperfect the body part mutilated (at [495]). The Court of Criminal Appeal said at [515]:

What is required is some form of more serious injury than, say a superficial shedding of the skin cells or a nick or cut that leaves no visible scarring and cannot be seen on medical examination to have caused any damage (let alone irreparable damage) to the skin or nerve tissue.

The Crown appealed this ruling to the High Court. In a 5:2 decision upholding the Crown appeal, the High Court (Bell and Gageler JJ dissenting) said that the literal construction given by the Court of Criminal Appeal to “mutilates” within s 45(1)(a) was incorrect and that the correct construction was as the jury was directed by the trial judge Johnson J.
Kiefel CJ and Keane J said at [53]:

… The word “mutilates” in its ordinary usage is simply displaced in order to give effect to the purpose of s 45, to prohibit the practice of female genital mutilation on female children in order to achieve its cessation. So understood, “otherwise mutilates” is to be taken to refer to female genital mutilation in all its injurious forms.

Kiefel CJ and Keane J added at [59]:

… [T]he trial judge did not misdirect the jury in summing up that the word “‘mutilate’ in the context of female genital mutilation means to injure to any extent”.

Nettle and Gordon JJ agreed with Kiefel CJ and Keane J, adding at [151]:

… the phrase “otherwise mutilates” in s 45(1)(a) means any physical injury to the whole or any part of the labia majora, labia minora or clitoris, which is done for non-medical reasons. It is not necessary to demonstrate that the physical injury lasted beyond the time it took for that immediate injury to heal or that there was any permanent disfigurement, alteration or loss of function, of the whole or any part of the labia majora, labia minora or clitoris.

Nettle and Gordon JJ at [157] made this observation:

Furthermore, the requirement that there be permanent impairment, injury or imperfection would give rise to the odd result that whether or not a procedure gives rise to criminal liability under the “otherwise mutilates” limb of s 45(1)(a) would depend on the extent to which the body part repaired itself and, therefore, in some cases, the period of time that elapsed before the person subjected to the procedure, or someone else, reported the fact of the procedure. The longer the period, the less likely that liability would be established.

Edelman J at [174] agreed that the trial judge’s direction concerning the meaning of “mutilate” was not erroneous.

Meaning of clitoris – the meaning of clitoris within s 45(1)(a) was considered by the High Court in R v A2 (2019) 93 ALJR 1106; [2019] HCA 35. The trial judge had directed the jury that the clitoris “includes the clitoral hood or prepuce”. Of this, Kiefel CJ and Keane J said at [64]:

His Honour construed “clitoris” broadly, having regard to the context and purpose of s 45(1). He observed that female genital mutilation procedures are not carried out by surgeons. Although the legislature had identified three particular areas and had not used a broader term such as “genital area”, his Honour was satisfied that, as a matter of construction, “the clitoris and the prepuce of the clitoris are so closely interrelated that the prepuce may be regarded as part of the clitoris although, for technical purposes, it may also be regarded as part of the labia minora”.

Kiefel CJ and Keane J concluded at [67]:

The approach of the trial judge to the construction of s 45(1)(a) is to be preferred as one which promotes the purpose of s 45(1). As explained above, that purpose was to prohibit all forms of injurious female genital mutilation, procedures which, the FLC Report had observed, are not generally carried out by surgeons or with any precision. This context and purpose does not suggest an intention that any narrow or technical meaning be applied so as to exclude anatomical structures that are closely interrelated with the labia majora, labia minora or clitoris.

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