N.Y. Pen. Law § 130.85
Female genital mutilation is a unique sex crime that does not involve sexual intercourse, anal sex, oral, sex or another sexual conduct. It involves circumcising, excising or infibulating any part of the labia or clitoris of a girl who is under 18 years old typically as part of a cultural rite of passage. It is practiced legally in some countries, but is against the law in New York. Even if you are not the person who does the circumcising, excising or infibulating, you will still face a charge of female genital mutilation if you are a parent or guardian of a girl who is under the age of 18 years old and you consent to the circumcision, excision or infibulation of any part of her labia or clitoris. It is a Class E felony and if you are convicted you could be sentenced to up to 4 years in prison. N.Y. Pen. Law § 130.85. If you are arrested and charged with female genital mutilation, it is important to immediately contact an experienced Nassau County Female Genital Mutilation Lawyer who is familiar with New York law related to sex crimes and who will aggressively defend you against the charges.
Circumcision, excision, and infibulation are each different, but each involves in some way cutting or modifying all the female genitalia. Most people associate circumcision with a procedure that is often performed on infant boys to remove the penile foreskin. However, for girls circumcision involves the removal of the clitoris. Excision is the removal of the clitoris and the labia minora. Infibulation involves the removal of all external genitalia and the stitching together of the two sides of the vulva.
In some cultures female genital mutilation is performed on girls to ensure that they remain virgins until marriage. However, research has shown that it can be extremely harmful to a girl's physical and mental health. Female circumcisions, excisions and infibulations are often performed without anesthesia and antiseptics, risking the health of the girls. As a result of these procedures, many girls suffer chronic infection, hemorrhage, chronic severe pain during urination, problems with menstruation, painful sexual intercourse, and death. In addition to the physical problems, victims also often suffer from psychological trauma.
Arrest and Arraignment ProcessIf you are accused of female genital mutilation a police officer will arrest you and take you into custody at the local police precinct. You will then be taken to Central Booking where you will remain until your arraignment. The arraignment is the court hearing where you are formally charged. Even if you are arrested on a charge of female genital mutilation, it is possible that the prosecutor will add additional criminal charges. For example, the prosecutor may also charge you with endangering the welfare of a child. N.Y. Pen. Law § 260.10. You may even be charged with assault. In addition, you may face a federal charge of female genital mutilation. 18 U.S.C § 116. The federal statute is substantially the same as the New York statute.
The next step in the arraignment hearing is the issue of bail. While you were at Central Booking you would have been interviewed by someone from the Criminal Justice Agency who, based on that interview, will make a recommendation to the court as to whether bail should or should not be set in your case. The judge will make the ultimate determination as to whether or not bail is required. It is possible that the judge will set bail, release you on your own recognizance, or decide that you should be held without bail. You will then learn when you must next appear in court. It is critical for you to be present at each court date. If you are not then the judge will issue a bench warrant for your arrest.
Between the time of your arraignment and the actual trial the prosecutor may offer you a plea deal that would require you to plead guilty to reduced charges. If a plea agreement is reached then a trial will not be necessary.
Defenses to the Crime of Female Genital MutilationMedical necessity. Under the female genital mutilation statute, medical necessity is a defense to this charge. N.Y. Pen. Law § 130.85(2). However, in order to raise this defense you must be a licensed medical professional, a midwife, or are training to become a midwife. In addition, there must be a medical reason for performing the circumcision, excision or infibulation. .
Age. Female circumcision, excision and infibulation is only a sex crime if it performed on a child. A child is defined as girl who is under the age of 18 years old. Thus, if the victim is 18 years or older, then you have a defense to this charge. However, knowledge that the victim was under 18 years old is not a element of this crime. This means that you do not have a defense simply because you were unaware that the child was under 18 years old. N.Y. Pen. Law § 15.20. Furthermore, consent is not a defense. Neither a girl who is under 18 years old or her parents or guardians can consent to the procedure under circumstances where it would otherwise be illegal. Parents or guardians can be charged with female genital mutilation in the same way that that the person who performed the circumcision, excision or infibulation can be charged.
Cultural or religious rite. That the procedure was performed as part of a religious or cultural rite is not a valid defense under New York law.
SentencingBecause female genital mutilation is a Class E felony the possible sentence is up to 4 years in prison. There is no minimum sentence for first time offenders. This means that if you do not have a criminal record, if convicted you may be sentenced to significantly less time than 4 years in prison. You may even be sentenced to probation. However, if you already have a felony conviction, you will face a minimum sentenced of 3 years in prison. If in addition to female genital mutilation you are charged and convicted of another crime such as endangering the welfare of a child, your sentence may be more harsh than it otherwise might be. If you are prosecuted under the federal female genital mutilation statute, you may face a sentence in a federal facility.
If your sentence includes probation, because female genital mutilation is both a felony and a sex crime, the term of probation will be 10 years. Probation comes with many restrictions. These rules may include:
If you break any of the conditions of your probation a judge may send you to jail.
In addition to going to jail or prison, or having to serving probation, if you are convicted of the crime of female genital mutilation, you will end up with a criminal record that has felony conviction. This may cause you and your family financial difficulties as it may make it challenging for you to find a job. Employers may be reluctant to hire you as they may not be comfortable hiring someone with a criminal record, particularly if your record includes a felony. Some jobs such as teaching jobs will be unavailable to you as teachers cannot have felony convictions. A felony conviction may also make it difficult to get a license to practice law or to practice medicine. Even candidates who apply for jobs at fast food restaurants are sometimes subject to criminal background checks, as are some who apply to be volunteers. If you already are employed at the time of your conviction, should your employer learn that you have been convicted of a felony, you may lose your job.
While you may feel strongly that the activities described as female genital mutilation should not be considered a crime as they are a cultural rite of passage, New York law does not view it that way. If you are accused of this crime you may end up being convicted of a felony. For this reason it is important to immediately contact experienced representation as soon as you are accused of female genital mutilation or any other sex crime. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who are accused of various sex crimes, such as rape, sexual misconduct, criminal sexual act, aggravated sexual abuse, course of sexual conduct against child, predatory sexual assault against a child, and facilitating a sexual offense with a controlled substance. Furthermore, we are familiar with New York criminal court procedure from arrest to the end of the criminal process. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of sex crimes in the following locations: