International and European Conventions
The Federal Republic of Germany has signed European and international conventions on children’s rights and violence against women, including FGM. These conventions include, among others, the Maputo Protocol to the African Charter, UNCRC, UDHR, CEDAW, CAT, CRC, ICCPR and ICESCR. Germany has signed but not yet ratified (as of June 2016) the Istanbul Convention on combatting violence against women, adopted by the Council of Europe in 2011 (COE, 2016). The Convention expressly refers to FGM, detailing measures to prevent the practice, protect victims and prosecute perpetrators, as well as to coordinate measures to end FGM at the national and European levels.
In 2013 the mutilation of female sexual organs was specifically declared a criminal offence under Article 226a of the German Penal Code (StGB), “Female Genital Mutilation”, and classified as grievous bodily harm punishable by a prison term of up to 15 years. In particularly serious cases (i.e. where FGM results in death), Article 227, “Grievous Bodily Harm Resulting in Death”, applies. Article 225 on the “Maltreatment of Charges/Wards” may also apply in some cases.
A medical professional accused of FGM will be charged under Article 226a of the German Penal Code (StGB) and, if found guilty, their licence to practise revoked. Under German law, all persons living in Germany are obliged to report any knowledge of a serious crime, as specified in Article 138, “Failure to Report Planned Criminal Offences”. However, Article 226a on FGM is not explicitly referred to in Article 138. FGM is also prosecutable if carried out abroad, according to Article 5, “Foreign Crimes with a Particular Connection to this Country”, and pursuant to Article 7, “Application to Foreign Crimes in other Cases”. Furthermore, Article 78b specifies a statute of limitation for FGM as beginning only once the victim reaches the age of 30.
Pursuant to Article 26, “Incitement”, parents can be held responsible as instigators of FGM. According to Article 171, “Violation of the Duties of Care or Education”, parents can be held responsible for the non-implementation and/or non-performance of the duties of a parent/legal guardian. Other persons involved in facilitating FGM may be viewed as co-perpetrators subject to criminal prosecution under Article 25, paragraph 2 of the German Penal Code (StGB), “Perpetration”. Consent to genital mutilation by girls, women or parents are excluded, according to Article 228, “Consent”.
The introduction of Article 226a has resulted in changes to the Code of Criminal Procedure, according to which the injured party may join a lawsuit as joint plaintiff, and is also entitled to a guardian ad litem.
According to the UNHCR, 184 applications for asylum in the EU were granted on the grounds of FGM in 2013 (UNHCR, 2013).
German asylum law can be applied for gender-specific reasons. Under Article 60 of the 2005 Immigration Act, “Prohibition of Deportation”, individuals are protected from non-governmental persecution. In addition, the Residence Act (AufenthG) states that an individual may not be deported to a country where his or her life or freedom is threatened because of his or her affiliation to a certain social group. In this case, women and girls threatened with gender-based violence are a “defined social group”, such that the threat of FGM constitutes gender-based grounds for the granting of asylum. Women or girls already affected by FGM may also be entitled to asylum—for example where there is the threat of a more severe form of FGM in the case of marriage (e.g. infibulation) or birth (e.g. re-infibulation) (UNHCR, 2009).
In 2016 the government responded to the large number of refugees arriving in Germany by implementing an accelerated procedure for assessing migrants’ right to asylum (Bundesgesetzblatt, 2016). Under this procedure, the special needs of female victims of violence such as FGM can no longer be accommodated (including one-on-one discussions, gender-sensitive/female interviewers, etc.), despite the requirements of the EU Asylum Procedures Directives (END FGM, 2016).
Article 1631 of the German Civil Code (BGB), “Contents and Limits of Care and Custody”, stipulates that children have the right to a life free of violence, corporal punishment, psychological harm and other degrading measures, including FGM. The legal framework protecting the welfare of a child in the case of an impending or actual offence is provided by Article 8a of the Social Code, “Protection Order in the Case of Endangerment of the Child’s Welfare”, and Article 1666 of the Civil Code, “Court Measures in the Case of Endangerment of the Child’s Welfare”, while Article 1666a, “Principle of Proportionality; Priority of Public Help”, outlines recommended courses of action. In addition, Article 8 of the Social Code, specifies that children and young people are entitled to counselling without the knowledge and/or consent of a parent or guardian.
Table 1: Chain of action in suspected case of FGM
|Emergence of Suspected Cases / Self-reporting|
|Shelters with their own protection mandate|
pursuant to Art. 4 (1) of the Protection of Children Act (KKG) well as to Art, 8 b German Social Code (SGB VIII)
|Shelters with their own|
protection mandate pursuant to Art. 8a of German Social Code (SGB VIII)
|Shelters with their own|
pursuant to the Act on Protection of Public Security and Order (SOG) as well as the German Code of Criminal Procedure
|Shelters without their own|
|Protective facilities, in particular girls’ refuge of the Child and Youth Emergency Service (KJND)|| |
|State recognized professional staff in counselling centres*|| |
Staff of Children’s and Youth Welfare Services
|Doctors, midwives as well as other members of a health care profession|| |
General Social Service (ASD) (or Child and Youth Emergency Service (KJND)
Public Prosecutor’s Office
|* State recognized social workers, social pedagogues, marriage counsellors, family counsellors, child guidance counsellors and youth counsellors, recognized counsellors for drug-related issues||Case handover to|
General Social Service (ASD)
Outside of ASD standby times
Child and Youth Emergency Service (KJND)
In the event of significant indications in accordance with Art. 8 a of the German Social Code (SGB VIII)
Victims’ Rights Reform Act
The German parliament (Bundestag) passed the so-called “Opferrechtsreformgesetz” (the Victims’ Rights Reform) in 2015, thus transposing into national law EU Directive 2012/29/EU, known as the Victims’ Rights Directive (Official Journal of the European Union, 2012).1)According to the Victims’ Rights Directive, at-risk and affected girls and women are entitled to claim special protection, including professional support and legal protection. All EU member states are obliged to provide affected persons, including the non-documented, with information and counseling in a comprehensible form The Reform includes the Act on Psychosocial Support during Legal Proceedings (from 1 January 2017), entitling children and young people who are victims of serious violent crimes and sexual offences, including FGM, to psychosocial support during legal proceedings (Code of Criminal Procedure (StPO) Article 406g). Similar support for adult victims is made available on a discretionary basis.
Specific provisions for professional staff:
The obligation to secrecy for medical professionals is governed by Article 203 of the German Penal Code (StGB) and Article 9 of the professional code of conduct for doctors, which reads:
“Doctors must treat things which are entrusted to them or come to their notice in their capacity as a doctor (…) as confidential” (Article 9 (1))
“Doctors are authorised to disclose facts if they have been released from the obligation to discretion or if the disclosure is necessary for the protection of a more significant legal interest (….)” (Article 9 (2)).
As FGM is considered a violation of human rights, disclosure to protect “a more significant legal interest” applies where a girl/woman is at risk. This is ruled in § 4/Abs 3 “Act on cooperation and Information in Child protection. Independent of that, are doctors entitles to inform other without official release from the obligation to discretion according to § 34 StGB in cases of legitimate emergency.
Professional staff with a protection mandate
Professionals with a protection mandate, such as teachers, staff of girls’ shelters, children/youth emergency services and social services, police and the public prosecutor’s office must take action if they have a strong suspicion that a girl is at risk from FGM (Article 8, German Social Code; Articles 8a and 8b and Article 4, “Act on Cooperation and Information in Child Protection”). Where there is suspicion of FGM, such professionals have the right to request youth welfare services to assess a child’s welfare, for the purposes of which they are authorised to make available relevant information in an anonymised form.