Women and Justice: Keywords

Domestic Case Law

N. de pourvoi: 84-95759 Cour de Cassation, chambre criminelle (1986)

Female genital mutilation or female genital cutting, Female infanticide and feticide

Two parents sought the assistance of a non-identified female in carrying out a circumcision of their daughter, then aged 21 months and 25 days. The infant’s parents proceeded to assist the non-identified female in the act by immobilising their child throughout the operation. The child subsequently suffered from an external hemorrhage caused by an aperture of the wound, causing anaemia and loss of appetite. The infant’s parents did not at this stage bring the child’s critical condition to the attention of a doctor or emergency services. The child died shortly thereafter. The infant’s parents were convicted of voluntary grievous bodily harm resulting in the involuntary death of a minor which is prohibited in accordance with article 312 of the French Penal Code and failing to assist in the prevention of the child’s death. The case demonstrates the severity with which the French courts will hold parents liable for not only assisting in the practice of female circumcision, but also for failing to prevent the adverse consequences that it may entail.

Deux parents ont obtenus l’assistance d’une troisième personne pour circoncir leur fille, agée de 21 mois et 25 jours. Les parents du nourrisson ont assisté à l’acte par immobilisant leur enfant. Par la suite, le nourrisson a souffert d’une hémmoragie externe, ce qui a causé l’anémie et une perte de l’apétit chez l’enfant. Les parents n’ont pas porté l’attention d’un médecin ni des services de secours à l’état de santé critique de l’enfant. Peu de temps après, l’enfant périt. Les parents ont étés condamnés de maux corporelles graves et volontaires resultant en la mort involontaire d’une mineure, ainsi de ne pas aider en la prevention du mort de l’enfant, ce qui est interdite en accordance avec l’article 312 de la Code pénale française. Les parents ont aussi étées trouvés en violation de la Convention européenne de la droit de l’homme. Les cours français tiendront responsible non seulement les parents qui assistant à la circoncision feminine mais aussi ceux qui ne faites pas l’éffort de prévenir les consequences negatives de cette pratique.

Law & Advocacy for women in Uganda v. Attorney General Constitutional Court of Uganda (2010)

Female genital mutilation or female genital cutting, Harmful traditional practices

Petitioners challenged the tribal practice of female genital mutilation and argued that it is inconsistent with the Ugandan Constitution. They argued that the practice is cruel, inhuman, and degrading, and endangers the right to life and privacy under the Constitution. The two issues before the court were whether the petition raised any matter for constitutional interpretation and whether the practice of female genital mutilation should be declared as null and void under the constitution. At trial, petitioners produced unchallenged affidavits supporting the fact that female genital mutilation was practiced crudely, wantonly, and without anesthesia, causing permanent damage and trauma to the victim, including incontinence, paralysis, and even death. The court first held that the petition did raise serious questions for constitutional interpretation. Second, the court held that, while the Constitution protects free exercise of cultural or religious custom, such exercise must not infringe on human dignity or the right to be free from cruel, inhuman, or degrading treatment. Thus, the court held that female genital mutilation was inconsistent with the provisions of the Constitution, and thus declared the custom void.

International Case Law

Diene Kaba v. Canada Human Rights Committee (2008)

Domestic and intimate partner violence, Female infanticide and feticide, Forced and early marriage, Harmful traditional practices

Diene Kaba was severely beaten by her husband when she intervened to prevent the clitoral excision of her six-year-old daughter. Both mother and daughter fled Guinea and arrived in Canada where Kaba claimed refugee status for herself and her daughter on the grounds of membership of a particular social group as single women and victims of domestic violence, and in view of the serious risk of her daughter’s excision. The Immigration and Refugee Board (IRB) refused to grant refugee status for lack of credibility. Kaba then applied for an exemption to the permanent resident visa requirement on the basis of humanitarian and compassionate considerations, as well as a pre-removal risk assessment. The IRB rejected both applications and ordered her removal from Canada. Kaba included supporting documents in each application, including reports confirming the risk of excision in Guinea and a letter from her uncle in Guinea that attested to her husband’s threats to harm Kaba if he ever saw her again, or kill her if she did not return his daughter to him. Kaba’s husband had subsequently obtained a court order forcing Kaba’s brother and mother to do everything possible on pain of severe penalties to return his daughter to him in Guinea. The affidavits for the order show that Kaba’s daughter faced certain excision and forced marriage upon her return to Guinea. In her complaint to the Committee, Kaba cited violations of several articles of the International Covenant on Civil and Political Rights, including article 7 prohibiting torture and cruel, inhuman, and degrading treatment or punishment. The Committee held that there was no question that subjecting a woman to genital mutilation amounted to treatment prohibited under article 7 of the Covenant, and although Kaba’s daughter was fifteen at the time the Committee addressed the communication, the context and particular circumstances of her case demonstrated a real risk of genital mutilation upon her forced return to Guinea.