NY Penal Law § 130.85: Genital Mutilation

NY Penal Law § 130.85: Genital Mutilation

Female genital mutilation is a sex crime. Under New York Penal Code § 130.85, this crime involves excision of, circumcising, or infibulating any part of the labia or clitoris of a girl who is under the age of 18 years. Even if you are not the individual who performs the circumcising, excising or infibulating, you can still face a charge of female genital mutilation if you are the parent or guardian of a girl who is under 18 years old and you consented to the circumcision, excision or infibulation of any portion of her labia or clitoris. Nonetheless, you cannot be charged with this crime if the procedure was a necessity for medical reasons and was carried out by a certified nurse midwife or licensed medical practitioner. While some perceive removing female genitalia as a cultural rite, under New York legislation, it is clearly a sex crime.

Example

A young girl and her family recently came from Ethiopia to live in New York. The girl’s parents arranged for the girl to submit to an excision, which involves the removal of the clitoris and the labia minora. The procedure was carried out in the family’s apartment by a friend of the family who had performed many of these procedures back in Ethiopia. The girl’s parents and  the person who carried out the procedure could all be prosecuted for the crime of female genital mutilation. Although the parents did not perform the procedure, they could be prosecuted under New York Penal Code § 130.85 because they consented to the girl enduring it.

Offenses that are Related

Facilitating a sexual offense with a controlled substance: New York Penal Code § 130.90

Forcible touching: New York Penal Code § 130.52

Possible Defenses

Medical necessity is a defense under New York Penal Code § 130.85(2) to a charge of female genital mutilation. However, in order to bring this defense you must be a licensed medical professional, a certified nurse midwife, or be in training to become a midwife.  Additionally, there must be a clear medical purpose for performing the circumcision, excision or infibulation. If the only reason for carrying out this procedure was custom or ritual, then you will have committed a sex crime.

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Female circumcision, excision and infibulation is a sex crime only if it performed on a child.  For the purposes of this legislation, “child” is defined as girl who is under the age of 18 years old. Therefore, if the victim is 18 years or older, you have a valid defense against this charge. That said, awareness that the victim was under the age of 18 is not an element of this crime. In other words,  you do have no defense simply because you were unaware that the girl was younger than 18 years old

Legal Scenario: What Would You Do?

Scenario

A mother from a traditional community is being pressured by elder family members to have her 12-year-old daughter undergo a ceremonial cutting procedure. She refused to allow it, but her sister-in-law took the child to have the procedure performed without the mother's knowledge, and now both the mother and sister-in-law are facing criminal charges.

Can I really be charged under NY Penal Law § 130.85 even though I didn't consent to or participate in my daughter's procedure?

Attorney's Answer

Under NY Penal Law § 130.85, anyone who knowingly facilitates or allows the genital mutilation of a female under 18 can face criminal liability, even if they did not physically perform the act. However, in your case, the fact that the procedure was done without your knowledge or consent is a critical defense that your attorney would raise. It is important to understand that cultural or religious justifications are explicitly not recognized as defenses under this statute. A skilled criminal defense attorney can work to demonstrate your lack of involvement and fight to have the charges against you dismissed while building the strongest possible case on your behalf.

This is general information only. Contact us for advice specific to your situation.

The Sentence

Sionce female genital mutilation is a class E felony, the possible sentence is as many as 4 years in prison. If you have no prior convictions, a judge might opt to sentence you to a 10 year probation term instead of sending you to prison.