The NSW Court of Criminal Appeal has found that a body modification artist who performed cosmetic labiaplasty on an adult woman with her consent, should not have been convicted of female genital mutilation contrary to  s 45(1)(a) of the Crimes Act 1900.

The following outlines the key features of the case and its implications for the future.

The trial decision

In 2021, Brendan Russell was  convicted of three offences related to procedures he performed as a "body modification artist" within a tattoo parlour in Erina, NSW. The three offences were:

  • Female genital mutilation contrary to  section 45(1)(a of the Crimes Act 1900, which related to a procedure Russel performed on a woman's genitalia with a branding iron, amounting to an amateur labiaplasty.
  • Grievous bodily harm with intent contrary to  section 33(1)(b) of the Act, which related to an amateur 'tummy tuck' performed on a woman who later had to seek medical attention, as a hole had severed her stomach muscles.
  • Manslaughter by criminal negligence contrary to  section 18(1)(b) Act, which related to the death of a woman due to blood poisoning after Russell implanted a snowflake under her skin, which subsequently became infected.

All the women involved were adults, who consented to Russell performing the procedures at the time. However, the District Court concluded that  consent was not a defence to any of the charges.

Russell was convicted on all counts and sentenced to 10 years imprisonment with a non-parole period of 7 years and 6 months.

The appeal decision

Russell appealed both his conviction and sentence, with the NSW Court of Criminal Appeals  deciding the matter on Friday. There were multiple grounds of appeal including:

  • That the trial judge erred in ruling that the offence of female genital mutilation under section 45(1)(a) of the Act applies to body modifications performed on adult women who have consented to such modifications for reasons other than traditional or ritualistic practices.
  • That the trial judge erred in concluding that consent is no defence to a charge of causing grievous bodily harm with intent contrary to section 33(1)(b) of the Act.
  • The the verdict  of manslaughter by criminal negligence contrary to section 18(1)(b) Act was unreasonable and cannot be supported having regard to the evidence, and that the trial judge erred by failing to direct herself as to and not applying the appropriate standard of proof in finding that septicaemia was a significant or substantial cause of death.
  • That the trial judge erred in assessing the indicative sentences by failing to adequately take into account various factual matters, including that each of the complainants had consented to the procedures, resulting in the imposition of an aggregate sentence that was manifestly excessive.

The appellate court only accepted one ground of appeal, that referencing the female genital mutilation charge, and dismissed the rest.

Regarding Russell's conviction of female genital mutilation under section 45(1)(a) of the Act, the appellate court concluded that the recent High Court decision of The Queen v A2  (2019) 269 CLR 507 had provided strong indications that the offence under 45(1)(a) was restricted in scope to proscribed acts of mutilation performed on female children as a result of ritualistic practices.

As the female genital mutilation procedure was performed on an adult woman, the appellate court concluded that Russell should not have been convicted of this offence. As a result, Russell was resentenced to an aggregate sentence of 7 years imprisonment, with a non-parole period of 5 years and 3 months.

Why did the appellate court limit the application of the FGM offence?

The appellate court accepted (at [27]) that there was "no textual support for the confinement of the operation of s 45(1) of the Crimes Act  to female children".  Section 45  contains the prohibition on female genital mutilation in New South Wales and reads as follows:

45 Prohibition of female genital mutilation

(1) A person who–

(a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or
(b) aids, abets, counsels or procures a person to perform any of those acts on another person,is liable to imprisonment for 21 years.

(3) It is not an offence against this section to perform a surgical operation if that operation–
(a) is necessary for the health of the person on whom it is performed and is performed by a medical practitioner, or
(b) is performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth, by a medical practitioner orauthorised professional, or
(c) is a sexual reassignment procedure and is performed by a medical practitioner.

(4) In determining whether an operation is necessary for the health of a person only matters relevant to the medical welfare of the person are to be taken into account.

(5) It is not a defence to a charge under this section that the person mutilated by or because of the acts alleged to have been committed consented to the acts.

The appellate court however did find strong evidence in obiter dicta in  The Queen v A2  (2019) 269 CLR 507 that the offence was to be construed to apply only to proscribed acts of mutilation performed on female children as a result of ritualistic practices.

In The Queen v A2,  the High Court was asked to decide what level of injury constitutes female genital mutilation under this offence. This arose within the context of three people who had been found guilty of mutilating the genitals of two girls aged six and seven in New South Wale by performing a ceremony known as 'khatna', whereby the nurse 'nicked' each girl's clitoral hood with a sharp implement. The Court concluded that the convictions should be upheld as " 'any extent of injury' to the genitals of a female can amount to female genital mutilation".

In its decision, the High Court made several comments that the purpose of section 45 was to protect against injurious practices performed on children. It also noted, in its deliberation of the extent of injury required to constitute female genital mutilation, that reference should be had to the evident purpose or policy of an offence – even if contrary to the literal meaning of words used.

Finally, Kiefel CJ and Keane J also made comments (at [49]) indicative that the offence was not intended to encompass cosmetic procedures performed on adult women, noting that:

The respondents also contended that if "otherwise mutilates" has the extended meaning provided by the term "female genital mutilation", s 45(1) would make it an offence to carry out a cosmetic procedure undertaken by some adult women, such as that which involves the piercing of the genitals. The answer to the argument is that no such problem would arise if "otherwise mutilates" is taken to refer to practices to which female genital mutilation refers.

As a result, the appellate court in Russell concluded (at [37]) that ground 1 of the appeal was successful and the trial judge had erred in ruling that the offence of female genital mutilation under section 45(1)(a) of the Act applies to body modifications performed on adult women who have consented to such modifications for reasons other than traditional or ritualistic practices.

Future implications

As it currently stands, this decision indicates that section 45 of the Crimes Act does not apply to cosmetic procedures performed on the genitals of adult women for non-ritualistic purposes.

However, there is also a strong likelihood this decision will be further appealed to High Court to decide whether the appellate courts interpretation of The Queen v A2  was correct.

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