FGM prosecutions - where now?

FGM prosecutions - where now?

The criminalisation of female genital mutilation (FGM), also known as female circumcision, has not yet resulted in any successful prosecutions. This could be lauded as a great success if the evidence suggested this was because FGM had ceased. All the pointers are that this practice continues. Thus the failure of a single prosecution to be brought prompted rising criticism, until 16 months ago the first prosecution was announced. The acquittal this week of Dr Dharmasena brings some of the difficulties into focus.

Firstly, the woman did not want the prosecution brought. 

That is not necessarily a problem. The cultural conditioning of victims of particular crimes may often mean that they do not view themselves as victims. Neither is the victim's cooperation nor consent necessary for prosecution - it is the Crown who prosecutes. However, it does make a prosecution more difficult.

Secondly, the doctor claims that the suture inserted was on the grounds of medical necessity, and he did not realise that it might be illegal. 

Ignorance of the law is no excuse, although it can establish lack of the necessary mens rea in certain circumstances. However, it might affect the decision-making of the jury. The jurors might have considered that even though the offence was technically made out, the doctor's actions were not sufficiently wrong as to merit criminal punishment. In legal language, a perverse acquittal such as happened with Clive Ponting, prosecuted for revealing official secrets about the General Belgrano sinking.

Here the communication between the midwives and the doctor would be crucial. The jury when faced with judging whether that single stitch was reinfibulation (restoring the genitals to the state of genital mutilation that existed prior to childbirth) or a bona fide medical repair, may simply have been able to state with certainty that the former was the case.

So is this acquittal a sign that the law is essentially unenforceable, or simply a sign of an overzealous CPS trying to prove that it is on top of the job?