Khitan in Egypt: From Penal Code to Judicial Practice
In December 2016, the Suez Criminal Court sentenced a doctor who performed [what is commonly referred to as] female circumcision (khitan) [or female genital mutilation], that led to a girl’s death to one year of imprisonment and a fine of EGP5,000 [US$265]. The same court also gave the anesthetist and the victim’s mother a one-year suspended prison sentence and a fine of EGP5,000. The nurse was sentenced in absentia to five years of imprisonment.
First: The Case Facts
The case dates back to May 2016, when a doctor in a private hospital in Suez performed a khitan resulting in the death of a 17-year-old female student named Mayar Mohamed Mousa. The Public Prosecutor charged the aforementioned doctor, the anesthetist (released on bail), the victim’s mother (detained pending trial), and the nurse who participated in the procedure (on the run) with manslaughter and intentional injury leading to death via female circumcision, in contravention of the law (Articles 242 bis and 236 of the Egyptian Penal Code). Furthermore, on May 26, 2016, the governor of Suez issued a decision closing the hospital wherein the procedure was performed in contravention of the Penal Code, which criminalizes intentional injury and increases the penalty if said injury occurs via khitan.
After this incident, there were calls to increase the penalty for khitan and make it a felony. Parliament heeded these calls after stormy debates wherein one MP spoke crudely against the criminalization of the practice. In August 2016, parliament approved the bill increasing the penalty, and the Egyptian president issued the law in September.
In January 2015, the Mansoura Court of Appeal had sentenced a doctor to two years of imprisonment for the charges of manslaughter and intentional injury via khitan in the case of Soheir al-Batea, who died from a procedure performed in June 2013. The court sentenced the doctor to a further three months and closed the clinic for the charge of performing the khitan, and it gave the girl’s father a three-month suspended prison sentence. In March 2016, a doctor who performed khitan that caused a child to bleed to death was sentenced to six months of imprisonment.
Second: The Legislative Position on Female Circumcision
Since 1883, the Egyptian Penal Code has criminalized all forms of violation of physical integrity, including beating, injury, or giving harmful substances. When the current Penal Code was issued in 1937, it preserved the criminalization of these acts but added aggravating circumstances; i.e., the offense leading to illness or inability to perform personal work for more than twenty days, or to a permanent disability that is incurable or leads to death.
Even though khitan is an injury that experts say leads to permanent disability and that may lead to death, the judiciary considered the death of a child as a result of khitan to be misdemeanor manslaughter because there was no explicit text banning the procedure. The absence of such a text stemmed from a difference of opinion among Islamic jurists over the procedure’s permissibility.
In 1996, two children died during khitan procedures. The minister of health then issued Decision No. 261 of 1996, which banned khitan in all Ministry of Health units except in pathological cases. The decision also banned khitan procedures performed by individuals who are not doctors, deeming them a crime under the Medical Practice Law. The wording of this decision was flawed because it implicitly deemed khitan a legitimate medical action that (only) doctors may perform. However, the decision was challenged in the State Council’s Court of Administrative Justice. This court annulled the ban, but the Supreme Administrative Court overturned the ruling thereby upholding the minister of health’s decision to ban individuals who are not doctors from performing khitan.
In 2007, a 13-year-old girl named Badur died during a khitan operation in Minya, southern Egypt. The minister of health then issued a new decision –Decision No. 271 of 2007– banning medical sector workers from performing khitan in health establishments, private clinics, and all other places including homes. The decision stipulated that the disciplinary and penal sanctions in the Penal Code be applied to anyone who performs a khitan.
When the Child Act was amended by Law No. 126 of 2008, Article 242 bis was added to the Penal Code to increase the penalty for intentional injury when it occurs “via female khitan”. At the time, I faulted this text for not directly criminalizing female khitan by deeming it a crime in and of itself. Instead, the text deemed it an aggravating circumstance increasing the penalty for another crime, namely intentional injury. The text also allowed khitan in cases of necessity pursuant to Article 61 of the Penal Code, thereby opening the door for people to circumvent it by claiming that khitan was a necessity to protect the girl from grievous danger to her person. The new text also enabled judges to choose between three months to two years of imprisonment and a fine of EGP1,000 to 5,000 [US$55 to US$265]. Finally, the new text did not increase the penalty for medical sector workers who perform khitan. Hence, the new text put perpetrators in a position better than before, for a khitan causing death had technically been a felony of intentional injury causing death and the penalty for such a felony is rigorous imprisonment, ranging from three years (or six years if the victim is under eighteen years of age) to seven years. At the time, it was said that the Egyptian government only issued this text to exonerate itself in front of the international community.
In the run-up to the Muslim Brotherhood’s rule, khitan was reportedly exploited in electoral propaganda by the Brotherhood and by Salafists. In 2012, [some media outlets claimed] that the Freedom and Justice Party offered khitan service for a nominal fee of EGP25 [USD$1.25] in the Upper Egypt governorates. Signs encouraging citizens to circumcise their daughters were also posted in the streets.
During and after the rule of the Muslim Brotherhood, however, the rights organizations and the National Council for Human Rights did not stop calling for harsher punishments for khitan. After parliament sessions were held, women’s rights organizations vocally demanded that parliament further criminalize khitan, increase the penalty for it, and turn it from a misdemeanor with a reduced penalty into a felony. Although some MPs called for khitan not to be criminalized, the death of the Suez girl in May 2016 reignited the public’s interest in the issue. The government responded, submitting a bill to increase the punishments in August. Parliament approved the bill, and in September the Egyptian president issued Law No. 78 of 2016.
The new law contains two important articles:
The first article replaced Article 242 bis of the Penal Code with a new text punishing whoever performs khitan with five to seven years of imprisonment. If this act causes permanent disability or death, the punishment is rigorous imprisonment. All the above is subject to Article 61 of the Penal Code, which alleviates the perpetrator’s responsibility in cases of necessity. This text also defined punishable khitan as “any removal of part or all of the female genitalia without a medical reason”.
The second article added to the Penal Code a new text, namely Article 242 bis (a). The article punishes whoever accompanies a female to be subject to khitan, should the procedure be carried out, with one to three years of imprisonment. This text criminalizes the father, mother, or relative who takes the girl to whoever performs the procedure. Furthermore, the Child Act stipulates that the lower limit of the punishment for any crime is doubled if an adult commits it against a child, i.e., a person under eighteen years of age.
Third: The Judiciary’s Position on the Criminalization of Circumcision
Khitan is one of the most severe form of violence against women and girls. Approximately 90% of Egypt’s Muslim and Christian girls are circumcised. Although both Islamic and Christian religious leaders have openly opposed khitan, some people still try to attribute this violent practice against women to Islam to support and vindicate doctors and other persons who perform it, and to earn it false legitimacy and public acceptance. They do not realize that khitan is an African tradition that came to Egypt and has nothing to do with Islam, as evidenced by the fact that the Gulf states –including Saudi Arabia– do not practice it. Similarly, it would make no sense for Copts in Egypt to perform this violent practice against girls out of adherence to Islam.
Some doctors still see khitan as a legitimate conduct even though the Egyptian Medical Syndicate warns that it contravenes a doctor’s professional duties, the law, and professional ethics. The Syndicate hands down disciplinary penalties on doctors proven guilty. These penalties include issuing a warning, suspension from the profession, license cancellation, and cancellation of registration with the syndicate, as well as the administrative closure of the offending doctors’ clinics.
Nevertheless, khitan is still widely practiced, especially in poor areas, southern Egypt, and rural areas. The National Council for Human Rights deems it one of the most prominent means of violence against women and a derogation from their dignity and humanity. According to the council, there are no signs that the phenomenon has declined despite the efforts to curb it. When Egypt presents its periodic reports on women’s rights in the country in international human rights forums, it faces many remarks from Egyptian civil society, international organizations, and other states’ delegations.
Hence the importance of criminal law, that has a social role of protecting women from all forms of violence practiced against them, cannot be ignored. It is true that khitan’s connection to misconceptions such as purity, chastity, and adherence to good morals and religious values casts doubt over the merit of criminalization. This complicates the task of reform advocates and women’s rights defenders in Egypt, irrespective of the severity of the punishments stipulated for those who perform circumcision and for the victims’ families. The Penal Code is also obviously not a magic wand capable of curbing every criminal phenomenon, for the law alone cannot change wrong behaviors as customs and traditions cannot be altered with punishment.
However, general deterrence remains an objective of the punishment, the threat of which can dissuade some people from thinking about practicing this wrong custom. Similarly, the specific deterrence of persons who have performed this action once tends to be achieved by handing down the legally stipulated punishment, and ensuring its execution. It is also self-evident that if offenders feel that they will not be punished and are exonerated, or receive suspended sentences in the few cases that do go to court, then the judiciary’s role in combating the phenomenon of female circumcision will be ineffective.
It s true that penal judges rule based on their own opinion, but in doing so they should not be influenced by their subjective convictions or personal beliefs. A judge applies the law that criminalizes the behavior, even if they personally think that the behavior does not require punishment, or that the law was wrong to criminalize it. A judge rules according to the law and applies the law; they do not put the law applicable to the incident in question on trial. If the accused’s guilt is proven beyond any doubt, they must be convicted and sentenced with the stipulated punishment, even if the judge considers female circumcision an essential religious duty or social obligation, or considers said punishment disproportionate. This calls for holding training courses to educate criminal court judges about forms of violence that infringe women’s human rights, and about their duty to combat them by applying the texts penalizing them with the rigor needed to create deterrence; and, make the protection that these texts afford women more effective.
A judges’ adherence to the text criminalizing khitan does not deprive them of the discretionary power that Article 17 of the Egyptian Penal Code grants judges in criminal matters. This power includes the ability to suspend sentences within the limits stipulated by Article 55 of the same code. The Supreme Constitutional Court considers suspending sentences one of the most important means of individualizing punishment that must be available to judges in all criminal cases. However, for the judiciary to help combat this criminal phenomenon, penal judges must not overuse suspended sentences when guilt is definitively proven, and when the breach of the law banning the behavior led to the victim’s death. The few rulings that we presented in this article indicate that the matter only reaches the courts when the victim dies from khitan, or its complications. Hence, the rarity of the rulings stems not from the rarity of the crime of khitan, but from the increase in underground acts of khitan.