A prevalence study by Dubourg et al. (2010) found that up to 6260 circumcised women and girls at risk of excision lived in Belgium (Dubourg et al. 2010). Those affected were largely women and girls from immigrant communities, who were keen to preserve their home countries’ traditions.
7.2.1 Criminal Liability
Under Belgian law FGM is treated as a form of child abuse, as well as an act of psychological or physical violence (in the same manner as beatings or rape). The fact that it is rooted in tradition has no bearing. It is, as such, also prohibited by the penal code. Since 2001 FGM has been the subject of a specific offence under Belgian law, Section 409 of the Criminal Code (which came into force on 27 March 2001) prescribes a term of 3–5 years in prison for anyone who ‘participated in, facilitated or encouraged any form of mutilation of the genitals of a female person or attempted to do, with or without consent of the latter (…)’.
In the absence of specific legislation, the general criminal law applies and FGM is likely to be pursued on the basis of general legal provisions, including measures covering all forms of bodily integrity. Thus, in Belgium FGM could be considered assault and battery, with the aggravating circumstance of the loss of an organ (Article 398–400 of the criminal code).
Section 409 of the Penal Code provides that FGM is punishable by a prison sen- tence of 3–5 years, for the author (excisor) or any person who has practised, facili- tated or encouraged such treatment. This provision is aimed not just at the person (the excisor or doctor) who practised FGM, but also at any person who facilitated or encouraged such treatment. It could be the husband of a woman who demanded that she be excised for marriage, or the parents or relatives (aunt, grandmother, for example) of a girl who allegedly organised the excision.
In addition, when a person who has authority or custody of a minor (or a person who is not able to provide for his or her own maintenance because of his or her physi- cal or mental state) has practised, encouraged or facilitated FGM, the term of impris- onment provided for in § 1 will be doubled or increased by 2 years if it is a sentence of imprisonment (§ 5). The fact that the mutilation was performed for profit, or has resulted in serious problems (incurable disease, permanent disability, for example) or death, is aggravating circumstances that result in longer prison sentences.
The law only applies to the mutilation of women, even consensual. A doctor who gives in to a patient’s insistence for reinfibulation after childbirth is likely to be fac- ing prosecution on the basis of Article 409 of the CP.
7.2.2 Extra-Territoriality
The risk of a child undergoing FGM is particularly high when families from high- prevalence countries organise a stay in the country during the school holidays.
Parents may have organised the trip in order to submit their daughters to the practice or have simply entrusted their children to relatives, who decide to excise the still intact girls.
Upon returning to the country, Belgian law applies. Indeed, the criminal proce- dure code provides that a person who has committed (or promoted, facilitated)
FGM against a minor, even in a foreign country, can be prosecuted in Belgium, on the condition of being on the territory (Article 10b and 12 of the Code of Criminal Procedure—CiCr-). Thus, the parents of a young girl excised abroad could be sen- tenced in Belgium, if it is proved that they participated in, facilitated or favoured excision. Put another way, a person who commits FGM abroad but enters Belgian territory may face prosecution charges, and it is no defence that such an act was committed beyond the Belgian national borders.
7.2.3 Limitation Period
Some crimes are statute-barred. Hence, the age at which a person is subject to the
‘tradition’ varies depending on the region, ethnicity, or sociopolitical situation. In most cases, FGM is inflicted on children aged 4–12 years. The limitation period for bringing a public prosecution is 5 or 10 years depending on whether the judge char- acterised the offence a crime or a crime of FGM (Article 21 of CiCr). This period runs from the day the victim reaches the age of 18 (21bis of CiCr).
7.2.4 Sentencing
Article 422 bis of the Penal Code states that anyone who fails to assist or provide aid to a person exposed to serious danger, whether he or she has seen for him/herself the situation of that person, or that situation is described by those seeking intervention, shall be punished with imprisonment of 8 days to 1 year and a fine of 50–500 francs, or one of these penalties (…). The offence requires that the abstention could occur to avoid serious danger to him/herself or others. When he/she did not personally see the peril, the abstinence may be punished when the circumstances in which he/she was invited to speak could make him/her believe in the lack of seriousness of the call or in the presence of hazards. The penalty provided for in paragraph 1 is extended to 2 years if the person exposed to serious danger is a minor. Article 21bis of the Criminal Procedure Code stipulates that the 10-year limitation period runs from the day the victim reaches the age of 18. Article 10 ter of the Criminal Procedure Code states that if the mutilation was practised on a minor in Belgium or in another coun- try, anyone who participated in the practice may be prosecuted in Belgium.
7.2.5 Liability of Health Professionals
The duty to report an offence is one way in which Belgium ensures that health pro- fessionals are held liable under the law. Such a duty presupposes the waiving of professional confidentiality. Under Article 458 bis of the Penal Code: ‘Any person
who by their status or profession, is the depositary of secrets and thus has knowl- edge of an offense under section 409 (…) that was committed against a minor, may, without prejudice to the obligations under Article 422b, should inform the public prosecutor, provided that it has examined the victim or collected the confidences of it, there is a grave and imminent danger to the physical or mental integrity of the interested party and will not be able itself or with the help of others, to protect that integrity.’