By Megan Costello
Thursday, February 19, 2004
As the U.S. government prepares to prosecute its first case under a federal law prohibiting FGM, activists are pushing for better legal protection of girls who can face the disfiguring practice when they go to any of 28 African countries.
LOS ANGELES (WOMENSENEWS)--Earlier this week, a Southern California couple was arraigned in a Los Angeles federal court on charges of conspiring to circumcise two female minors. Now, the United States Attorney's Office is preparing to prosecute its first case under the Federal Prohibition of Female Genital Mutilation Act of 1995.
Todd Cameron Bertrang, 41, and Robyn Faulkinbury, 24, were arrested in December after agreeing to cut the genitals of two fictitious girls. Undercover FBI agents posing as the girls' parents offered the couple $8,000 to perform the procedure.
This case is the latest development in the U.S. government's efforts to grapple with female genital mutilation in the U.S. and among U.S. residents with ties to Africa.
Passed in 1996, the Federal Female Genital Mutilation Act was designed to protect girls in immigrant communities that support the practice. The law prohibits genital cutting on girls under the age of 18 unless it is medically necessary and then only if performed by a licensed professional. Neither Bertrang nor Faulkinbury is licensed to practice medicine, according to the indictment.
Although heartened by the government's enforcement of the law, FGM activists say the alleged crime is not a typical case of genital mutilation. There were no actual victims, and there is no proof that Bertrang or Faulkinbury has circumcised any underage females. According to his Web site, Bertrang enjoys the psychosexual aspect of piercing and body modification.
The case against Bertrang "doesn't really fit the reason why the FGM law came into being," said Taina Bien-Aime, executive director of the human rights organization Equality Now, based in New York.
Based on census data and FGM rates for African countries, the Centers for Disease Control and Prevention in 1997 estimated that nearly 170,000 girls and women in the United States had been or were at risk of being circumcised.
In Africa, female genital mutilation is an excruciating procedure commonly performed without anesthesia in unhygienic conditions. Death and infections are common. The most extreme form involves cutting off the entire clitoris and labia and sewing up the skin so that only a small hole the size of a few matchsticks remains. Girls who survive circumcision often suffer from psychological trauma and experience lifelong pain during menstruation, urination, sexual intercourse and childbirth.
Although FGM is still occasionally performed in the U.S., activists say their legal strategy has moved to the young female immigrants who are the ones most at risk: When they return on family visits to one of the 28 African countries where genital cutting is routinely practiced, they can be forcibly subjected to FGM.
Activists are agitating for greater protections for U.S.-born girls and young women who visit or are deported to African countries where FGM occurs and for laws that criminalize sending girls overseas to be cut. The United Kingdom, France and Sweden not only prohibit the act of genital cutting itself but also any attempt to aid or abet it either at home or abroad.
Although U.S. law does not provide such far-reaching protections, some women whose children are at risk for FGM have won asylum in this country.
One year ago, a federal appeals court blocked the deportation of Philomena Nwaokolo, a Nigerian woman who claimed her U.S.-born daughter would be subjected to FGM if forced to return to her native country.
"The government could never do to these girls in this country what the INS seems all too willing to allow to happen to them in Nigeria," the 7th Circuit Court of Appeals ruling said.
Nwaokolo's case was the first in which a U.S. court recognized FGM as torture under the United Nations Convention Against Torture, which became U.S. law in 1994, according to Morton Sklar, the executive director of the World Organization Against Torture USA, based in Washington, D.C. The circuit court ruling provides another legal avenue for women seeking refuge in this country from genital cutting.
"It's another form of relief, but it's not necessarily easier to get," said Colleen Renk, an attorney with the Tahirih Justice Center, which represents females facing gender-based violence.
Women fearful of FGM who wish to remain in this country under the torture convention must meet a heavy burden in proving that their state of origin condones the practice. Amnesty International reports that 14 African countries have laws against female circumcision, but they are not well enforced.
Immigrant women generally seek relief from genital mutilation by claiming asylum based on a fear of persecution in their home countries. In 1996, Fauziya Kassindja became the first woman to win asylum in this country on the grounds that she would be subjected to FGM if deported to Nigeria. Her case established FGM as a form of gender-based persecution that may qualify women for U.S. asylum.
Subsequently, former Attorney General Janet Reno proposed regulations that broadened the protection of women at risk of gender-based persecution. Activists are worried, however, that Attorney General John Ashcroft will roll back the protections.
Conservatives want to cut back on gender-based asylum claims because of the so-called "private" nature of domestic crimes, said Sklar, and because they fear a flood of asylum claims.
However, Renk of the Tahirih Justice Center said that the "floodgate argument has not been borne out."
Two months ago, a federal appeals court upheld the deportation of Doris Oforji, a Nigerian woman residing illegally in the United States who had requested asylum on the grounds that her daughters would be subjected to FGM if she were deported.
Although it upheld the decision to deport Oforji, the appeals court acknowledged that her decision to either leave her children behind in the U.S. or put them in harm's way in Nigeria is "a choice no mother wants to make."
Although he praised Congress for outlawing FGM in this country, Sklar, the attorney with the World Organization Against Torture USA, says the federal government violates that law when it deports young women and mothers to countries that practice genital cutting.
"It's our position that government officials who allow deportation to take place in circumstances that would lead to FGM are violating criminal law," he said.
Aside from legal efforts, activists say educating African immigrant communities about FGM is the best method of protecting children from the practice and offering relief to women suffering from the medical and psychological consequences of genital mutilation.
"The law isn't enough," said Bien-Aime of Equality Now. "It is important as a deterrent, but people need education. We need people on the ground who have access to girls and young women at risk, to help them understand that not only is the procedure against the law, but also that there are harmful effects."
In 1999, Sudanese-born MacArthur award winner Dr. Nawal Nour of Boston's Brigham and Women's Hospital founded the African Women's Health Center, the only clinic in the country to focus on the physical and emotional needs of female circumcision victims. Organizations such as the Research Action and Information Network for the Bodily Integrity of Women, or RAINBO, in New York work with African community groups to teach immigrants about the dangers of genital cutting.
"There's a growing sense of feminism out there," said Dorchen Leidholdt, legal director at Sanctuary for Families in New York City, which works with West African immigrants. "Women are realizing this is an unacceptable practice."
Megan Costello is a freelance writer in New York City.
Brigham and Women's Hospital--
African Women's Health Center:
Tahirih Justice Center: