Laws aimed at protecting against female genital cutting (FGM/C) and at ensuring assistance and support for victims

Female genital cutting (FGM/C) is illegal in Switzerland (Art. 124 of the Swiss Criminal Code [CrimC]. In 2012, signalling that the practice would not be tolerated, existing criminal offences associated with the protection of life and limb were supplemented, or rendered more specific, through the introduction of an explicit ban on the cutting of female genitalia.
Legally binding international human rights treaties, together with guarantees protecting human rights written into the Swiss Federal Constitution (BV), require Swiss authorities to protect girls and women from FGM/C. In practice, the focus is on child protection issues; questions of reporting rights and mandatory reporting obligations; matters concerning claims for assistance under the Victim Support Act; and issues relating to the laws governing asylum and foreign nationals.

Fundamental right to physical and mental integrity

The Swiss state has an obligation to protect women and girls effectively against violence in the private or domestic environment. Article 10 of the Swiss Federal Constitution guarantees the right to life and the right to physical integrity and prohibits cruel, inhuman or degrading treatment. According to Article 11 of the Federal Constitution, children and young people have the right to special protection of their integrity and the stimulation of their development.

Prohibition of the cutting of female genitalia under criminal law

The Swiss Criminal Code (Art. 124 CrimC) defines any and all forms of the cutting of female genitalia as a criminal offence, irrespective of whether a severe or mild form of FGM/C is involved. The punishment is a prison sentence of up to ten years or a fine. Whether the FGM/C causes the impairment of bodily functions or if medical and hygienic standards are satisfactory is irrelevant. Whether the FGM/C is performed under irreproachable hygienic and medical conditions is of no concern either.

Perpetrators: who is punished?

Firstly, the person who performs the genital cutting is liable to punishment, i.e. the cutter or a medical professional. Parents or relatives can be sentenced to the same punishment if they arranged or consented to the genital cutting. The mere presence of parents when the offence is committed constitutes sufficient grounds to determine complicity. If the parents make a significant contribution to the planning of the genital cutting, for example if they arrange their daughter’s trip to a country where the genital cutting is carried out, this then constitutes sufficient grounds for punishment.

Any person who incites another to carry out FGM/C is also liable to punishment (Art. 124 CrimC).

Offences committed abroad are also liable to punishment

The penal provision set down in Article 124 of the Criminal Code is intended to prevent girls from being taken to their home countries, or to some other country, in order for genital cutting to be carried out. FGM/C is therefore a punishable offence in Switzerland even if it is, or was, carried out abroad. Whether or not the country in question has prohibited FGM/C is irrelevant.

It is not necessary for the accused to have legal domicile in Switzerland in order to be subject to criminal prosecution.

According to the wording of the penal provision, a person who perpetrates or arranges for the perpetration of the offence before entering Switzerland must also automatically be prosecuted. This is primarily intended for cases in which the parents subject their daughter to genital cutting before departing from their home country.

Limitations on prosecution

Prosecution can only be brought up to 15 years after the offence is committed. Nevertheless, however, if the offence is committed against a child under the age of 16, the period for prosecution runs at least until the victim’s 25th birthday (Art. 97(2) CrimC). Criminal proceedings can be commenced up to that date.

Violation of other criminal code provisions

Under certain circumstances, the criminal offence of “cutting of female genitalia” can be associated with the violation of further penal provisions, which may increase the severity of the sentence. Specifically, the following offences may be involved:

§ Endangering life (Art. 129 CrimC)

§ Coercion (Art. 181 CrimC)

§ False imprisonment and abduction (Art. 183 CrimC)

§ Neglect of duties of care, supervision or education (Art. 219 CrimC)

§ Abduction of minors (Art. 220 CrimC)

Consent to mild forms of female genital cutting or to reinfibulation

Article 124 of the Criminal Code treats any form of cutting of female genitalia as a serious assault. Consequently, an adult woman cannot consent to genital cutting. This is not the case with “cosmetic” genital surgery, which is gaining popularity among women in Switzerland and elsewhere. The preliminary draft of the penal provisions envisaged permitting consent for women of adult age of full mental capacity. However, Parliament subsequently voted for a comprehensive prohibition of female genital cutting. The rationale for this was that it would be almost impossible to prove free will in a case of FGM/C and that such a distinction would therefore be problematic. The legislator felt that the risk that women would be pressurised into consenting to a mild form of genital cutting was too great. Conversely, the legislative history of this penal provision makes it clear that the legislator did not intend to criminalise minor surgical procedures on female genitalia, performed for aesthetic reasons (e.g. genital piercing, labioplasty and other cosmetic surgeries analogous to Type IV of the WHO definition of FGM/C). It is still unclear, for instance, how a woman’s wish to have reinfibulation after childbirth should be assessed from a legal standpoint. Legal scholars have taken different stances on this question.

The recommendations in international and national guidelines directed at health professionals are clear, however: patients’ requests for reinfibulation should not be accepted.

The right to protection, advice and assistance for victims of FGM/C

The child protection authorities are primarily responsible for protecting minors from the risk of genital cutting or genital cutting that has already occurred and for supporting them. The authorities are required to take protective measures when a child’s welfare is at risk. Child protection under civil law in the Swiss Civil Code (CC) (Art. 307-315b CC) provides for scaled interventions that curtail parental custody rights to a degree determined by the severity of the endangerment. These range from counselling, the issuance of official parental reminders or the appointment of a deputy to advise and support, right through to the withdrawal of the parents' right to decide where a child should live and, in some cases, to the complete withdrawal of parental custody. Child protection measures must always be commensurate with the circumstances. The welfare of the child is of paramount importance. The child must be heard before measures are adopted. Whenever possible, professionals familiar with the issues of female genital cutting should be involved in any decisions. Since cases of FGM/C normally involve a conflict of interest between children and parents the child protection authority appoints someone to represent the child and ensure that their interests are safeguarded. Victims who are minors have the right to free personal legal representation (Art. 314abis CC). The child protection authorities in the child’s place of residence are the competent authorities.

Mandatory reporting obligations and reporting rights

The authorities need to be aware of the victims and the perpetrators if they are to provide protection against female genital cutting and assistance for victims. In cases where the victims are minors, any person, even someone who is bound by official secrecy or professional confidentiality, can file a report with the child protection authority.

Under current federal law, the following applies: in connection with suspected FGM/C, any person who is not bound by official secrecy or professional confidentiality can file a report with the criminal justice authorities (police or office of the public prosecutor) or contact the child protection authorities to report a high risk case.

Persons subject to official secrecy or a duty of professional confidentiality (e.g. doctors, midwives, psychologists and their assistants) may not make a report or disclose information until they have been released by the superior authority or supervisory authority from their duty to maintain official secrecy or professional confidentiality, or have obtained permission to make a report or disclose information from the person concerned (Art. 320 CrimC and Art. 321CrimC). However, when the person concerned is a child, even persons bound by official secrecy or a duty of professional confidentiality are entitled to report to the child protection authority if doing so is in the child’s interests (Art. 364 CrimC).

Staff of victim support services are subject to a special duty to maintain confidentiality (see below).

There is no "duty to inform" on criminal activity in Switzerland. Only the criminal justice authorities are under an obligation to report any criminal offence that comes to light or is reported to them in the course of their official activities, unless they themselves are pressing criminal charges (Art. 302(2) of the Swiss Criminal Procedure Code (CrimPC)). The authorities are required to notify the child protection authorities immediately if minors are involved in the offence. (Art. 75(3) CrimPC). There is also a duty to report notifiable offences that pertains to those acting in an official capacity; if the welfare of a child appears to be at risk, people “acting in an official capacity” are obliged by law to report this to the child protection authority (Art. 443(2) CC). The term “official capacity” is to be interpreted broadly in this context. This does not necessarily imply civil servant or government employee status. Anyone carrying out public service activities are in this category (for instance teachers, social workers, school doctors, etc.). People who fall under this legal obligation to report offences do not need to be released from their duty to maintain confidentiality before filing a report.

Cantons may also have their own specific rules for disclosure (according to their criminal justice authorities) and/or rules for notifiable offences (according to their child protection authorities)

Assistance to victims in accordance with/as per the Swiss Victim Support Act

Those affected by FGM/C are entitled to claim assistance (Art. 1 of the Victim Support Act). Victims of an offence perpetrated in Switzerland are entitled to benefits regardless of their nationality or residency status. Victims of genital cutting performed in another country are entitled to benefits only if their domicile was in Switzerland at both the time of the offence and the time of the application.

Assistance comprises free advice and appropriate medical, psychological, social, material and legal support. (Art 1(2), Victim Support Act).

Entitlement to benefits is not dependent on the initiation or continuing pursuit of criminal proceedings, and the victim cannot be forced to file a report pressing criminal charges either.

It has to be borne in mind that the staff of victim support services are under a strict obligation to maintain confidentiality: they must not provide any information to authorities or private parties (Art. 11, Victim Support Act). This duty of confidentiality can only be set aside with the agreement of the person being advised. In cases where the physical integrity of a minor victim appears to be at high risk – e.g. due to an acute danger of FGM/C –the victim support service can notify the child protection authority or criminal justice authority. However, they are under no obligation to make a report, even in connection with the endangerment of a minor. A report should only be made without the victim’s consent if it is imperative in that specific case in order to protect the victim or other minors.

Protective measures in criminal proceedings

When criminal proceedings are launched, Swiss law requires that special measures to protect the victim be considered,

e.g. protecting the victim’s right to the protection of their privacy and the right to be accompanied by a confidant (Art. 117 CrimPC). The Swiss Criminal Procedure Code outlines special measures to protect children, particularly when the examination hearing or the confrontation hearing with the accused might cause the child serious psychological suffering (Art. 154 CrimPC). For instance, the child cannot be interviewed more than twice, and only an investigating officer specifically trained for this purpose can conduct the interviews. Audio and video recordings of the examination hearing are to be made if the child does not wish to confront the accused.

A physical examination is mandatory (Art. 251(4) CrimPC) insofar as such an examination is essential for the investigation of the offence.

The criminal justice authorities (police and office of the public prosecutor) must inform the victim in full of his or her rights and obligations during the first examination hearing (Art. 305 CrimPC).

Issues relating to laws governing asylum and foreign-nationals

Asylum and the principle of non-refoulement in cases of female genital cutting

A credibly presented threat of being at imminent risk of genital cutting is recognised as grounds for asylum if the country of origin does not provide effective protection against FGM/C.
In this regard, the State Secretariat for Migration (SEM) makes a distinction in practice between asylum seekers from countries whose governments are actively combating FGM/C and countries in which the state has not taken measures to combat FGM/C. The authorities look at whether the victim’s country of origin provides effective protection against a threat of genital cutting. Reference to the existence of a law prohibiting FGM/C is not alone a sufficient reason to deny a request for asylum. It must be possible to avail of the legal protection effectively in practice. The authorities also examine whether what is called an “internal flight alternative” is available to the victim and her parents, meaning whether there is a region within their country of origin that does offer effective protection to which they could relocate. An asylum request will be denied if the authorities determine that an internal flight alternative exists. Temporary admission can be granted, however, if carrying out the removal order appears to be impossible, impermissible or unreasonable (Art. 83 of the Swiss Act on Foreign Nationals [FNA)]).

However, despite the recommendations of the UN High Commissioner for Refugees (UNHCR) to the contrary, the SEM has usually granted protection only to prevent an imminent threat of genital cutting and not if the procedure has already taken place.

 

 

Threat of expulsion  

Irrespective of the sentence imposed, if convicted the perpetrator faces the threat of expulsion from Switzerland. (Art. 66a(1b) CrimC). The court can refrain from ordering expulsion only in exceptional cases “if it would cause serious personal hardship to the foreign national concerned and if the public interest in expulsion does not outweigh the private interest of the foreign national in remaining in Switzerland.” (Art. 66a(1b) CrimC). It is not clear how the courts will interpret this provision. The girl concerned would receive a double punishment through the expulsion of her parents, and expulsion would make it impossible to protect any of her siblings who had not yet been subjected to genital cutting, as they would be expelled along with their parents.

References

Jositsch Daniel/Murer Mikolasek Angelika, Der Straftatbestand der weiblichen Genitalverstümmelung, AJP/PJA 10/2011, S. 1281 ff.; Mona Martino, Zum neuen Straftatbestand der Verstümmelung weiblicher Genitalien, in: Christina Hausammann/Walter Kälin (Hrsg.), Geschlechtergleichstellung im Migrationskontext: Bevormundung oder Emanzipation, Bern 2014, S. 115 ff.

WHO, WHO guidelines on the management of health complications from female genital mutilation, Geneva 2016. PDF; gynécologie suisse/Schweizerische Gesellschaft für Gynäkologie und Geburtshilfe, Guideline - Patientinnen mit genitaler Beschneidung: Schweizerische Empfehlungen für Ärztinnen und Ärzte, Hebammen und Pflegefachkräfte, Stand 02.2005/Ratifiziert Mai 2013. PDF

gynécologie suisse/Schweizerische Gesellschaft für Gynäkologie und Geburtshilfe, Guideline - Patientinnen mit genitaler Beschneidung: Schweizerische Empfehlungen für Ärztinnen und Ärzte, Hebammen und Pflegefachkräfte, Stand 02.2005/Ratifiziert Mai 2013. PDF

Cottier Michelle, Zivilrechtlicher Kindesschutz und Prävention von genitaler Mädchenbeschneidung in der Schweiz, Zürich 2008.

Affolter Kathrin, Anzeige- und Meldepflicht (Art. 443 Abs. 2 ZGB) - Gesetzliche Ausgestaltung in den Kantonen, Zeitschrift für Kindes- und Erwachsenenschutzrecht 2013, S. 47 ff. PDF

UNHCR, Guidance note on refugee claims relating to FGM, 2009. PDF