Regulating female genital ‘mutilation’ in Malta

Abstract

The prevailing discourse on Female Genital Mutilation (FGM) has mainly focused on whether the practice should be eradicated by the international community and how such eradication may be brought about. The focus of this thesis is on a specific kind of criminalisation as a strategy for FGM regulation and eventual eradication; albeit criminalisation as a general strategy is directly or indirectly imposed upon state parties like Malta by a number of Human Rights Conventions, especially the Istanbul Convention. Malta has chosen to regulate FGM by an ad hoc provision in the Maltese Criminal Code and the aim of this analysis is to evaluate the effectiveness and the impact which this particular regulatory approach may have within Maltese society. The thesis reconstructs the debates prevalent at the international level. These debates highlight the usefulness of a non-draconian regulatory model which could potentially enact the humanitarian will to use criminal law to protect all females from being involuntarily subjected to FGM, without turning a completely deaf ear to the outcries of those Third-World FGM-supporters who advocate respecting this practice on the basis of tolerance towards cultural diversity; thereby facilitating its voluntary abandonment. Therefore, this thesis evaluates different criminal regulatory models, including foreign models; namely those present in the UK, Italy, France, US and Canada and the general provisions under Maltese criminal legislation, which could have been applicable to FGM pre-2014. This evaluation aims to highlight the different regulatory models, which were available to the Maltese legislator for regulating FGM, prior to the introduction of Act I of 2014; and to identify a regulatory model which ensures respect towards cultural diversity, to the extent that this is compatible with conventional Human Rights standards. The strengths and weaknesses of the Maltese regulatory model on FGM are assessed in the light of these different models. Finally, a set of guidelines which explain how the current model may be improved is presented in the hope that the current legislation will be reviewed by Parliament and the present lacunae and shortcomings addressed.