Perversion and Perpetration in Female Genital Mutilation Law: The Unmaking of Women as Bearers of Law

Abstract

Female genital cutting (FGC) or, more controversially, female genital mutilation, has motivated the implementation of legislation in many English-speaking countries, the product of emotive images and arguments that obscure the realities of the practices of FGC and the complexity of the role of the practitioner. In Australia, state and territory legislation was followed, in 2015, with a conviction in New South Wales highlighting the problem with laws that speak to fantasies of ‘mutilation’. This article analyses the positioning of Islamic women as victims of their culture, represented as performing their roles as vehicles for demonic possession, unable to authorize agency or law. Through a perverse framing of ‘mutilation’, and in the case through the interpretation of the term ‘mutilation’, practices of FGC as law performed by women are obscured, avoiding the challenge of a real multiculturalism that recognises lawful practices of migrant cultures in democratic countries.

Keywords

Critique female genital cutting female genital mutilation sticky associations women as bearers of law

Introduction

In 2015, the crime of ‘female gential mutilation’ (FGM) was prosecuted for the first time in Australia. Three members of the Dawoodi Bohra Muslim community were arrested and convicted in New South Wales (NSW), see R v. A2; R v. KM; R v. Vaziri (No. 2) [2015] NSWSC 1221 (Magennis and Vaziri).¹ As the first case to mobilise the provisions for criminalising FGM in NSW, the Crimes Act 1900 (NSW) section 45, it provides the first opportunity to assess the application of the law. The case attracted a good deal of media attention, which included reports of the practice of ‘mutilating the clitoris of each girl’, and described how a midwife ‘cut both girls’ genitals’ with a ‘silver tool-ish thing’ that ‘looked a bit like a scissor’ (Partridge, 2016). There were also references to, and images of, a man described as an ‘Imam’² who, like the parents, according to media reports, showed no remorse (Australian Associated Press, 2016). He was charged with being an accessory after the fact for instructing the women in the case, and the Dawoodi Bohra Muslim community in western Sydney, to be obstructive with the police.

The convictions in Magennis and Vaziri came almost two decades after laws criminalising female genital cutting (FGC) were enacted in every state in Australia. Western Australia initially resisted introducing such laws due to concerns of racial discrimination, and the targeting of particular communities and cultures unfairly, but by 2003, it too had enacted criminal provisions.³ In 1997, the United Nations General Assembly called upon all States to pass national legislation prohibiting ‘customary practices harmful to women and girls, particularly female genital mutilation;’ the European Commission would soon do the same (UN General Assembly, 1997: 3(e)) and similar law reform was being implemented worldwide.⁴

In 1994 in Australia, the Family Law Council (FLC) consulted on proposed legislation on practices known as FGC, more controversially termed FGM in their report (FLC, 1994a, 1994b; see also Rogers, 2013).⁵ The anti-FGM sentiment within ‘the Australian community as a whole’ (FLC, 1994b: 4), and the urgency attached to the perceived prevalence of FGM in Australia, meant the passage of the provisions implementing the FLC’s recommendations to criminalise these practices was remarkably hasty. The speed and enthusiasm for ‘eradicating FGM’ in Australia, in the post-Kuwait war climate of heightened anti-Muslim sentiment, overrode concerns of what the FLC called ‘the affected communities’ who, at that time, expressed worries about the potential ill-effects of the laws. As we discuss in the following, these communities were also concerned about the lack of consultation (see FLC, 1994b: 2–3; Rogers, 2013). We argue here that an atmosphere of urgency and fear occasioned this exclusion of the voices and views of the affected communities from the consultation⁶ and further obscured the reality that it is the women in these communities who are the ‘bearers of law’; it is the women who practice, influence and often make the laws of FGC.

A close examination of the process of criminalisation of FGC as FGM, together with an analysis of the Magennis and Vaziri case, highlights dynamics that foreclose the possibility of recognising women as the bearers of law in the communities practicing FGC. This foreclosure limits the possibilities for recognition before the law, and more specifically, it could only offer a limited recognition of the particularities or differences of those communities; differences that are crucial to a multiculturalism worthy of the name (see Seth, 2001).⁷ As we argue, the law, which seeks to eradicate the practices it knows as FGM, can do so only by concurrently symbolically obliterating women as law-bearers. To make good on this set of claims, we argue that public support for the law on this issue is affectively produced and consumed through sets of associations between objects, images and emotion; associations that Ahmed describes as ‘sticky’ (2014: 11, 98).

In Ahmed’s schema, objects become sticky because they are saturated with affect. Affect is the glue that sticks, sustains or preserves the connection between ideas, words, emotions and objects. Objects such as genitalia and clitoris become stuck to words like mutilation or cutting, and images of scissors and pain evoke feelings of repugnance and horror. Demands for the law as remedy rely on this stickiness. It is part of what Goodrich describes as legal speech’s ‘communion’, which enables the swallowing of law (1994: 110), in this case FGM law. Ahmed tackles the dynamics of the communion between speaker and listener and argues that the association between one object and another involves ‘perversion, and…conversion points’ (Ahmed, 2010: 44). Conversion points are where the transformation of affect is sent out by an object – in Ahmed’s terms this can be a word, image or gesture that promotes feelings, such as a national flag or even a belief in being multicultural – into another affect, such that it can turn ‘good feelings’ (of being unified as a nation, in the case of the flag, or being a good, tolerant person who believes in mutliculturalism) into ‘bad feelings’ towards those that disrupt that unity (Ahmed, 2010: 158). Conversion is helpful for understanding some reactions to FGC as simply too much difference (Rogers, 2007; Seth, 2001). Perversion, however, is the more crucial emphasis for us here. It is the process whereby affect is orientated toward one object in the effort to cover over an idea that is too difficult or frightening to bear (Ahmed, 2010: 194–195). We focus here on the work of perversion as it pertains to the positioning of the perpetrator of FGM and the conversion points at work when women, who are represented as requiring the protection of the law (‘mutilated women’, in the FLC’s terms (1994b)), are convicted as perpetrators of said mutilation.

The article unfolds in four sections. The first outlines how the emergence of a visible minority of women from the Horn of Africa in Australia in the 1990s disturbed the normative order of White Australia in the context of war. At this time, a public discursive link was briskly established between the ignorance of these ‘third world looking migrants’ (Hage, 1998: 116) and violence. This ignorance/violence nexus received its most affectively riven form in discussions of FGM. The second section addresses the insertion of FGC into the global category of ‘violence against women’ revealing gender as a conversion point here. Spivak’s renowned illumination of the principles of gender and development programs always underpinned by a logic of ‘white men saving brown women from brown men’ (1999: 284), is at first converted, in discussions of FGM, to ‘saving brown women from brown women;’ but the law’s requirement for perpetrators sees yet another conversion, ‘white law saving brown girls from brown women (who are acting on behalf of Islam and brown Islamic men)’. Section three elaborates on the idea of sticky associations and expands the concept of perversion as a modus operandi that conceals what is lost and what is intolerable – that is, an aversion to encountering FGC as a multifarious array of practices where women wield the law, their own laws, rather than behaving as instruments of men or ‘Islam’. The final section revisits the impossibility of women as bearers of law through the case of Magennis and Vaziri, demonstrating how this impossibility rests on a high level of certainty and a consequent lack of curiosity about communities and practices corralled under the category: FGM (Sullivan, 2009). The sticky associations in the case, we argue, obscure women’s place as law-bearers in relation to practices of FGC, and as law-bearers generally, leaving serious questions about the law’s capacity to recognise cultural difference and produce justice.

Scenes of Motivation

In 1994, when the FLC embarked upon its process of consultation, it began with a Discussion Paper (1993a), but 3 months later, in its Report, it acknowledged that there was ‘no empirical evidence on the practice of female genital mutilation in Australia’ and that there were no first-hand reports of the practices (1994b: 14–17). There was some anecdotal evidence, largely second hand, and a lot of speculation. The FLC’s initiative had been motivated a year earlier by widespread media attention following a child abuse investigation in Melbourne in 1993, which reported that two young girls had been infibulated while outside Australia (see Ierodiaconou, 1995). No further evidence was presented about the prevalence of the practice of infibulation in Australia, and it remained unremarked in the media that infibulation is just one form of the practices identified by the World Health Organization (WHO) as constituting FGM. Circumcision, infibulation, clitoridectomy, excision, nicking, scraping, piercing and pricking, despite their differences in significance and scope, are all grouped under the term FGM in the FLCs report, as well as in the Magennis and Vaziri judgment discussed in the following, with all discussion already presuming that mutilation was the result of each and all of these practices.⁸ At the time, however, the First Gulf War in Kuwait loomed large as a source of political and social unease, and the possibilities of Muslim invasion became a topic of speculation; speculation that would be fuelled by the racial narratives of the populist One Nation party, and subsequently adopted by mainstream political parties.⁹ September 11 had not yet occurred, and it is difficult now to recall a landscape in which the fears of ‘Islam’ in western countries were only just emerging. At this time, however, such sentiment resembled what Hage (1998) would later call an aggression for ‘spatial management’, a kind of desire for control over the national space. Muslim men and women, with their obvious gestures to another law (Rogers, 2013), threatened unmanageability in this space.

In 1993, migrants from the Horn of Africa, who had largely arrived through ‘women at risk’ programs,¹⁰ from Eritrea, Somalia and Ethiopia, were becoming increasingly visible in the national space. Such presence in the urban centres of Melbourne and Sydney would prompt the almost anthem-like phrase ‘it just doesn’t look like Australia anymore;’ an on-the-spot articulation of national identity in opposition to ‘brown women’ wearing the veil (Hage, 1991; Poynting and Mason, 2006; Poynting and Noble, 2004; Seuffert, 2006). In Ahmed’s terms, it is the proximity of bodies in these urban spaces that makes them spaces of affective conversion, or conversion points, from ‘home’ to ‘not Australia’, and promotes the feeling of being evicted from one’s home. This visibility led to attempts by policymakers and White Australians to manage the presence of diverse populations both through integration policies and everyday violence, such as the tearing off of the veil and other forms of harassment of Muslim women (Poynting, 2002). In this context, the much-publicised Melbourne child abuse/infibulation case captured the broader Australian imagination about the fate of girls under Islam and assertive calls for law to manage this new ‘migrant’ presence ensued. Senior Editor for The Age newspaper, Kissane responded at the time, ‘genital mutilation should be criminalised if migrants are to get a clear message about how serious a practice it is’ (1993: 16). Public discourse vacillated between perceptions of immigrants being characterised as ignorant, or unaware of the seriousness of their own practices – needing a clear message – and their inherent cultural violence, both of which required legal intervention and penalty.

The FLC consultation process and the resulting law reform were animated by this public discourse, but also produced some debate about whether laws criminalising FGM were necessary, given that existing criminal offences, such as assault, were available (Ierodiaconou, 1995). For some, the potential harms of legislation directed at particular minority groups were a concern. Some affected communities and their advocates argued that criminal provisions should not be introduced before educational campaigns among those communities had sufficient opportunity to take effect (African Women’s Working Group (AWWG), 1996; Ieroidiaconou, 1995: 585). There was also debate about whose interests, views, judgments and voices were privileged and accorded value in the consultation processes. As Ierodiaconou points out, the women from the affected communities were ‘largely absent from this debate’ (1995: 578). The fact that the FLC Discussion Paper was produced only in English when the overwhelming majority of members of the affected communities spoke a host of languages other than English and were mostly newly arrived to Australia, compounded by the short consultation period, precluded meaningful participation for many (FLC, 1994b). According to the Ecumenical Migration Centre (EMC), who worked closely with women from the Horn of Africa and supported the Eritrean Women’s Group, the debate on FGM was these womens’ first experience of the law in Australia, and the FLC acknowledged that ‘the first time many of these women have been called upon to talk on the issue is in relation to its criminalisation in Australia’ (FLC, 1994b: 59). The EMC’s submission to the FLC noted that while FGC was ‘very clearly women’s business’, their invisibility characterised the debate on the legislation (FLC, 1994b: 59; Marshall, 1994). The submission of the Immigrant Women’s Speakout Association of NSW stated that ‘legislation would be counterproductive’ and called instead for a full inquiry into the incidence of the practices (FLC, 1994b: 2–3). Instead, the FLC report resisted such a call stating it would be too resource-intensive and it would alienate community members. It recommended criminalising the practices (FLC, 1994b: 18) and opted for an education model rather than a model of ‘dialogue’ which had been recommended by groups from the affected communities. One member of the FLC dissented on the basis that it ignored the efforts of the women in the affected communities who were taking action to eradicate the practices, stating that the approach recommended was a ‘form of cultural imperialism which does not allow the affected communities to take responsibility’ (FLC, 1994b: vii). The significance of the community work of these women, and their views, was ignored (see Adam et al., 1994). Instead, the ‘broader Australian community’s view’ of the ‘unacceptability’ of the practices prevailed (FLC, 1994b: 4), resulting in criminalisation.

The link between ignorance and violence which Kissane, in her call for migrants to receive a clear message, highlights above is a common feature of the rhetoric which animates colonial interventions (Mohanty, 1984; Spivak, 1985). Legal intervention on FGC recruits these same logics and adds the element of eliding consultation with those targeted by the laws, opting for an unproblematised acceptance of perceptions of the practices as being so violent, or ‘serious’, as to be worthy of a rapid response. These perceptions are fuelled largely by singular anecdotes and emotionally charged narratives that convey the practices as ‘barbarism’ par excellence. Lenore Manderson, in her analysis of the black and white coffee-table book, The Day Kadi Lost a Part of Her Life (Manresa and Ramos Rioja, 1998), as an anti-FGM text that calls for activism against the practices, draws out this barabarism narrative:

Textually and photographically, cute little girls are juxtaposed against ‘ignorant’ ‘barbaric’ adult women: the buankisa, the woman who circumcises Kadi, does not give Kadi’s cries a thought: ‘Like any other of the many vultures flying around, the old woman even took some of the sweets which had been brought for Kadi’. (Manresa and Ramos Rioja cited in Manderson, 2004: 291)

Manderson highlights the work of anti-FGM activists that represent the midwives who perform the practices as themselves the barbaric, uncaring ‘vultures’. Vultures are scavenging birds of prey that hover over those who are weak and dying, and thrive on their death. As fearsome, sinister creatures, they are associated in popular culture with the ‘old world’, with horror films and scenes of carnage.¹¹ This representation is not unusual; contrary to narratives about the care and tenderness exercised by parents of girls who are circumcised and reports of the celebratory nature of the ceremony practiced in many of the communities (Ahmadu, 2000, 2016; Schultz and Lien, 2014), narratives such as that in Kadi, and much of the fictional and non-fictional work by Walker, show midwives and mothers of the circumcised girls as devoid of care and inattentive to the feelings of the children. The midwives are often figures of repulsion or distaste (Manderson, 2004). M’Lissa in Walker’s influential tale of a circumcision, Possessing the Secret of Joy (1992) is much despised, and even sadistic (Rogers, 2009).¹² The buankisa in Kadi speak harshly to the children, take what is not theirs – sweets from the children – and it is suggested that there is a kind of disdain for the girls’ pain. This violence, in excess of their functional role, presents the midwives as malevolent actors who display an intent to injure, and by extension, as deserving of punishment by law. Rendering FGC a barbaric practice, engaged in by such harsh women, erases the agency and care of the midwives and mothers in the communities who practice (see Schultz and Lien, 2014). As we argue in the following, it also erases them as the wielders of laws pertaining to these practices.

Saving Women and Children

The erasure of midwives as caring women and knowledgeable agents of law produces practices of FGC as violence against women perpetrated by men through the actions of midwives. We highlight here, firstly, how the slip between violence done to women and the agency of women is erased in quasi-legal rhetoric around the practices. We explain how this slip functions to demonstrate that ‘Islam’ infiltrates the body of the midwives, rendering them perpetrators rather than bearers of law. The first step in this slip is positioning FGC as a violent practice associated with men’s violence against women. The links between FGC and other practices which involve violent male perpetrators are clearly made in the United Nations General Assembly’s document, the Declaration on the Elimination of Violence Against Women, Article 2:

Violence against women shall be understood to encompass, but not be limited to, the following:

(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation. (UN General Assembly 48/104, 1993, emphasis added)

In this quote, FGM slips into the category of violence against women perpetrated by men, while practices that are considered ‘traditional’ are almost by definition always ‘harmful to women’. The category of violence against women reflects decades of western feminist campaigns that advocate legal redress for male violence against women (Hunter, 2008). While there are no references in this statement to the gender of the perpetrators, the inclusion of FGM in the Article 2 definition of ‘violence against women’ creates a strong inference that the perpetrators of these offences are male.

The association in the quote between ‘dowry related violence’, FGM and ‘other traditional practices harmful to women’ taps into familiar colonial tropes positioning non-western societies as backwards and pre-modern. ‘Traditional’ practices are positioned here as unlawful and as taking place in countries ‘other’ to the west, evoking tradition, culture, kinship or religion as their source, in opposition to the rationality of the western rule of law. ‘Tradition’ also implies practices from another time or place, which predate the institution of ‘modern’ legal systems that are taken to ‘progress’ through time. Traditions are, by implication, backward-looking practices, which may have passed their use-by date. Positioned against human rights law, the ‘tradition’ of FGM is connected with violences such as honour killings, acid throwing and dowry deaths.¹³

Associating FGM with violence against women said to inhere in traditional societies also positions men as perpetrators, creating, as Spivak astutely notes, the Gender and Development imperative for ‘white men to save brown women from brown men’ (Spivak, 1999: 254). But a novel rhetorical manoeuvre is required to reproduce this familiar trope in relation to FGM. The gender of the perpetrator has to ‘slip’ from female to male. Practices of FGC – always referenced in these narratives as FGM – challenge the usual concerns with male violence against women. In fact, the ‘perpetrators’ of FGC are always women (in the vast body of anthropological, medical and legal studies consulted, the cutting of a girl or woman has never been noted as performed by a man). Moreover, these offenders have always experienced a form of the practice themselves (Hernlund and Shell Duncan, 2007). Accordingly, they are both victims and perpetrators. In the work against FGM, using Spivak’s characterisation, it would therefore be more accurate to suggest that White women are saving brown ‘girls’ from brown women. This confusion of the perpetrator/victim narrative is crucial, we suggest, to enabling the criminalisation of FGM without due consultation or research that might reveal the knowledge of the practices located in the women themselves.

The erasure of the agency of brown women in the anti-FGM narrative assists in positioning brown men, more familiarly, as perpetrators. This dynamic is complemented and reinforced by another rhetorical move. To ameliorate confusion about the problem of saving circumcised women from circumcised women, that results from the fact that women perform the practices, the anti-FGM lens is often slightly fractured to produce it as one about saving ‘little girls’, despite the fact that the laws in many western countries also provide that adult women cannot consent to FGC. For example, the Female Genital Mutilation Act 2013 (UK) uses the term ‘girl’ throughout, and then defines ‘girl’ to include women (section 6), as though there is a need to reassure the polity, through repetition, that it is little girls being saved. This move has a twofold effect; it produces a sympathetic figure of salvation, and it conceals the presence of adult women as targets of protection. This is the perverse work of FGM/FGCs association, in Ahmed’s (2014) ‘sticky association’ terms, with ‘the child’. This figure allows for a ready pivot away from any discomfort in criminalising the women who were meant to be saved, and simultaneously obscures the possibility of those women being more than child-like and having an authoritative presence in their own law’s production and practice.

Our concern here is specifically with how the erasure of the women’s agency, through assumptions about the practices as violence against women perpetrated by men, not only obscures the reality of women as law-bearers but also contributes to the overarching representation of Islam-as-patriarchy. This association is a discursive manoeuvre that forecloses the possibility of women as agents within Islam as well as without. This manoeuvre becomes evident in much anti-FGM rhetoric where FGM is a product of ‘patriarchy’, ‘patriarchal social relations’ (FLC, 1994b), ‘patriarchal culture’ or a ‘fundamental patriarchy’ (Ahmadu, 2016). Patriarchy is the quality most associated with Islam in these discussions, which, we can see through the lens of Ahmed’s sticky associations, tends to represent Islam as if it were patriarchy – the one always already associated with ideas of the other – and thus positioning patriarchal Islam as the perpetrator. ‘Patriarchy’, wielded in this way, becomes a force that motivates, guides, limits or even dictates to women. In short, it possesses them. In anti-FGM rhetoric, Islam is not simply a perpetrator that does violence toward women and young girls, it is as though Islam ‘gets in’ to the minds and bodies of women and turns them into images or instruments of violent men. These representations were present in the case of Magennis and Vaziri, as we discuss in the following, and in the justification of the introduction of anti-FGM law.

In one reading of the anti-FGM bill proposed in Australia in 2012, Liberal Party Senator Kroger shows this form of ‘getting in’ through a contorted metaphor which cannot quite locate the ‘religious and cultural’ elements that, in her representation, dictate a woman’s choice. As she says:

We need to unveil FGM from the religious and cultural cloak in which it hides. A woman who comes from a culture which wears a hijab can, in Australia, decide to take that veil off if she so chooses. But, if we allow young Australian girls to be physically mutilated, we are allowing scars which will never heal and a veil which will never be lifted. (Kroger, 2012: 1649)

Islam here is both cloak and body beneath, leaving little space for the agency of the woman. The veil, as the ‘religious and cultural cloak’ that might ‘hide’ FGM, is a metaphor that obscures the point that culture gets in to us all, reproducing the western fantasy that only some bodies are cultured, while other, western bodies, are cultureless, allowing individuals to choose culture (Fraser, 2012). The language – ‘a veil which will never be lifted’ and ‘scars that will never heal’ – relies on this fantasy that non-western bodies are violently cultured. And here they are violently cultured by Islam. The confusion over whether FGM is a religious and cultural cloak that is outside the body and can be lifted, the reference to the veil that cannot be lifted, and the reference to FGM as ‘scars that will never heal’ goes further and gesture to a body that is infiltrated or possessed by Islam.

Greens Senator Sarah Hanson-Young evokes similar rhetoric to Kroger when discussing anti-FGM legislation. In extolling its importance, she claims the practices are like ‘death by stoning because of trumped-up charges of adultery’,¹⁴ as if all practices of Islamic law can be corralled under the tropes that western audiences have come to associate with Sharia. It is through associations such as these that FGM becomes readily attached to an affective register that opposes Islam and its cloaks. The veil, adultery and stoning are already choreographed to overlap with honour killings and dowry violence onto ‘traditions’ and ‘rituals’ under the label ‘Islam’ and its fantastical associations (Ghumkhor, 2019). They are objects, in Ahmed’s terms, and ‘[h]ow the object impresses (upon) us may depend on histories that remain alive insofar as they have already left their impressions’ (2004: 8). The collection of words, already mapped by many images of the supposed violences of Islam, frame our associations to FGM through the impressions already made by other images and other icons associated with violence against women.

Sticky Associations

The symbols and icons that enable the broad social consumption of FGC as FGM, as a patriarchal practice in which men in societies represented as backward, violent, and in particular in Islamic societies, perpetrate violence on women, we suggest, can be grasped through Ahmed’s (2014) concept of ‘sticky associations’. It is this method of attachment by affective inference that Ahmed describes as engaging the work of ‘sticky associations’. As she says ‘[o]bjects become sticky, saturated with affects as sites of personal and social tension’ (2014: 11). In this conception, objects are clearly not ‘objective’, though they may be believed to be ‘fact’ and supposedly immune from the political sways that inform all manner of knowledge production. Indeed, this is the work of sticky association, as opposed to that which does not provoke the impetus to obscure what we do not want to see. Sticky associations work to cover over the questionable path between one association and the other through a kind of affective urgency, which is not so much felt as deliberately unfelt. In Ahmed’s terms, this is because objects are always saturated with emotions. For her ‘[e]motions are both about objects, which they hence shape, and are also shaped by contact with objects. Neither of these ways of approaching an object presumes that the object has a material existence’ (2014: 7). That is, there are no ‘veils’, or even sex organs per se. Objects, as Ahmed illuminates, are inevitably shaped by the emotions that colour their significance. And when the objects – genitalia, sex, veil, honour killings and FGM – are so heavily charged with contemporary politics (Islamaphobia) and an ongoing cultural obsession (sex), the intensity or even urgency of passion results in a resistance to understanding the industry of that production. That is, the association results in resistance to curiosity – the gap in presumptive knowing that ordinary feeling promotes; a gap that might otherwise accompany an encounter with difference in most thinking people.

In the passages discussed earlier, we see the casual recruitment of imagery – veils, stoning and vultures – that are commonly seen as occupying a space outside the rule of law and are used to evoke outrage against Sharia (misinterpreted as such). These objects are used to mobilise antagonism toward FGC, practices that require an entirely different register of curiosity and consultation to understand their significance. It is this movement, from one meaning to another, casually, collecting heightened affective responses, that Ahmed describes as a method to transform objects by ‘a sleight of hand’ (Ahmed, 2008: 5):

Like the game Chinese whispers, what passes between proximate bodies, might be affective precisely because it deviates and even perverts what was ‘sent out’. (Ahmed, 2010: 44)

The passing of objects between ‘proximate bodies’ involves an industry that both presents and obscures. Or we might say that the ‘associations’ made are not direct, but are offered for consumption as an antidote to other disturbances evoked by the presence of another’s law, termed ‘culture’ or ‘religion’ above. The association between one object and another involves, for Ahmed, a ‘perversion’. For her, these moments of association are ‘conversion points’ (Ahmed, 2008: 5). It is as if the image or idea presented creates a pivot on which the audience can at once turn toward and away from the object. This is what it means, in psychoanalysis (at least a Lacanian version), to operate in the mode of a perversion. It is to grasp the object as a means of at once satiating the pain of, and simultaneously concealing, what is lost. What is lost, or might feel like a loss, in the above narratives, is the good feeling promoted by saving children as opposed to imprisoning woman, or subjugating them to the laws and cultures of the west. As in Senator Kroger’s contorted metaphors noted earlier, the associations between veil, cloak and FGM obscure the reality that law gets in to us all and that choice – to veil or unveil – is far from what is proffered in any relation to law.

We need not dwell on psychoanalytic understandings here, but to say that in Ahmed’s (2008) terms earlier, the associations do more work than simply gesturing to a resonance between one object and another and they also work to conceal what is lost. In this case, we might say that the intolerable quality of FGM, at least as it is imagined, is twofold. First, it is the challenge to the good feeling associated with living in a multicultural country in which law is represented and often accepted as a tool of justice and salvation. Second, the presence of women bearing, wielding or performing the law, as women, not as vultures or victims of ‘patriarchal social relations’ is obscured. What is lost, is the unified form of multiculturalism that Ahmed describes as a ‘good feeling’ (2010) as well as the belief that there is another law that might exist as valid and indeed as authorised by women, and be legitimate beyond western laws. In Ahmed’s rendition, the good feeling among White people who see difference as disturbing their unity is lost to the reality that it is not a universal unity, but a unity associated with a particular form of cultural imperialism. In FGM discussions, this good feeling is the unified affiliation with a law, and a nation, that at once asserts a form of multiculturalism, but at the same time denies the presence of lawful practices of these cultures. Or we can say that what is lost in the perverse forms of associations that produce FGM as always violent and women who practice as ‘vultures’ is the good feeling that comes with the fantasy that the law is saving ‘brown women from brown men’, when in fact it is delegitimising women’s agency as bearers of law. It is this delegitimation, as we argue in the following, that is done through further delegitimising FGC and producing it as ‘traditional harmful practices’ and hence not-real-law.

Who Bears the Law?

The legal status of practices of FGC, delegitimised as not-real-law in Australian and most western legislations, is highlighted when its articulation as ‘culture’ or ‘tradition’ is contrasted with the category of ‘medical necessity’ in the legislation. No offence of FGM is committed where a registered medical practitioner performs such surgery if it is necessary for the physical or mental health of the ‘girl’ (Kennedy, 2009). It is this category in anti-FGM legislation that enables forms of the practices – such as labiaplasty or other cosmetic genital surgeries (CGSs), to remain unpoliced and for the practitioners of CGSs to remain immune to criminal charge (see Gans, 2016; Kennedy, 2009). Despite the obvious characterisation of CGSs as a matter of culture or ‘custom’, FGM is distinguished from CGSs with an exclusion from ‘medical necessity’ of any operation performed – as described in most franchises of anti-FGM laws in western countries – as a ‘matter of custom or ritual’. Therefore, in order for the provisions to function to prohibit practices of FGC, western cultural norms have to be distinguished from ‘custom’ and ‘ritual’.¹⁵ It is in this sense that the laws of some in a multicultural society are denoted as ‘custom’, ‘ritual’ and/or ‘tradition’, placed at the boundaries or outside of real western law, and criminalised. Real law is understood as that which protects women and girls from ‘harmful traditional practices’.

Women appear in such narratives of law, but not as lawmakers. The narratives’ renditions of ‘patriarchal social relations’, which turn law into culture, render women as vultures or victims of Islam. This obscuring move repeats the familiar gendered dynamic of producing women as bearers and reproducers of culture and of the nation, while simultaneously ignoring or denying their agency, particularly in public life (McClintock, 1995; Mohanran, 1999; Seuffert, 2006). In the colonising version, or trope, of this dynamic, women from cultures colonised by western law are conformed to the role of bearers of culture, and particularly of the colonial marks on the colonised culture: backwards looking, static, pre-modern. Men from colonised cultures can, to varying degrees at particular historic moments, assimilate by adopting western clothes, posture, gait, education and so on and become almost the same, but not quite, as White men (Bhaba, 1994: 153). The women, portrayed as ‘marked’ by ‘traditional’ clothes, such as veils, symbolise or bear, the ‘static, backwards, traditional’ culture, which is critiqued as patriarchal in contrast to progressive western cultures (Seuffert, 2006).

In Pursuit of Violence

It is in the binary rendition of women as culture-bearers as opposed to bearers of law that we see a double violence inflicted upon communities who practice different forms of FGC. In its rendition by the west, in place of the agency of the women who perform the law, is instituted in the culture – Islam – that performs a crime. This movement elevates western law to the status of protector against all things Islamic at the same time as it infantalises both the communities who practice and the women who perform the practice as victims of their own culture. This is the perverse pivot of the work of sticky associations that, at once, attaches the image to the emotion, by virtue of lateral associations, and at the same time obscures what might be understood or encountered in the space where western knowledge cannot (in a psychoanalytic mode) cover the lack of knowledge about the practices. Inquiry, curiosity and specifically any entertainment of a real or strong multiculturalism, as a legal pluralism that recognises difference as a difference of laws, are colonised by the production of FGC only as FGM – and the space to speak otherwise, let alone by ‘brown women’– is erased, or certainly ‘subjugated’ in Foucault’s (2002[1969]) idiom, to the categories through which only particular knowledge can be produced on the topic. In this last section, we show how the work of sticky associations, and the perverse efforts to both produce western law as protector while obscuring the other’s law, simultaneously, functioned in Magennis and Vaziri (see R v. A2; R v. KM; R v. Vaziri (No. 2) [2015] NSWSC 1221 (pretrial motion)).¹

In Australia in 2015, after a resource intensive investigation, five members of the Dawoodi Bohra Muslim community were arrested, including the local community leader, or Amil, the midwife – who was said to have performed the practice – and the parents. Ultimately, it was only the midwife, mother and community leader who were charged. The investigation was then followed by a case and a judgment which highlights the enthusiastic efforts to produce Islam as perpetrator, and women as at once impotent and criminal. In Magennis and Vaziri, it was the community leader, the Amil, Vaziri (incorrectly described as an ‘Imam’ in media reports (Jabour, 2015a, 2015b)), who was charged as an accessory after the fact, who became the primary figure of perpetrator and the only one who was actually sentenced to imprisonment. As the pin-up figure in the case, he was depicted as a scowling, hostile-looking ‘Imam’ on the streets of inner Sydney. Images do a lot of work in the production of violence in this case, and the scene is also interpreted through the enthusiastic association of FGM with practices that themselves inspire sometimes horror, sometimes rage. As Shweder notes:

In the popular imagination [FGM] is the kind of thing barbarians do in Africa where (as the nightmare scenario about the ‘dark continent’ envisions) they maim, murder, and torture their own daughters and deprive them of the capacity for sexual pleasure. (Shweder, 2013: 352)

FGM, as we have discussed, is widely associated, in Ahmed’s terms, with violent crimes against women. To use the term ‘mutilation’ in discussions of the practice is akin to attempting to open a conversation on abortion by using the term ‘murder’, as Shweder has noted (2013: 361). But it is this term, that becomes the object, in Ahmed’s idiom, that both provides the locus of attachment of emotions and obscures or allows the pivot away from what cannot be thought in western discussions of FGC – that the practices are performed by women as the bearers of law. In the case of Magennis and Vaziri, the perverse function of the object ‘mutilation’ is highlighted enthusiastically by Johnson J in his judgment and direction to the jury. In the following, we briefly explicate the efforts of Johnson J to locate a mutilation and perpetration. In so doing, we consider how the work of the term ‘mutilation’, and the industry of Johnson J to produce it at the fore of any consideration of the case, obscures the presence of women as bearers of law and presents Islam (in the form of the Amil, Vaziri) as perpetrator.

In the trial, the mother and midwife were convicted of ‘female genital mutilation’ of two young girls under the Crimes Act 1990 (NSW) section 45(1)(a), which criminalises the offence of FGM where a person: ‘excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person’. The issue in the case was the interpretation of ‘otherwise mutilates’, and specifically whether it would include ‘ritualised circumcision’ or other practices, where the clitoris may be cleaned and in some cases scraped or nicked (Magennis and Vaziri [182, 247]), but not seriously injured. The prosecution had argued that the girls had experienced a ‘nick’ by the midwife even though the medical expert who examined the girls at the time could find no evidence of any injury. As the defence noted in its opening address:

the doctor who conducted the physical examination of each of the girls…significantly, found no actual evidence of any injury, but whose ultimate opinion is that what she saw did not exclude the possibility that there had been an injury which effectively had healed without any evidence of it having occurred (Trial Transcript: 66)

The defence argued confidently on the issue of the lack of evidence of injury. Even the prosecution expert had to concede that if there was any injury caused, it had healed without leaving any evidence. The Court acknowledged that according to the dictionary meanings of the term mutilate, which included ‘maim’, ‘disfigure’, ‘irreparably damage’ and ‘to remove a limb or other important part’, ‘the better view may be that more is required than the causing of injury’ (Magennis and Vaziri [152–156]). It also acknowledged that the legislative history identified three categories of ‘female genital mutilation’ intended to be covered by the provision, specifically not including ‘ritualised circumcision’ (Magennis and Vaziri [182]). Nevertheless, Johnson J concluded in his directions to the jury, that a nick or a cut was covered by the term ‘female genital mutilation’, accepting the Crown’s argument that ‘otherwise mutilates’ includes ‘any injury to any extent for non-medical reasons’ (Magennis and Vaziri [272, 110]). In order to come to this assessment, he relied on government material produced to ‘educate’ the practicing communities (Magennis and Vaziri [192–205]), collapsing a number of ideas and arguments on the practices of FGC more generally into the term – including those by the WHO – and citing the hasty and flawed consultation done by the FLC in 1994 (Rogers, 2016) which did not include the communities engaged with the practices.¹⁶ In effect, Johnson J worked laboriously to explain how the practice of a ‘nick’ might not be a ‘mutilation’, or specifically might not come under the definition of ‘otherwise mutilates’ – as framed in the legislation – but nevertheless was indeed ‘female genital mutilation’ [157–161, 240–246]. It is this industriousness, on the part of Johnson J, which, we suggest, constitutes some of the perverse work of sticky associations in this case, and more generally in relation to FGM.

The terminology on FGM, particularly ‘mutilation’ in this case, forms a pivot away from what is being argued by the defence, pivoting towards the associations that we have identified. This was firstly the obvious point – that no ‘injury’ occurred at all – backed up extensively by the testimony of the Crown’s forensic medical expert, who could find no evidence of the practices – and that what had occurred was a ritual, a ceremony that involved a nick, but one which left no trace and that was symbolic of the lawful cultural practices of the Dawoodi Bohra Muslim community (Trial Transcript: 66–67). It is not the lack of evidence of the ‘nick’ that is, we suggest, the most confronting element to Johnson J. Indeed, this is ignored without much deliberation on the basis of what was acknowledged by the forensic expert – that any nick could have healed. What, we suggest, confronted Johnson J (and perhaps the jury), and certainly is threatening to a citizenry that harbours an imagination of cultural plurality as multiculturalism, democracy and indeed justice, is that the ceremony – the reference to the practices of the Dawoodi Bohra Muslim community – points to the presence of lawful practices and was engaged in by the women themselves. That is, on the one side of this case, an image was produced of a violent ‘Imam’, who deceived police, and then, there are the victims – the girls, but also the women – who are seen as caught up in the patriarchal practices of Islam, lacking in agency, and certainly not in a position to authorise their own law. Indeed, the investigation itself, as interpreted by Johnson J, gestures to this very manoeuvre, as we discuss in the following, to produce the Amil as deceptive and to obscure the reality that men are absent from the practices.

Vaziri was questioned initially as to what he knew about the practices. As in so many cultures that practice FGC, men, including the Amil (or Imam), have no role and no place in what might be called, in an Australian parlance – inflected with histories of engagement with Indigenous laws – ‘women’s business’ or ‘women’s law’; the prosecution did not allege that he was present when the practice took place (Trial Transcript: 43–44). However, in the sentencing decision, the Court states that ‘it may be said that male religious leaders in the Dawoodi Bohra community have encouraged the practice of “khatna”‘, and that it ‘appears that the use of “khatna” is still promoted [by the male religious leaders] in jurisdictions where there is no express prohibition of FGM’ R v. A2; R v. Magennis; R v. Vaziri (No. 24) [2016] NSWSC 737 [76]¹. This is followed by the statement that the evidence in the case ‘points to ready acceptance of the practice by many female members of the community’ [76–77]. Here, it is the male ‘religious leaders’ of the community who are the agents, encouraging the practice, and the women who are the ready vessels, accepting and indeed embodying the practice. This portrayal belies the reality that it is usually the women who are agents of the practice, and the men are unaware or left out. The Court also recognises that the women who ‘seek to have “khatna” performed on their own children’ have experienced the practice, referring to a ‘generational [sic] cycle’, which he states, has contributed to the ‘difficulty in stamping out the practice’ [78]. The reference to ‘generational cycle’, perhaps a misnomer for ‘intergenerational cycles’, gives us again the image gestured to in Senator Kroger’s concern with ‘scars that will never heal’. These women are marked as the embodiment of Islam’s supposed patriarchal relations, as if the women have no agency in choosing to perform the practices, or dialogue about their role and place in their own societies. The generational cycle is thus like ‘child abuse’, and FGM/FGC is represented here as a trauma that colonises the mind of the women and renders them victims (of male violence).

The focus on the Amil obscures the conundrum of law in this case; a law that recruits rhetoric on the protection of women at the same time that it denies, or we might even say closes in on the women as agents. We suggest that an awareness of the law-bearing status of women in the communities that engage in these practices would demand recognition of the lawful nature of the practices, not simply as ‘culture’, ‘tradition’ or ‘ritual’, but as practices of law that need to be understood and acknowledged as such. Ahmadu makes similar points in relation to the circumcised and circumcising women in Sierra Leone – they are the women who bear the political and legal power in that culture (Ahmadu, 2000). Mustafa, of the Dawoodi Bohra community, eloquently iterated this in her 2018 public discussion of the practices of the Dawodi Bohra and the importance of their remaining in the purview of women. In anthropological studies, such as that done by Schultz and Lien, they note the careful practice of the women as deciders of the form of the practices, as the authorities over when and where and how the practice occurs, in consultation with the legal texts – the Hadith and the Qur’an (2014: 211). Leonard (2000) and Johansen (2002) are similarly attentive to the powerful and authoritative presence of women in the ceremonies. It is the presence of these women, and their status as law bearers, that western law works to occlude. Shifting practices of law to practices of tradition or culture leaves little room for the women to be recognised as authoritative, lawful practitioners in those communities and allows them to be constructed as vessels and as vultures, waiting for western law to unveil them, in Hanson-Young’s terms, and lift the ‘religious and cultural cloak’.

Conclusion

The jury in the Magennis and Vaziri case, as with the judge and much of the whiter Australian population, applied the associations of FGM and Islam and ideas of mutilation to the evidence presented before them. Despite no evidence of the practices, despite the full knowledge that, if something had occurred it was not, even by the judge’s interpretation, ‘mutilation’, the images and imaginations of the practices prevailed. The defendants – two women and one man – were found guilty and sentenced to imprisonment and home detention. In this sense, the jury enjoyed, what is so common on this topic, a form of perversion that defied any disruption to the intimacy and ‘good feeling’ in Ahmed’s terms, of ‘proximate [white] bodies’. But the bad feeling cannot be closed upon entirely, as it takes much work – as witnessed in the Vaziri and Magennis case and in FGM laws and policies more generally – to produce FGM/FGC as injurious practices and as practices perpetrated by men against women under the rubric of ‘culture’, ‘tradition’ and ‘religion’. The impossibility of seeing women in these communities as the bearers and wielders of law limits the legal and cultural possibilities for different conversations, approaches and laws.

Postscript – In 2018, the conviction of the three defendants in Vaziri and Magennis was overturned on appeal.¹⁷ The Court of Criminal Appeal of the Supreme Court of NSW found that the trial judge had misconstrued the meaning of ‘mutilate’ and misdirected the jury as to an essential element of the offence [521] and that there was a potential miscarriage of justice on other grounds [358]. Understanding ‘mutilation’ is, at least, recognised as a wrestle between multiple ideas about what constitutes a body, and indeed what constitutes a violence. In February 2019, however, the Crown’s Special Leave Application for an appeal to the High Court of Australia was granted on the question of what constitutes mutilation, and as a corollary, the constitution of the clitoris. A slightly comic inflection on our earlier discussion as to the question of the authority and presence of women in the practices. The deliberations of High Court continue.

Footnotes

Authors Contribution

The authors’ names are in alphabetic order and all contributed to the article equally.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Nan Seuffert

Notes

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