- Legislation should prohibit the practice of taking girls out of a country where FGM is illegal to a country where the practice is allowed.
- Legislation should also provide that persons who commit FGM or procure, aid or counsel another who is not a resident of the country to commit FGM outside of the borders of their country shall be pursued, prosecuted and punished.
- Drafters should not require that FGM be a crime in the country where it was committed to prosecute individuals for behavior related to the practiced of FGM.
Illustrative examples:
- United States Transport for Female Genital Mutilation Act - In January 2013, the existing United States federal FGM law was amended by the Transport for Female Genital Mutilation Act, which prohibits knowingly transporting a girl out of the country for the purpose of undergoing FGM. The Act was created to stop the practice of taking girls living in the United States to other countries during their school breaks to undergo FGM. Under the new federal law, anyone found guilty of doing so may be sentenced to up to five years in prison. The Act was passed as an amendment to the National Defense Authorization Act (see Section 1088):
SEC. 1088. TRANSPORT FOR FEMALE GENITAL MUTILATION.
Section 116 of title 18, United States Code, is amended by adding at the end the following:
‘‘(d) Whoever knowingly transports from the United States and its territories a person in foreign commerce for the purpose of conduct with regard to that person that would be a violation of subsection (a) if the conduct occurred within the United States, or attempts to do so, shall be fined under this title or imprisoned not more than 5 years, or both.’’.
[Subsection (a) of 18 USC § 116- Female Genital Mutilation: Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.]
- European Parliament resolution of 24 March 2009 on combating female genital mutilation in the EU (2008/2071(INI)), Para. 28:
The European Parliament . . . [c]alls on the Member States to . . . pursue, prosecute and punish any resident who has committed the crime of FGM, even if the offence was committed outside their borders (extraterritoriality).
- New Zealand: Crimes Act 1961 No. 43, sec. 204B - Further offences relating to female genital mutilation:
(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent that there be done, outside New Zealand, to or in relation to any child under the age of 17 years (being a child who is a New Zealand citizen or is ordinarily resident in New Zealand), any act which, if done in New Zealand, would be an offence against section 204A [defining the offence of FGM],—
(a) causes that child to be sent or taken out of New Zealand; or
(b) makes any arrangements for the purposes of causing that child to be sent or taken out of New Zealand.
(2) Every one is liable to imprisonment for a term not exceeding 7 years who, in New Zealand, aids, incites, counsels, or procures the doing, outside New Zealand, in relation to any person who is a New Zealand citizen or is ordinarily resident in New Zealand, of any act which, if done in New Zealand, would be an offence against section 204A, whether or not the act is in fact done.
(3) Every one is liable to imprisonment for a term not exceeding 7 years who, in New Zealand, incites, counsels, procures, or induces any person who is a New Zealand citizen or is ordinarily resident in New Zealand—
(a) to submit, outside New Zealand, to any act which, if done in New Zealand, would be an offence against section 204A; or
(b) to acquiesce in the doing, outside New Zealand, on that person, of any such act; or
(c) to permit any such act to be done, outside New Zealand, on that person,—
whether or not, in any case, the act is in fact done.
3 Offence of assisting a non-UK person to mutilate overseas a girl’s genitalia
3(1): A person is guilty of an offence if he aids, abets, counsels or procures a person who is not a United Kingdom national or permanent United Kingdom resident to do a relevant act of female genital mutilation outside the United Kingdom.
3(2): An act is a relevant act of female genital mutilation if—
(a) it is done in relation to a United Kingdom national or permanent United Kingdom resident, and
(b) it would, if done by such a person, constitute an offence under section 1 [definition of the offence of FGM].
4 Extension of sections 1 to 3 to extra-territorial acts
4(1): (1) Sections 1 to 3 extend to any act done outside the United Kingdom by a United Kingdom national or permanent United Kingdom resident.
(1) No person shall do anything for the purpose of removing from Canada a person who is ordinarily resident in Canada and who is …
…( c ) under the age of eighteen years, with the intention that an act be committed outside Canada that if it were committed in Canada would be an offence against section . . . 268 [criminalizing excision] . . . in respect of that person.
(1) A person must not take another person from the State, or arrange for another person to be taken from the State, with the intention of having prohibited female genital mutilation performed on the other person.
Penalty: Level 4 imprisonment (15 years maximum).
(2) In proceedings for an offence under subsection (1), proof that-
(a) the accused took the person, or arranged for the person to be taken from the State; and
(b) the person was subjected, while outside the State, to prohibited female genital mutilation-
is, in the absence of proof to the contrary, proof that the accused took the person or arranged for the person to be taken from the State with the intention of having prohibited female genital mutilation performed on the person.
- Kenya’s Prohibition of Female Genital Mutilation Act, 2010, article 5:
A person commits an offence if the person takes another person from Kenya to another country, or arranges for another person to be brought into Kenya from another country, with the intention of having that other person subjected to female genital mutilation.
Sweden and Kenya not only prohibit female genital mutilation within their borders, but also punishes any person residing in Sweden or Kenya who participates in FGM in another country even if that country allows the practice.
Anyone who has committed an offence under the terms of this Act is to be sentenced in a Swedish court of law, even if Chapter 2 Sections 2 or 3 of the Penal Code… (describing the limited circumstances in which Swedish courts can prosecute, under Swedish law, crimes committed outside the Realm of Sweden) … are inapplicable.
- Kenya’s Prohibition of Female Genital Mutilation Act, 2010, article 11:
(1) A person who, while being a citizen of, permanently residing in Kenya, commits an act outside of Kenya which act would constitute an offence under section 3 had it been committed in Kenya, is guilty of such an offence and is liable to the same penalty prescribed for such offence under this Act. . . .