Symbolic criminal law: Cases of female genital mutilation

Abstract

This article reflects upon the phenomenon of symbolic Criminal Law within the context of the criminalisation of Female Genital Mutilation (FGM), questioning whether criminal intervention performs a merely expressive function or whether it demonstrates genuine effectiveness in the protection of fundamental legal interests, bearing in mind that discussing crimes such as FGM invariably leads to complex situations, given that this issue has always been difficult to resolve due to its deeply rooted communal and cultural dimensions.

Accordingly, adopting a dogmatic and critical approach, it may be observed that the relationship between community and the constitutional State is unfortunately not always free from tension. In culturally plural societies, as is the case in many contemporary States - particularly in migration contexts -, the coexistence of different cultural, religious, or traditional communities may generate, and indeed has generated, conflicts between communal values and constitutional principles, especially in the sphere of fundamental rights. Thus, this study examines the tension between the universalism of human rights, taking into account the constitutional values infringed, and cultural pluralism, as well as the limits of criminal intervention in multicultural societies, such as those found in many African countries, particularly Angola, which is geographically extensive and, simultaneously, multicultural.

Consequently, the research is guided by the following question: To what extent does Criminal Law effectively fulfil its role concerning the criminalisation of FGM, considering that it constitutes an offence not only against human dignity - one of the constitutionally enshrined fundamental values - but also entails violations of other fundamental rights, such as sexual freedom, freedom of choice and self-determination (namely, the freedom to consent to or refuse mutilation), as well as justice and the individual’s physical integrity?

Furthermore, the manner in which Criminal Law is applied in cases of FGM leads us to believe that there is a symbolic dimension underlying the treatment of such cases. Given the seriousness of the matter, there appears to be a degree of leniency in its criminalisation, thereby raising the question of whether the legislator’s concern was genuinely to solve the problem or merely to create the appearance of legislative action. It is therefore concluded that the criminalisation of FGM oscillates between a necessary instrument for the protection of human dignity and a manifestation of symbolic penal law when not accompanied by integrated public policies.