Abstract

Many countries in the world criminalise female genital mutilation (‘FGM’) in an effort to curb this practice that harms millions of women and girls around the world. However, successful prosecutions of the offence are rare, which suggests that using the criminal law to fight the practice is not an ideal solution. In a recent Australian case, three accused were found guilty of FGM-related offences, including the mother of the two young victims. Drawing from this case, this article emphasises several aspects which may be of relevance for South Africa in implementing its own anti-FGM legislation, especially in relation to the definition of FGM, the investigation process, and the sentencing for FGM when the perpetrator is a parent. The case provides an opportunity to interrogate several aspects of the South African legal framework pertaining to FGM. It is argued that legal reform or an innovative interpretation of the Children’s Act 38 of 2005 may be needed in order for all FGM types recognised internationally to be considered as offences under the Act. It is also argued that the current legal framework, which does not criminalise FGM in relation to adult women, may be discriminatory, and that the legal position in relation to women and girls who consent to the practice requires clarification.