International and European conventions
Italy was one of the countries to support Resolution 67/146 of the General Assembly of the United Nations calling for a worldwide ban on FGM, adopted in 2012 (UNGA, 2013). In addition, Italy has ratified various international conventions against FGM, including the Universal Declaration of Human Rights (UDHR), the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Rights of the Child (CRC), the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the Charter of Fundamental Rights of the European Union (2010/C 83/02) (EIGE – European Institute for Gender Equality, 2013). Furthermore, in keeping with Articles 2 and 3 of the Italian Constitution, the practice of FGM may be considered persecution for reasons of membership of a particular social group.
In 2013 Italy ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence (also known as the Istanbul Convention), the first regional treaty to recognise the existence of FGM in Europe and the need to tackle the problem in a systematic manner.
Article 38 of the Convention specifies that:
Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised:
- excising, infibulating or performing any other mutilation to the whole or any part of a woman’s labia majora, labia minora or clitoris;
- coercing or procuring a woman to undergo any of the acts listed in point a;
- inciting, coercing or procuring a girl to undergo any of the acts listed in point a.
The Convention requires member states to increase and implement preventive measures, addressing affected communities, citizens as a whole and those who work in the sectors concerned. It also specifies the obligation to protect and support women and girls, ensuring that their needs and their safety are regarded as priority. In addition, legal measures specified are to form part of transnational policy, in cooperation with NGOs and support associations.
Law N. 119, 2013 (Urgent measures on safety and to reduce gender violence) permits the issuing of a residence permit to foreign women suffering violence, injury, beatings and/or abuse in the domestic environment (including FGM), similar to provisions for the victims of trafficking. The perpetrators of violence may be deported (even where the conviction is not definitive). The law also grants the victim legal aid in derogation of income limits. In addition, the law provides for a national action plan against sexual and gender violence, as adopted in 2015 in line with the Istanbul Convention.
A specific criminal law concerning FGM has been in force in Italy since 2006 (Law 7/2006). Articles 583bis and 583ter of the Penal Code prohibit all forms of FGM, including clitoridectomy, excision, infibulation and any other practice causing effects of the same kind, or causing mental or physical illness (EIGE – European Institute for Gender Equality, 2013). The principle of extraterritoriality is applicable, making it illegal for FGM to be carried out by an Italian citizen or a foreigner residing in Italy or on an Italian citizen or person residing in Italy, even if the crime is perpetrated outside Italy.
FGM is punishable by a prison sentence of three to 12 years. According to the law, “Punishment is decreased to two-thirds if the lesion is minor. Punishment is increased by a third when the practices referred to in Articles one and two are committed to the detriment of a minor or if the fact is committed for the purpose of profit. The conviction of a healthcare professional for some of the crimes foreseen by article 583-bis includes the added punishment of disqualification from practising the profession from three to ten years.” (Parlamento Italiano, 2006).
Child protection law
The general child protection law could be applied in cases of FGM. Article 330 of the Civil Code refers to the removal of the child from the family and the suspension of custody of a parent whose behaviour is threatening the child’s wellbeing. Moreover, Article 333 of the Civil Code refers to preventive interventions in the case of prejudicial parental behaviour (EIGE – European Institute for Gender Equality, 2013).
In addition, Law N. 172/2012 (through which Italy ratified the Council of Europe Convention for the Protection of Children against Exploitation and Sexual Abuse, or Convention of Lanzarote) incorporated new offences into the Penal Code, as well as harsher punishments for existing offences. In relation to FGM, the Convention introduced the additional punishment of loss of parental authority and permanent prohibition from any role relating to the protection, legal guardianship and care of the child.
Asylum claims on the grounds of FGM could fall under D. L. 251/2007 regarding acts of persecution. Article 7, paragraph 2, letter A refers to “acts of physical or psychological violence including sexual violence”, while Article 8, paragraph 1, letter D refers to “acts directed against a particular social group”.
The law covers past and future persecution (Article 3, paragraph 4). On the basis of the combined provisions of these articles, FGM constitutes a form of gender-based moral and physical violence, on the grounds of which international protection in the form of refugee status is recognised.
Directive 2013/33/EC of the European Parliament and of the European Council of 26 June 2013, laying down standards for the reception of applicants for international protection (implemented as D. L. 142/2015), specifically mentions victims of FGM among vulnerable persons entitled to receive appropriate healthcare during their asylum application procedure (Article 17, paragraph 1).
Directive 2011/95/EC of the European Parliament and of the European Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted also refers to FGM as grounds for the recognition of refugee status.
General law with regard to professional secrecy and disclosure may be used to report cases of actual or planned FGM According to Article 361 of the Italian Penal Code, all public officers have the duty to report a criminal offence of which they become aware in the course of performing their professional duties or as a result of their profession, otherwise they might be subjected to administrative sanctions. Article 362 of the Penal Code affirms the same duty to report of any person responsible for the delivery of a public service. Under Article 365 of the Penal Code, health professionals shall be prosecuted if they fail to report information about a crime obtained in the course of their professional duties, unless doing so would expose the patient/client to criminal prosecution (EIGE – European Institute for Gender Equality, 2013).