Gynaecologist Dr Dhanuson Dharmasena has this week been found not guilty of performing Female Genital Mutilation (FGM) at the conclusion of a two week trial at Southwark Crown Court where he faced charges of performing a procedure amounting to FGM on a patient following the birth of her child in 2012. This was a landmark case as it represents the first prosecution of its kind in England and Wales.
In England and Wales Female Genital Mutilation is in all forms, aside from those which are medically necessary, illegal under the Female Genital Mutilation Act 2003. The fact that the offence is afforded its own legislative Act and that an offender may face conviction up to 14 years under s.5(a) FFM 2003, shows how seriously the offence is treated. The NHS estimates that as many as 20,000 girls under the age of fifteen are at risk of FGM each year, and a further 66,000 women are living in the UK with the consequences of FGM. These numbers are alarmingly high, and whilst they are only estimates and the true extent of FGM practices in the UK is unknown, they point towards prevalence within certain cultures and factions of society. With this in mind then, one could be forgiven for being somewhat surprised by, and indeed for questioning the fact that the currently on-going case of Dr. Dharmasena is the only prosecution of FGM thus far.
The main reason for this being the first prosecution of its kind is quite simple. FGM is incredibly difficult to catch and even in cases where the police reports have been filed, there has been insufficient evidence to progress them any further. There is, as the NHS states, a ‘hidden’ nature to the crime, making it difficult to recognize and even more so to attribute to a particular offender. It is thought that of the estimated 66,000 women living in the UK with the consequences of FGM, a significant number are transported back to their countries of origin for the procedure to be carried out, or have been victims of FGM prior to moving to the UK. Although under s.3 of the FGMA it is illegal to assist in or carry out FGM overseas, it is even more difficult to prosecute in such circumstances.
The lack of prosecutions raised high concern and was questioned, in particular because of the fact that the police have recorded no less than 140 complaints regarding FGM in recent years. Dr. Dharmasena’s prosecution was hailed as a breakthrough by campaigners in their fight to eradicate the practice of FGM, which currently affects an estimate of 140 million women and girls worldwide.
The desperate need for a successful conviction had drawn criticism from medical practitioners long before Dr. Dharmasena’s trial began. Dr. Katrina Erskine, a leading gynaecologist, in an interview with the Independent, spoke of her anger at the charges against Dr. Dharmasena and suggested they were based on political grounds, rather than on the priority of women welfare. Dr. Erskine expressed concern that if the prosecution were to lead to a successful conviction, it may cause other medical professionals to act with undue caution where legitimate procedures concerning female genitalia are concerned. She suggests that the real issue of FGM – the barbaric, painful and unnecessary disfigurement of the genitals via the removal of the outer genitals – had become lost in the case. The case instead concerns the repair of a previously administered FGM wound, affected by THE childbirth.
Dr. Dharmasena performed the alleged assault on the defendant after she had given birth. During labour the stitches she had, from a previously administered procedure, were torn and he was accused of sewing her up in a manner which amounted to FGM. It emerged during the trial that hospital trust failings had meant that the patient was not placed on an FGM pathway – which would have meant that a doctor with FGM experience saw her – and Dr. Dharmasena only discovered her genital mutilation when she went into emergency labour. It was also alleged that he did this under the encouragement of another man, Hasan Mohammed. Mr. Mohammed was also found not guilty of charges brought against him. When questioned following the incident, Dr. Dharmasena initially justified the procedure by claiming to have been following the wishes of both the patient and Mr. Mohammed. However, he subsequently amended his justification and suggested that the procedure was medically necessary, something that prosecutor Kate Bex claimed he has done since he has ‘…familiarised himself with the law…’. This was clearly rejected by the jury.
The case of Dr. Dhanuson Dharmasena has without doubt signified a watershed moment in the ongoing pursuit of the eradication of the Female Genital Mutilation. There was a concern from the medical world that a conviction would potentially set a dangerous precedent that medically required procedures could become subject to FGM charges and that shortcomings within the NHS caused an inexperienced doctor to be dangerously exposed when dealing with his patient. Dr. Dharmasena’s acquittal, determined by a jury after less than half an hour of deliberations, was welcomed by medical professionals and the NHS, even though it was a potentially damaging blow to the campaigners and groups hoping for a conviction. However, anti-FGM campaigner Mary Wandia told the BBC that she was pleased, as the case “…communicates that FGM is against the law…” and shows “…that the law will be fully implemented.” However, this case, even without a successful conviction, marks a major step forward in the ongoing fight against FGM.