A MARRIED COUPLE yesterday became the first people in Ireland to be convicted of carrying out female genital mutilation (FGM).

The prosecution had argued that the couple allowed the practice to be done to their daughter, who was almost two at the time, on 16 September 2016, rather than carrying it out themselves.

FGM, which refers to the ritual cutting or removal of some or all of the external female genitalia for non-medical reasons, can have a lifelong impact on a person’s physical and mental health.

The practice has been illegal in Ireland since 2012.

The couple were also found guilty of a separate charge of neglect related to the same incident. The jury’s decision was unanimous.

The mother and father, who can’t be named for legal reasons, had strongly denied the charges against them.

The couple, who were remanded in custody yesterday, will be sentenced by Judge Elma Sheahan on 20 December. The FGM offence carries a maximum sentence of 14 years.

The man, aged in his 30s, and the woman, aged in her 20s, had pleaded not guilty to the charges. They had claimed their daughter sustained her injuries after falling onto a toy while not wearing a nappy at the family’s Dublin home.

This version of events was disputed by three medical experts who gave evidence.

‘Because I am a Muslim’

Over the course of the trial, issues of race, ethnicity, religion and culture were raised – and how the inclusion of certain evidence could be prejudicial.

Both the accused had expressed the view that their race and/or religion was part of the reason they were charged with carrying out FGM. The couple have both lived in Ireland for years but are originally from an East African country where FGM is very common.

The female accused, who is an Irish citizen, did not take the stand during the trial but the content of interviews carried out by gardaí with her in December 2016 were read in court.

In one exchange, the woman told gardaí she believed she was charged with allowing FGM to happen “because I am Muslim, I am black, and in my country they do that”. She added that she did not think she would have been charged if she was a member of another religion such as Christianity.

When giving evidence via an interpreter on Tuesday, the male accused said the presumption he carried out FGM was “based on preconceived ideas because I’m a Muslim from [the country in question]“.

Some Muslims, Christians and members of other religions carry out the practice. At least 200 million girls and women have undergone FGM in around 30 countries, mainly in Africa, the Middle East and Asia.

‘No different than John and Mary Murphy’

In his closing remarks, Patrick Gageby SC, who represented the female accused, on Wednesday reminded the jury that his client “should not be treated differently than if she and her husband were John and Mary Murphy whose family have been 300 years in Ireland”.

Gageby, referencing the presence of Lady Justice on the front of the Criminal Courts of Justice building in which the trial was taking place, noted that she has a “scarf around her eyes” not her head, like his client, noting that the blindfold represents impartiality.

“The concept that one might attach a motive to [my client] on account of her origin would be reprehensible and, of course, the prosecution hasn’t done it. I’m not surprised that they haven’t done it because it would be odious if they had,” Gageby said.

Race and religion, and how they might impact the outcome of the case, were discussed in the absence of the jury last Friday.

Judge Sheahan heard arguments for and against allowing certain sections of a report written by prosecution witness Dr Deborah Hodes, an FGM expert based in the UK, to be presented to the jury and submitted as evidence.

Hodes viewed DVD footage of three examinations carried out on the girl at Our Lady’s Children’s Hospital, Crumlin (OLCHC) in September and December 2016. She concluded that FGM Type 1 had been carried out, meaning that part of her cliotoris was removed, in line with what two doctors from OLCHC had previously told the trial.

The defence had argued that some of Hodes’ evidence would overlap with the evidence given by Professor Thambipillai Sri Paran, who carried out surgery on the girl, and Dr Sinéad Harty, who examined the girl.

They also raised a number of concerns about the possible prejudicial impact of certain elements of Hodes’ report. Part of her submission detailed the prevalence of FGM in the country the couple are originally from, who typically carries it out, and how it is done.

Hodes’ report also detailed the cultural reasons people from certain backgrounds carry out FGM. The defence stated that the inclusion of such evidence would have a prejudicial effect.

Gageby argued that the inclusion of such evidence would profile his client based on her ethnicity and race. “None or very little of it can properly be admitted, but of course that’s a matter for the court to decide,” he said.

“One has to ask, what is the purpose of Dr Hodes devoting a very large part of her report to [this country] and, what has [this country] got to do with the case?,” Gageby said, noting that his client left her home country when she was a teenager and is an Irish citizen.

He said he was of the view that such evidence would seek to “establish that it is much more likely that my client, because she comes from [this country], is likely to have either done this or caused it to be done”.

Speaking about Hodes’ evidence on FGM in the country in question, Gageby stated: “It is very hard to see how it exists on the page unless it is given for the purpose of inviting the jury to hold that it is much more likely that my client did this or suffered it to be done because of everything Dr Hodes said about [this country].”

The report in question, he told the court, noted that FGM is usually carried out by women, often with the assistance of the mother. He argued that the inclusion of such remarks “certainly places a larger black mark against my client than it does against her husband”.

He said the report, should it be submitted as evidence would be “a substantial plus to the prosecution, either through the front door or the back door” and would invite the jury “to believe that it is much more likely that [the female accused] committed the act because she is from [this country]”.

Previous cases

The defence cited a number of previous cases when making their argument about prejudicial evidence. They referenced the judgment of Mr Justice Donal O’Donnell in the case of Gerald McNeill, who was convicted of sexually assaulting a young girl in 2004.

In April 2011, the Supreme Court dismissed McNeill’s appeal against his conviction. The case raised issues concerning the admissibility of background evidence, the defence noted.

McNeill, from Co Roscommon, had argued that it was unfair for background evidence of an ongoing sexual relationship between him and the girl – in relation to which he was not charged – was correctly admitted as evidence during his trial. He claimed the admission of such evidence was prejudicial. McNeill was arraigned on eight counts related to abuse of the girl between 1989 and 1997; he was convicted on seven counts.

The defence referenced remarks made by O’Donnell in his judgment. Gageby stated: “Mr Justice O’Donnell, who gave one of the three judgements, speaking with the majority, in [the McNeill case] – talked about what evidence is included” and how it “could lead a jury to believe the accused has a propensity to commit the crime”, but may be included if considered relevant to some fact in the case.

In his submission, Mr Justice O’Donnell said the issues raised were of concern to the court and would “benefit from a comprehensive review, perhaps by the Law Reform Commission” which could take into consider Irish and international jurisprudence and “the best contemporary learning in the field of psychology and sociology in relation to this troubled area”.

“One has to ask, what is the purpose of Dr Hodes devoting a very large part of her report to [this country] and, what has [this country] got to do with the case? My client is now an Irish citizen,” Gageby said.

He argued that there was “only one logic” to the inclusion of such evidence – namely “to establish that it is much more likely that my client, because she comes from [this country], is likely to have either done this or caused it to be done”.

Gageby argued that this section of the report “certainly places a larger black mark against my client than it does about her husband”. He said its inclusion as evidence would be “a substantial plus to the prosecution, either through the front door or the back door – inviting the jury to believe that it is much more likely that she committed the act because she is from [this country]”.

The woman was visibly upset while this topic was being discussed, and the court took a 15-minute break to allow her to compose herself. Over the course of the trial, proceedings were suspended on a number of occasions as one or both of the parents became emotional.

‘Ethnic and racial overtones’

Citing another previous case, Gageby referenced a Supreme Court decision in 1999 which held that legislation introduced in 1989 by the then Taoiseach Charles Haughey, aimed at establishing the Great Blasket Island as a national park, was unconstitutional.

In July 1999, the Supreme Court unanimously decided to uphold a previous High Court ruling by Mr Justice Budd which found that the Act had created two categories of land owners. The first category included people who were resident on the island before 1953 (when the last of the islanders left) and their relatives. The second category included people who were not a native resident or relative but had bought land on the island.

Delivering the Supreme Court decision, Mr Justice Barrington said this categorisation was dubious and had ethnic and racial overtones. Gageby argued that similar issues of race and ethnicity were at play in the FGM case.

Obviously the aforementioned cases concerned issues that are completely separate to FGM, but the defence cited them due to the fact they dealt with the risk of prejudicial evidence as well as matters of ethnic or racial profiling.

As the FGM trial was the first of its kind in Ireland, there were no previous cases on this specific charge to compare it too.

Colman Fitzgerald SC, representing the male accused, echoed Gageby’s sentiments last Friday. He said the inclusion of evidence detailing the prevalence of FGM in the country in question, and the cultural reasons it is carried out, would be legitimate “if there was a shred of evidence that my client or indeed his wife” approved of FGM. He said such evidence did not exist and therefore the inclusion of this information would be unfair.

He said the submission of such evidence would appear to be “based upon a presumption that because they come from a particular culture they approve of a particular practice”.

Fitzgerald said he was not “for a minute” suggesting that Hodes was not “a predominant expert” on FGM, but that certain elements of her evidence would likely be prejudicial.

Knowledge and understanding of FGM

Replying to concerns raised by the defence in relation to certain evidence being presented to the jury, prosecuting counsel Shane Costelloe SC said he didn’t agree with the race and ethnicity arguments put forward “but that’s neither here nor there”. However, he said he would not include statistics and certain other information about FGM in the country in question as evidence.

Costelloe told Judge Sheahen the prosecution was “not at all trying to say that the accused is more likely to be guilty because of where she comes from” but needed to present the reasons why FGM may take place. He said it would be “most unfair” if the prosecution was “hamstrung in not being able to explain to the jury that otherwise fair, decent parents might engage in FGM for reasons set out (in Hodes’ evidence)”.

He noted that the accused, when asked, had on “numerous instances” told gardaí and doctors about their knowledge of FGM; their attitudes to it (they both said did not agree with the practice); and, in the case of the female accused, that she had undergone FGM herself.

“We would be left with a scenario where their accounts give their explanation as to how [their daughter] was injured without all of the other information that they provide about their knowledge and understanding of and attitude to FGM.”

Costelloe noted that if Hodes’ evidence was amended, records of garda interviews with the accused – which were due to be read before the court later in the trial – might also need to be edited.

‘An appropriate expert’

In relation to the inclusion as evidence of the cultural reasons as to why FGM is carried out, Judge Sheahan told the court on Monday she was “persuaded by the defence that the prejudicial issue would outweigh the probative value” of such evidence and as such should not be submitted.

Sheahan stated that certain sections of Hodes’ evidence “doesn’t or couldn’t speak to the personal knowledge or other state of understanding of the accused [of FGM]”. She said references to the prevalence of FGM in the country in question should not be presented to the jury.

The judge said the medical evidence due to be given by Hodes was fair to include, describing her as “an appropriate expert” who has “the necessary expertise”. She concluded that Hodes “is in a position to provide the jury with evidence which is qualitatively in a different category from previous witnesses” and as such her evidence is “directly relevant and admissible”.

Sheahan said the “probative force or weight” or Hodes’ evidence was “ultimately a matter for the jury to decide”.

After just under three hours of deliberation yesterday, the jury unanimously convicted the couple of the two charges they both faced. Judge Sheahan thanked the jury for their service in what she described as a “difficult” case.

The judge ruled that both of the accused will be remanded in custody. The State had objected to bail being granted on two grounds – the seriousness of the charge and the potential flight risk.

The couple have three young children, the youngest of whom is 11 months old and still being breastfed by the female accused, the defence noted. Tusla, the Child and Family Agency, has been involved in the case since 2016.

Sheahan said she is “fully aware” of the fact young children are involved and said it is “a matter for the prosecution to take the appropriate steps in this regard”. The couple are due to be sentenced next month.

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