Female Genital Mutilation: New York Penal Code § 130.85

Female genital mutilation is a felony Class E offense and, according to New York Penal Code § 130.85, it is the excision, circumcision or infibulation of any part of the clitoris or labia of a girl who is younger than eighteen years of age. Parents and guardians who consent to the excision, circumcision or infibulation of any part of the the clitoris or labia of a female in their care or custody who is not at least eighteen years old is liable to be charged with female genital mutilation. The exception to the rule is when the excision, circumcision or infibulation of the clitoris or labia is medically necessary and is done by a licensed medical practitioner, midwife or a person in training to become a licensed medical practitioner or midwife. Even though some may consider removal of female genitalia as a culturally acceptable practice, under New York law, it is a sex crime.

Suppose that a husband and wife along with their 13-year old daughter immigrated from an African country to New York. While living in New York, the parents solicited a family friend to operate on and remove the young girl’s labia minor and clitoris. The family friend had performed many such procedures while in their former home country but was not a licensed medical practitioner, midwife or a person in training to become a licensed medical practitioner or midwife and consented to the parent’s request. The daughter was subjected to the operation. The procedure is clearly a sex crime as defined in New York Penal Code § 130.85, and the parents, along with the family friend, could all be charged with female genital mutilation.

Age of the child. Female genital excision, circumcision or infibulation is a sex crime only if it is done on a child. Under the auspices of New York Penal Code § 130.85, a child is a girl who is less than eighteen years of age. Even though the persons involved with the procedure might claim that they were not aware that the girl was less than eighteen years of age, that lack of knowledge is not an accepted reason to excuse the case. If it can be shown that the child was older than eighteen years of age at the time of the procedure, then the charge may be reconsidered.

Medical necessity. If the excision, circumcision or infibulation of the clitoris or labia of a girl under of eighteen years of age is medically indicated for the health of the girl and is performed by a licensed medical practitioner, midwife or a person in training to become a licensed medical practitioner or midwife, then no violation of New York Penal Code section 130.85(2) took place; this section of the law may be invoked as a viable line of defense to a charge of female genital mutilation. Excision, circumcision or infibulation of the clitoris or labia of a girl less than eighteen years of age is a sex crime in the state of New York if it is performed only to satisfy a cultural custom or ritual.

Other lines of defense. Understanding the details of a case and how they may be used to help defend against a charge of female genital mutilation is critical to winning a case or reducing the charge. A highly skilled defense attorney with deep experience will build a case to mitigate or ward off the charge of female genital mutilation.

Imprisonment. A person convicted of genital mutilation may be sentenced up to four years of imprisonment, as a felony Class E offense.

Probation. If a conviction results and it is the first conviction, the court has the option of sentencing the convicted to ten years of probation instead of time in prison.

To reiterate, a person may be prosecuted for female genital mutilation if:

1. A person who is not a licensed medical practitioner, midwife or a person in training to become a licensed medical practitioner or midwife and knowingly and for no medical reason excises, circumcises or infibulates the whole or any part of the clitoris or labia majora or labia minora of a girl who is not yet eighteen years of age; or
2. A person who is not a licensed medical practitioner, midwife or a person in training to become a licensed medical practitioner or midwife knowingly and for no medical reason knowingly consents to the excision, circumcision or infibulation of the whole or any part of the clitoris or labia majora or labia minora of a girl who is not yet eighteen years of age and who is under their care or custody.

Under New York Penal Code § 130.85, the excision, circumcision or infibulation of the whole or any part of the clitoris or labia majora or labia minora of a girl who is not yet eighteen years of age is not a violation of this section of the New York law if the operation is:

1. Necessary to the person’s health on whom the operation is performed and is performed by a licensed medical practitioner, midwife or a person in training to become a licensed medical practitioner or midwife.
2. Performed on a person in the process of delivering a fetus or who has just given birth and is done for medical reasons connected with the labor or birth by a licensed medical practitioner, midwife or a person in training to become a licensed medical practitioner or midwife.

Even if a person views the excision, circumcision or infibulation of the whole or any part of the clitoris or labia majora or labia minora of a girl under the age of eighteen years as a rite of passage or cultural norm, it is considered a crime in the state of New York. If you are charged with female genital mutilation, it is imperative that you seek legal counsel from a skilled and knowledgeable attorney firm that is proven and successful in defending individuals charged with misdemeanor and felony sex crimes. Misdemeanor and felony sex crimes fall under a complicated set of laws.

An individual who is convicted of female genital mutilation, which is a felony, faces the possibility of a four-year jail sentence or a ten-year probationary period. Because of these potential penalties, it is critical that a person charged with female genital mutilation engages the services of a seasoned defense attorney firm that knows what it takes to build a strong case to combat the charge.

Barry C. Weiss P.C. is a formidable attorney firm that has successfully defended clients accused of misdemeanor and felony sex crimes in the state of New York, defending against such charges as female genital mutilation, forcible touching, assaulting a person sexually, using a controlled substance to facilitate a sex crime, raping a person, molesting a child, engaging in a criminal sexual act, and committing other sex crimes.

We can be reached at (212) 785-1300 or newyorkcriminallawyer24-7.com to schedule a no-obligation, free legal consultative meeting to evaluate your case.

For additional information, refer to the following sections of the New York Penal Code:

1. Forcible touching: § 130.52
2. Facilitating a sex offense using a controlled substance: § 130.90