Update: 26.10.2011

Swiss parliament: explicit ban on genital mutilation

The mutilation of female genitals will become an express offense in Switzerland. In their final votes on 30 September, the National Council and the Council of States have both agreed clearly to a ban and to an amendment of the Swiss Criminal Code by adding a new article. According to Article 124, it now is a punishable offense «to mutilate the genitals of women or girls, impair their natural function considerably and lastingly or harm them in any manner».

Those found guilty of carrying out or encouraging female circumcision will face up to ten years in prison or will have to pay substantial fines regardless of whether the criminal act was committed in Switzerland or abroad. The statutory period of limitation shall generally be 15 years. If victims are under 16 years of age, prosecution shall be possible to at least up to the age of 25.

General ban on genital mutilation called for

Genital mutilation represents a severe violation of the integrity and dignity of the affected women and girls. Various human rights bodies and organisations have been petitioning for a ban for years, among them UNICEF Switzerland, which assessed the present as being insufficient, estimating that around 7,000 women and girls in Switzerland are affected or threatened by these procedures. Up to now, in Switzerland there have only been two processes dealing with cases of genital mutilation, since it was only infibulation and excision that were perceived as grievous bodily harm according to Art.122 of the Swiss Criminal Code therefore were liable to persecution.

The new statutory offence now includes all kinds of genital mutilation. At the same time it defines concretely that genital mutilation is punishable even when a grown-up person agrees to the procedure. Tattoos, piercings or certain aesthetic surgery in the genital area are exempt from the law. Politicians, authorities and circles of experts not only hope for recognition of all kinds of unwanted genital mutilation, they also aim for a symbolic deterring effect. Genital mutilation will be treated as criminal offence liable to public prosecution as before. And it will not only be the persons performing the mutilation that will be punished but also co-perpetrators or instigators, such as the parents.

Does global law really protect the girls?

According to the new regulations, persons make themselves liable to prosecution if they have a genital mutilation performed abroad, even if genital mutilation should not be considered to be a punishable offense in the relevant country. This should help avoid that children growing up in Switzerland are taken to their home country to be operated on.

Some organisations consider this regulation as one of the strong points of the law. The Swiss Centre of Expertise in Human Rights (SCHR) on the other hand pointed out the possible side effects of this regulation in June 2011, since this far-reaching ban disagrees with Article 6 ECHR, which states that «no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed».

With respect to the Asylum Act and the Aliens Act the SCHR article stated that parents and their circumcised daughters that seek asylum in Switzerland may not be admitted (in the sense of Art 53 Asylum Act), and would have to be deported (Art. 121 Para. 3-6 Federal Constitution).

Intersexuality

In addition, it is a shame that it wasn’t tried to solve the problem of sex transformation with intersexual persons along with the newly defined statutory offence. Forced operations on very young children which are born without distinct sexual characteristics are normal in Switzerland and are very questionable from a self-determination point of view of the persons affected. For this reason, Amnesty International and Terre des Femmes (TdF) had called for an inclusion of this kind of operations into the legislative consultation process concerning the ban on genital mutilation.

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