As a final point, in cases where the prosecutor is considering whether or not to prosecute under the FGM Act 2003, a section the law provides an alternative defence. Section 1(4) of the FGM Act 2003 states that a person may perform a practice that is outside the definition of FGM if they have a good reason for doing so. In particular, a person may perform a pregnancy termination (when performed by a woman, and not a medical doctor) if they have a good reason to do so. The decision to prosecute under the FGM Act 2003 or consider these defences is for prosecutors and not for juries.
It is worth mentioning that section 41 of the FGM Act 2003 provides that it is not an offence to leave the body of a female child in a cosmetic way, unless it is performed with the specific intention to mutilate or cause harm. In the case of pregnancy termination (and similar situations) the prosecution has to prove that a pregnancy termination was performed within the scope of the FGM Act 2003 or that there is a good reason to perform pregnancy terminations. In other words, the prosecution has to show that the pregnancy termination is not within the exception provided for in the FGM Act 2003.
It is unlikely that there will be a prosecution of this type in the near future. However, if a person performs a pregnancy termination within these circumstances, it may be that the prosecution is considered to have failed because section 41 of the FGM Act 2003 provides a two-tier defence.
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