Where is the mutilation? Understanding the High Court’s deliberation on FGM in Vaziri and Magennis

Abstract

In 2015, Vaziri and Magennis – the first case on female genital mutilation (FGM) – was prosecuted in Australia. Three people were convicted. In 2018, the NSW Court of Criminal Appeal ruled that the judgment was a ‘potential miscarriage of justice’. The prosecution pushed for ‘leave to appeal’ to the High Court of Australia and for consideration of the meaning of mutilation. The appeal was held in 2019, and the NSWCCA judgment was overturned. In this article, I examine the absence of discussions of male circumcision and female genital cosmetic surgery in this case and ask not only what form of cut produces a legal definition of mutilation, but where this cut must be and on what form of body.

Yes, your Honour, but still it is a nick, that is just a nick, because there is no blood, no lasting pain, and there is no evidence of that. So it could be a nick like I have just done to my hand. ¹

– Mr Game, defence in hearing of the High Court of Australia (June 2019)

In 2015 the first case against female genital mutilation (FGM) was prosecuted in Australia. ² The case, known as Vaziri and Magennis, was heard in the New South Wales (NSW) Supreme Court. The judgment that enabled the sentencing of all three defendants was a concern and, while perhaps all judgments deserve scrutiny, this judgment is hard to reconcile as favourable for the girls who were the supposed victims of ‘female genital mutilation’. ³ The two girls were seven years old when the practice occurred. This is the usual age for girls from the Dawoodi Bohra Muslim community to have Khatna or circumcision, a practice that involves a minor nick of the clitoral hood or prepuce. The girls were nine and eleven, respectively, when they were removed from school and interviewed by police and social workers without parental knowledge. This was 2015 and their family, and members of the Dawoodi Bohra Muslim community, would be subject to another four years of court appearances and investigation, by police, social workers and doctors. The girls have been examined and re-examined, genitally, psychologically, and then genitally once again.

After the initial judgment in 2015, in 2018 the NSW Court of Criminal Appeal (NSWCCA) ruled that the judgment of Johnson J in 2015 was a ‘potential miscarriage of justice’. ⁴ This 2018 ruling was delivered after three people had been convicted, all serving custodial sentences. Upon the ruling by the NSWCCA, there was relief from the families, briefly. I met the families. I know members of that community, in Australia and beyond. They are profoundly affected and exhausted, physically and emotionally, as well as financially.

Despite the NSWCCA being so clear in its judgment, and the obvious question of how much the victims must endure anew, the prosecution applied for leave to appeal to the High Court of Australia on the matter. This was granted and then heard in June 2019. The appeal was held, the NSWCCA judgment was overturned, and the matter was returned to the NSWCCA to decide whether a new trial was to occur. To date there has been no pursuit of this matter by the prosecution. And this costly legal focus, looking to spotlight the ‘mutilation’ of two little girls, has quietly gone out of legal and media attention.

There is a lot to consider regarding what happened in this case and to the people involved, and many questions remain as to the impact or indeed harm to the girls, who were the supposed victims of the crime of FGM. FGM law is complex and not a simple matter of applying a legal name to a practice, as many western anti-FGM activists would have you believe. ⁵ Certainly the practices known as female genital cutting (FGC)/mutilation (FGM), circumcision, clitoridectomy, or excision (to use only a few English words) are far more complex than people – not from practising communities – believe. FGC or FGM is not one practice, it is arguably not even a practice but a collection of images and anecdotes that some people – only very few of them having experienced any of the diverse forms of the practices – describe with these names. Female Genital Mutilation, specifically, is an inflammatory name for practices that have many names, and as many significances as there are cultures.

Women and practising communities have other words for the experience of their bodies when cut – circumcision, Bundu, Khatna, sunna to name a few – and ‘mutilation’ does not come close to describing the experience of the practice for a lot of these women. Some use the name and do feel its appropriate application to their bodies, as Sierra Leone-American anthropologist, scholar and activist Fuambai Ahmadu has said that she ‘does not see [her]self as mutilated’ but ‘subjective experience really matters’ and a subjective experience that does not articulate with the experience of mutilation is hard to hear. ⁶ The affective weight of the name tends to dominate discussion on this topic. The name – female genital mutilation – carries weight beyond any question of accuracy, and this weight is legal, emotional and sometimes financial for those subject to the law.

The prosecution in Vaziri and Magennis offered little weight to the subjective experience of the young girls in this case, or many women from the Dawoodi Bohra community. ⁷ Instead, the prosecution argued to the High Court that the practice is ‘abhorrent and of no perceivable benefit for the child’. ⁸ This is not an uncommon approach to the practices from western researchers and commentators. The Family Law Council, ⁹ which was much cited across the many hearings in this case, associates the practices with ‘child abuse’, and in its report, the Council in turn cited the United Nations’ Declaration on the Elimination of Violence Against Women, which likens the practices to ‘torture’. ¹⁰ Indeed, when the Family Law Council began its consultation on the topic, it invited comment through responses to its discussion paper on Female Genital Mutilation, from the standpoint that the practice was, first and foremost, a mutilation. As US anthropologist Richard Shweder has astutely noted, use of this term has the same effect as beginning a conversation on the topic of abortion by using the phrase ‘the murder of innocent life’. ¹¹ The name ‘female genital mutilation’ tends to unite a room against any nuanced discussion of the practices, and this unity is a powerful tool in advocating for penalisation.

This unity often obscures the texture of the practices and some obviously contradictory legal and biomedical logics. The nature of the practice of female genital mutilation, such that it could encompass a range of interactions with the skin, was the topic deliberated by the High Court in 2019. Specifically, the High Court considered the question ‘what is mutilation?’ or, more specifically, how can we interpret this word ‘mutilation’ in legal terms, with an additional query as to its colloquial significance. The question of what mutilation is, as I will argue here, cannot be separated from the questions of what makes a healthy body and what significance, and purpose, is held by different parts of the body. That is, the question of what mutilation is or, indeed, its legal significance, point not only to the what, or the whether, but to the where of mutilation; where can a body be touched, cut, nicked or operated on? What can be removed from this body? And where must legal prohibition intercede? As we see from the earlier comments by Mr Game (defence counsel in this case), a nick to the hand evokes quite a different reaction than a nick to the clitoris. And then the underpinning question emerges – what do we imagine a body is, such that certain areas are more vulnerable to the prohibitions of criminal law, than others?

In the High Court deliberation on Vaziri and Magennis, the distinction between skin that could be cut without prohibitive sanction, and skin which could not be cut because of such a sanction, appeared assertively during the deliberation on oral arguments. Querying Mr Game from the bench, Justice Nettle posed the question as to whether a ‘cut’ – in the sense that the defence was discussing, in relation to the practices – was like a ‘shaving cut’, ¹² immediately positioning the genital area as potentially analogous with his own face. ¹³ The technique of analogy, comparison, connection is a common way of trying to understand an experience of others when you have no experience of it yourself: ‘is it like this?’ is arguably a sensible question. And analogy is a common jurisprudential application, but it is not without political import. As legal scholar Peter Goodrich has noted:

Law, which reasons explicitly by images, analogies, associations and other narratives or metonymies similarly represents or dissimulates the invisible affects or unconscious desires of legal custom, judicial intention or sovereign will. ¹⁴

While the comparison helpfully comports cultural values around aesthetics and consent, I will argue that this analogy both betrays the meanings imported onto the practices and obscures the difficulties of applying legal meaning to legal practices that evoke another jurisdiction beyond Australian law. As I have argued elsewhere in relation to FGM law, ¹⁵ what is stimulated in western legal approaches to FGM, such as that of the High Court in 2019, is the ‘unconscious desires’, in Goodrich’s terms, of the court to assert that a sovereign will allows no tolerance of another’s law; another’s law as it is represented in the image and experience of another’s body.

As I will discuss here, the politics of the analogy – not only this single analogy but what is not made analogous – is crucial to understanding what has occurred in this case. To explain the politics, I will elucidate the terrain that the High Court justices have walked as they refused a balancing of practices better described as female genital cutting or female circumcision against (and it is against) male circumcision to understand the role of the clitoral hood, and against cosmetic genital surgeries as well as gender affirmation surgeries. Indeed, as I note, the High Court was careful to make analogies to ‘nicking’ but not analogies to cultural practices which might render an understanding of injury as culturally contingent. They were careful not to speak of nicking or circumcision or indeed surgeries that are not subject to criminal prohibition. And they were careful not to entertain questions about what kind of interventions make a body either ‘imperfect’ – as noted by the NSWCCA – or indeed perfect. And, as I will clarify, they were very careful to avoid any suggestion that such perfection is always imagined as such through a cultural lens of what constitutes woman or, in the case of male circumcision, what constitutes man.

Against male circumcision

The case of Vaziri and Magennis has become an important text for understanding western legal systems’ relationships to the legal and/or religious practices of communities residing in western jurisdictions. While there are multiple aspects to the practices of female circumcision which challenge the term ‘multiculturalism’ – as it is supposedly emblematised in democratic jurisdictions – the practice of the Dawoodi Bohra Muslim community is particularly significant and embodies a specific challenge because of what we might call its mildness and its medical similarities to male circumcision. The Dawoodi Bohra practice of Khatna involves the nicking of the clitoral hood, and in some cases the removal of a minor ‘lentil size’ piece of skin from the tip of the clitoral hood. Its similarity to male circumcision has been noted, ¹⁶ and is largely regarded as less significant than male circumcision if, using US anthropologist Janice Boddy’s terms, we are examining the weight of the flesh removed. ¹⁷

In the case of Vaziri and Magennis, the ‘nick’ was noted to have been so insignificant that no blood was seen. ¹⁸ Any scarring or residue from the ‘nick’ was undetectable, even when examined with an ultrasound. As Susan Marks, the independent medical expert stated:

There was no evidence of any scarring and the external genitalia appeared normal. In particular, the clitoral hood – and another word for that is prepuce – appeared normal and the anterior part of the clitoral body was visible as a ridge of tissue underneath the skin of the clitoral hood. However, the clitoralhead, and another word for that is glans, was not clearly visualised. ¹⁹

Nevertheless, as Dr Marks stated when questioned:

I would expect that to heal – so everybody heals differently, but most people heal – their skin heals really well and it could heal completely, it could heal leaving a scar, and very occasionally, it could heal with abnormal scarring, but most people heal very well and in that area of the body, there is an excellent blood supply, so things heal very quickly and usually very well because of that excellent blood supply. ²⁰

While it was accepted that there was likely to have been a nick and that this might have healed such that no evidence remained, this obviously small and undetectable act toward the genitals of the two girls left the Supreme Court with a difficulty in assessing their experience. The legislation in NSW has only one category which might apply to the act of ‘nicking’ the genitals of women. That category is ‘otherwise mutilates’ under s 45 of the NSW Crimes Act (the other options under s 45 being ‘infibulation or clitoridectomy’ which are obviously unsuitable as descriptions of a ‘nick’).

The description ‘otherwise mutilates’ as applied to the ‘nick’ meant that the trial judge, Johnson J had to traverse a somatic and semantic journey across what he described as the ‘female genital organ’ and consider what would constitute an ‘injury’ such that it could amount to ‘mutilation’ of this organ. To undertake this journey required that he recruit the World Health Organisation (WHO) definitions of female genital mutilation and then apply these definitions onto the bodies of the girls. That is, Justice Johnson would need to import the WHO type categories of FGM into his judgment, which then allowed him to allocate the ‘nick’ to type IV of the WHO definitions (type IV being regarded as the mildest of the practices of FGM – and which also included pricking, piercing, etc). To bring the ‘nick’ under the WHO definitions of female genital mutilation, however, he would also need to instruct the jury, as he did, that the definition of mutilation could be applied to ‘an injury to any extent’. ²¹ And this is where his judgment came undone, at least in the NSW Court of Criminal Appeal’s opinion.

As I have noted above, the High Court in Australia carefully considered the question of what constituted a ‘mutilation’ in 2019 in regard to a concern with whether the characterisation of ‘an injury to any extent’ could be applied to ‘mutilation’. The NSWCCA however, previous to any deliberation by the High Court, had upheld the appeal by the defendants in Vaziri and Magennis. The appeal expressed criticism of the application of the term ‘mutilation’ to the experience of the two young girls in this case, directly addressing the problem of Justice Johnson’s direction to the jury in 2015 regarding ‘injury to any extent’. As noted by the NSWCCA:

For the reasons set out above, we have concluded, on balance, that the extrinsic materials relied on by his Honour do not permit a construction of ‘mutilates’ that departs from its ordinary meaning and we consider that its ordinary meaning connotes injury or damage that is more than superficial and which renders the body part in question imperfect or irreparably damaged in some fashion. It follows that we have concluded, with the greatest of respect for his Honour’s careful analysis of the legislation, that his Honour misconstrued the meaning of ‘mutilates’ and hence misdirected the jury as to an essential element of the offence. ²²

The words which cultivate ordinary presumptions about what might result from a trauma to the skin or body are ‘injury’ and ‘damage’, but it is the extent which is in question. Hence, what the High Court would then have to discuss was whether the definition of injury needs to render the body ‘imperfect’, or ‘irreparably damaged’. ²³

In order to evaluate whether a body is irreparably damaged, or whether its perfection is impaired, however, one must have an idea or an image of a body without damage; an image of an intact body. Such an image is obviously culturally contingent, relying on an idea of what is significant to a body such that it must function, either biologically or aesthetically, to enable the broader teleological fulfilment of the subject or the individual. There are any number of pathways toward an understanding of culturally specific representations of an intact body such that they render biological fact culturally contingent. To highlight and interrogate this contingency the more obvious comparison of a teleologically functioning body, with parts removed, might helpfully be considered in relation to male circumcision and its legal status.

Male circumcision is helpful here because, in legal terms, a body remains intact or undamaged even after this form of circumcision has occurred. While the High Court did not debate the practice of male circumcision – indeed, we might say that it carefully avoided this analogy (opting for a man’s ‘face’ instead of a penis as analogous) – the document heavily relied on by the High Court in its debates was, as I have mentioned, the Family Law Council’s Female Genital Mutilation: A Report to the Attorney-General. ²⁴ This report was considered closely because of its role in framing the intent of s 45 of the NSW Crimes Act, and although the report has much to say about male circumcision and its comparability to female genital mutilation or female circumcision, these comments were not referenced by the High Court. As the report states:

2.53 Male circumcision. Some suggest that clitoral circumcision is analogous to the circumcision of the male, because it involves removal of the clitoral hood. However, any possibility of comparison ends there. It has been said that in general the term ‘female circumcision’ is misleading because circumcision implies the simple removal of a piece of skin, whereas the procedure on women almost always involves the removal of healthy organs. ²⁵

The High Court might well have noted that, even if they agreed with the unreferenced statement that ‘the procedure on women almost always involves the removal of healthy organs’, in the case of the Dawoodi Bohra practice of Khatna or female circumcision, this involves removal of no such thing, or of anything at all for that matter in this case. Indeed, the coordinate which orients the assessment that ‘any possibility of comparison ends there’ is ‘health’ (such that it is attached to a ‘healthy organ’). The term ‘health’ is intrinsically tied to the teleology of the body, or what is imagined as its natural function, such that health secures the possibility of this function. The foreskin, removed from the penis, does not apparently render the body unable to function or unhealthy, in the terms of the Family Law Council report, either sexually or reproductively. ²⁶ But here is where we see the presumptions appear in FGM discourse – presumptions that render the practices as ‘mutilation’.

Mutilation is what is presumed to interfere with sexual and reproductive function, such that these are intrinsic to the possibility of being a woman. ²⁷ By contrast, male circumcision, either in religious or health terms, does not impair the possibility of being a man. As the report of the Family Law Council continues:

2.54 In Australia, male circumcision is not unlawful. It has religious significance to persons of particular religious persuasions, such as those of the Jewish faith. It is also understood to be performed as an initiation rite on males entering adulthood in some aboriginal communities. ²⁸

The above statement is indistinguishable from the rationales which might legitimate female circumcision in communities where it is practised, because of its significance in religion, in law and within particular Indigenous nations. ²⁹ In many of the practices, including that of the Dawoodi Bohra community as the subjects of Vaziri and Magennis, the flesh removed is substantially less than that of male circumcision (which is notably also practised by the Dawoodi Bohra and is not illegal), but the circulation of the flesh in religious and health terms – as either evidence of a pact with God (in Jewish and Muslim faiths) or as a pact with the whims of public health fashions – does not diminish the ‘being’ of the subject, as such. ³⁰ This is because ‘health’ determines the normative parameters of the intact body. And this is where it becomes apparent that health has its own culturally contingent trajectory.

The healthy body is one which can have pieces removed whereby this removal does not inhibit the function of the person, or pieces can be removed because of what we might call medical necessity, or, in the terms of the NSW Crimes Act, ‘necessary for the health of the person’. Medical necessity is the specific section in laws on female genital mutilation as they appear in most western countries. ³¹ In the example of the NSW legislation, s 45 of the Crimes Act 1900 says:

(3) It is not an offence against this section to perform a surgical operation if that operation:

(a) is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or

(b) is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner or authorised professional, or

(c) is a sexual reassignment procedure and is performed by a medical practitioner.

(4) In determining whether an operation is necessary for the health of a person only matters relevant to the medical welfare of the person are to be taken into account.

Medical necessity allows for the body to be altered in the interests of allowing its flourishing, such as in the case of genital surgeries for the purposes of gender affirmation – noting s 45(3)(c) above – that affirm the body’s articulations with the gender identified by the person who feels and believes that they inhabit a body which requires surgical alteration to achieve this. Medical necessity also allows for genital cosmetic surgery, male, female or otherwise, that affirms the body’s articulation with the proper normative gendered image – in the case of labioplasty or vaginal tightening or labia trimming. ³²

It is worth considering subsection 4 of the NSW legislation in relation to male circumcision in light of these discussions of a normative gendered image. The NSW legislation – that ‘only matters relevant to the medical welfare of the person are to be taken into account’ – specifically distinguishes the necessity of the practices from religious, cultural considerations.

Indeed, in other legislation this emphasis is writ large, such as that of the Female Genital Mutilation Act 2003 (UK), where sub-s 1(5) states:

For the purpose of determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual.

This is obviously a section which would make the practising of male circumcision completely illegal. And it is that contradiction which highlights the obvious point that it is precisely ‘a matter of custom or ritual’ (and sometimes law), which determines the normative body image in any culture. Or put another way, there is nothing natural about a perfect body, and it follows therefore that there is nothing inherently natural or indeed unnatural about a practice which would render such a body imperfect.

Medical necessity in the above examples is distinguished assertively from any cultural influence, as if the practices of female genital cutting in some communities are ‘cultural’ as opposed to medical, and as if the specific section of medical necessity or necessary for the purposes of health, is definitively removed from any cultural influence. While this is obviously not the case with male circumcision, it is arguably also not the case with any practice of female genital cosmetic surgery. The healthy body of woman does not emerge unencumbered from cultural imaginations (nor indeed does the healthy male body or healthy trans body). To function as a woman in western societies (arguably in all societies) the body of woman must appear, act, react and be inhabited in culturally appropriate ways. One could readily argue that the practices of female genital cutting, female circumcision or indeed male circumcision are practices of cultural affirmation surgeries. And certainly, any argument for male circumcision, if it was required, would have resonance with this portrayal of female circumcision. Hence, to correct the Family Law Council, ‘any possibility of comparison’ does not end there, or we might say that the analogy does not end with the name.

Conclusion

This landscape of analogy and foreclosure on analogy is a complex field; a veritable minefield of bodies laid before the court to be understood and dissected. It is in cases such as those of Vaziri and Magennis, where there are convenient and selective analogies, that we see the work of sovereign will. In Vaziri and Magennis and arguably in FGM legislation more broadly, we can see an emphasis on a particular construction of woman and of man, such that particular cultural interpretations of practices can present the body as intact. These interpretations not only render understandings of an imperfect and indeed perfect body, culturally contingent and independent of supposed biological or medical fact, but they elevate particular understandings of cultural practice – which is in many cultures also law – that celebrate specific versions of the body. In short, the laws which demand male circumcision do not undermine the intact body, no matter how much skin is removed, while the merest hint of a ‘nick’ practiced in the interest of law or cultural practice, renders the female body damaged, injured, imperfect and mutilated. This contradiction, not debated or even lightly entertained by the High Court, indicates a remarkable foreclosure on some obvious legal trajectories and further indicates the weight of the name female genital mutilation as a governing imagination in this case. It is an imagination that leaves no room for the subjective experience of the women and girls in this case.