New York Penal Law Section 130.85: Genital Mutilation

by ECL Writer
Genital Mutilation

In a world increasingly focused on gender equality, human rights, and bodily autonomy, the issue of genital mutilation has become a matter of grave concern. New York, often a trendsetter in legal matters, has not remained untouched by this pressing issue. The state has taken a significant step towards safeguarding the rights and dignity of individuals by enacting New York Penal Law Section 130.85, a statute that specifically addresses genital mutilation.

Genital mutilation, sometimes euphemistically referred to as “female genital cutting” or “female circumcision,” involves the removal or alteration of external genitalia for non-medical reasons, typically as a cultural or traditional practice. While discussions on this topic often centre on female genital mutilation, the law in New York covers all individuals, regardless of gender, who are subjected to genital mutilation.

In this article, will delve into New York Penal Law Section 130.85, exploring its purpose, provisions, and implications. We will examine the legal framework, penalties, and the broader context surrounding this crucial statute, shedding light on the efforts to combat genital mutilation within the state.

Genital Mutilation

A girl who has had any portion of her labia or clitoris circumcised, excised, or infibulated is guilty of female genital mutilation, which is a sex crime under New York Penal Code 130.85. If you are the parent or guardian of a girl who is under the age of 18 and you give your consent to the circumcision, excision, or infibulation of any part of her labia or clitoris, you will still be charged with female genital mutilation even if you are not the one who performs the procedure. However, if the procedure was carried out by a certified medical professional or a midwife and was required for medical reasons, you would not have committed this offence.

Defences Against Genital Mutilation

Under New York Penal Code § 130.85(2), medical necessity can serve as a valid defence against a charge of female genital mutilation. However, this defence is contingent upon certain qualifications and conditions. Specifically, to raise the defence of medical necessity:

  • Qualification as a Medical Professional: You must be a licensed medical professional or a midwife, or you must be in the process of training to become a midwife.
  • Medical Reason Required: There must be a legitimate medical reason for performing the circumcision, excision, or infibulation. If the procedure is solely carried out as a customary or ritualistic practice, it would constitute a sex crime.

Furthermore, it’s important to note that female genital mutilation is categorized as a sex crime only when performed on a child. In this context, a child is defined as a female under the age of 18 years old. Consequently, if the victim is 18 years of age or older, this defence can be invoked, and the charge would not apply. However, it’s crucial to understand that knowledge of the victim’s age, specifically whether they are under 18 or not, is not considered an element of this crime. In other words, you cannot use a lack of awareness regarding the victim’s age as a defence.

To summarize, the defence of medical necessity under New York Penal Code § 130.85(2) can be raised by qualified medical professionals or midwives only when there is a valid medical reason for the procedure. Additionally, the charge of female genital mutilation pertains to individuals under 18 years old, and lack of knowledge about the victim’s age does not serve as a defence.

Sentence for Genital Mutilation

The maximum term for female genital mutilation is 4 years in jail because it is a class E felony. The judge may decide to sentence you to a 10-year probation term rather than to prison, especially if you have no prior convictions.

New York Penal Code § 130.85: Female genital mutilation

Female genital mutilation is unlawful when:

  • a person intentionally circumcises, excises, or infibulates another person’s labia majora, labia minora, or clitoris if they are under the age of eighteen;
  • Being the parent, guardian, or other designated caretaker of a child under the age of 18, he or she knowingly gives consent to the circumcision, excision, or infibulation of the child’s labia majora, labia minora, or clitoris in whole or in part.

Such circumcision, excision, or infibulation is not prohibited by this clause if the following conditions are met:

  • a person performing it is a licensed medical professional in the location where it is performed, and it is required for the patient’s health; or
  • performed by a person who is licensed in the location where it is performed as a medical practitioner, midwife, or somebody pursuing training to become one of those professionals, on a person who is in labour or has just given birth, and is performed for medical reasons related to that labour or birth.

No consideration of the impact on the person who is the subject of the procedure of any belief on the part of that person or any other person that the procedure is necessary as a matter of tradition or ritual shall be made for the purposes of paragraph (a) of subdivision two of this section.

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