Reflections on Female circumcision, universal jurisdiction and equality before the law

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Female circumcision, universal jurisdiction and equality before the law by Nicolás Zambrana-Tévar

A couple from Gambia who lives in Alcañiz (Aragon, Spain) has been condemned to 6 (the father) and 2 (the mother) years in prison, respectively, for being responsible, alone or with the help of unknown accomplices, of the circumcision of their daughter, who is now two years old (please see Decision Nº26, of 15 November 2011 / Sentencia Nº26 de 15 de noviembre de 2011; ). It is the first case of this kind in Spain that reaches the stage of oral proceedings. There have been other cases before this one but they have all been stayed after it has been determined, in the course of the investigatory stage, that the facts had taken place abroad, taking also into account the difficulties encountered in finding out the identity of those responsible for the atrocity. In this case, it has been considered proven that the female circumcision was carried out in Spain. The Spanish 1994 Criminal Code punishes the severance of the genitals (in males or females) with up to 12 years in prison and the withdrawal of the children’s custody, which is subject to the plea of the Prosecutor. The tribunal has been more lenient with the mother because it has considered proven that she did not know that female circumcision was illegal in Spain. The tribunal has not given any importance to the defence’s arguments that the father was bound “by the weight of tradition”. Furthermore, the tribunal has underscored that this is an attack against a woman’s rights and sexuality and can also lead to trauma and infections of different kinds. Interesting for international lawyers is the fact that Spanish courts have universal jurisdiction to adjudicate in cases of female circumcision, no matter the nationality of the victim nor of the perpetrator, nor the place where the facts take place. This was the case prior to a 2009 legal reform which, according to many, did away with universal jurisdiction in Spain because, after the aforementioned reform, some sort of link with Spain is also required for Spanish courts to have jurisdiction. In the case of the Gambian couple, the Prosecutor alleged and proved that the circumcision took place in Spain, so the rules on universal jurisdiction have not been invoked. Nevertheless, the couple insisted that the facts had taken place in Gambia and that those responsible where the girl’s grandparents. Furthermore, the Spanish constitution, as so many others, contains a specific precept on equality before the law. Could the Spanish rules on universal jurisdiction for female circumcision be against that principle of equality and be, therefore, unconstitutional, for being only applicable to victims who are women and not to male castration? This may not be the case after the Spanish Constitutional Court issued a judgement in 2009 which considered to be constitutional a 2004 statute which punished slightly more heavily domestic violence against women than against men. We will have to wait until another female circumcision case arises in order to see if this issue of the unconstitutionality of universal jurisdiction rules is considered.

Dr Nicolás Zambrana-Tévar