Australia's first female genital mutilation trial: how a bright young girl convinced a jury | Society
mma* is 11 and uses phrases like “the best that I am able” when asked by an adult if she will answer their questions. Strikingly intelligent, the western Sydney daughter of African and Indian migrants can recall in vivid detail everything that happened on a recent school excursion, right down to the detailing on pottery she saw.
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So when she was called to give evidence against her mother in the supreme court, Emma was a reliable witness.
She testified in a landmark Australian case which centred around what happened to her in a room, about an hour away from her home, on an unspecified date which is likely to have been when she was seven years old.
Emma and her sister Caroline* were the – at times unwilling and overwhelmed – protagonists in the first female genital mutilation (FGM) trial in Australia, which has been playing out for the past nine weeks.
The sisters were born two years apart into the Dawoodi Bohra Shia Muslim community. Their path to the supreme court to give evidence while their mother sat in the dock began in 2012 when police officers arrived at their school asking to interview them.
pre bonded hairThe tapes of that interview, a textbook demonstration of police and social workers’ professionalism and patience, cover a range of subjects with each girl as interviewers slowly circle the real reasons they are there.
At one point Emma is asked about her family.
Interviewer: What do you like about your mother?
Emma: I like that she does some really nice things for me, like packing and making my lunch, and Dad, he helps me when I’m sick.
Interviewer: What else do you like about your mother?
Emma: She is kind.
Interviewer: Is there anything you don’t like about your mother?
That day, Emma told the police officer and the social worker about “khatna”, a ceremony which girls from the Dawoodi Bohra community typically undergo when they are seven years old. A type of “coming of age” ceremony, to put it in clumsy western terms.
The trial centred around exactly what happened to Emma and her younger sister, who has a cognitive disability, during their khatna ceremonies.
That these girls had taken part in the ceremonies, that they had lay on a bed naked from the waist down during them, that other older women, such as their mother and paternal grandmother, were in the room reciting prayers, these were facts that were not disputed.
remy hair extensionsThat the girls were touched on the genitals by an older woman, known in the trial as KM, was not disputed. What KM did to their genitals with what she described as “forceps” and Emma described as a silver tool “a bit like a scissor” was what the verdict hinged on.
KM said she simply “touched” the genitals of the girls in a “symbolic” part of the ceremony. The prosecution argued the girls had been cut and a medical examination by a doctor could not determine what happened either way, though type one or type four FGM was not ruled out.
I’m not used to talking about it because my mum tells me not to go around telling everyone that much
Emma's response to being asked about Khatna
KM was in the stand along with the girls’ mother for the duration of the case, tried alongside a senior clergy in the Dawoodi Bohra Shia Muslim community, Shabbir Mohammedbhai Vaziri, who was accused of being an accessory after the fact by trying to help the women cover up the mutilation inflicted on the two young girls.
KM, 72, would come into court each day with the girls’ mother, Tanya*, 38, each dressed in the traditional rita, a long cotton dress and head covering. Leaning on a walking stick as well as other people to help her in and out of the courtroom, KM would sometimes have to leave abruptly, her blood sugar level crashing due to her diabetes.
Emma gave her evidence in the first week. Peering into the courtroom via a video link, the small girl leaned into the camera, eager to please, likely eager for it to be over. Her long dark hair was pulled back from her face and she wore a simple T-shirt.
How much she knew about why exactly she was there or what the potential consequences could be for her family was unclear. Emma answered the first few questions in a voice that was clear, confident, considered. When the barrister cross-examining her, Stuart Bouveng, commented that she was embarrassed to be asked about her private parts, Emma agreed emphatically. Asked if she would still answer his questions, she responded: “the best that I am able”.
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Emma wanted to get every question an adult asked her correct, whether it was her timetable or exactly what she had to drink after her khatna ceremony (lemonade). She was bright and bubbly, and it almost shone out of every pore that this was a very loved little girl.
But answering questions about khatna in the video of her 2012 police interview, which was played to the court, Emma’s entire face drooped, along with her body, as her shoulders hunched down. “I don’t really want to talk about that,” she said.
When first asked if she could explain what khatna was, she said: “Not very much because I’m not used to talking about it because my mum tells me not to go around telling everyone that much.”
Tanya, who sat halfway between serene and expressionless throughout most of the trial, visibly winced during her daughter’s evidence. When the police interview started playing and Emma spoke of her love of arts and craft, Tanya bowed her head and put her face in her arm.
As Emma talked about what she liked about her mother, Tanya covered her face with her hands and KM put a comforting hand on her arm.
perruques cheveux naturelsThe jury was made up of six men and six women. Three looked as though they could be parents and only two looked like they did not have a Caucasian background. Most would not have passed for older than 30.
The way the supreme court is laid out at the old building on King Street, Sydney, has everyone more or less sitting on top of each other. For nine weeks, the jury sat facing the table of barristers. If one of the jury members in the first row had stood up and reached across the jury box they would have almost been able to touch the outstretched arm of one of the defence team.
The crown prosecutor was Nanette Williams. Two women prosecuted the case and two men defended it. Williams was often asked by the judge what the point of her questioning was or told that she was being repetitive. She was rarely flustered, but did get frustrated. She said some people were not telling the whole truth, or even part of the truth, and her voice would grow accusatory as she prodded them a bit harder.
She was up against Robert Sutherland SC and Bouveng. Sutherland was easily the most at ease in the courtroom, the most cool-headed of the three. He was representing Tanya and Vaziri. Bouveng was conversational in his statements to the jury.
While Williams had used her opening address to lay out the complexities of the case, Bouveng spelled it out to the jury as if they were high schoolers. All they needed to decide, he told them, was that the girls had indeed been cut.
Which seemed a simple enough task.
Emma told the court she “imagined she was a princess in a garden” as KM cut her clitoris with a steel instrument. She had her eyes closed during the mutilation, though she could describe what she saw KM holding in her hand beforehand. When asked by the judge, she obediently drew it for the court.
It looked like a pair of scissors but with just one handle.
Caroline’s evidence was less emphatic. She has learning difficulties but is able to function in a mainstream school with some assistance. When it came to the khatna ceremony, there was little she could properly recall.
She also gave evidence via video link. She spoke so softly you could hear the room straining to hear her. She swung nervously on the chair, from side to side. While Emma seemed almost adult, Caroline was all child.
When the oath was read out to her and she was asked if she agreed to it, Caroline just stared straight ahead. After some prodding she was told to say “I do”, which she obediently did. An objection was swift – the child obviously did not understand what she was saying, Bouveng argued.
The judge considered for a few moments and then decided she was freaked out by the whole setting – the formality and the wigs probably adding to how off-kilter she felt. Johnson took off his wig, trying to appear more normal. A court reporter muttered that she had never seen a judge do that before.
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“Caroline?” he said. “Do you promise to tell the truth?”
Caroline responded with a finger in her mouth: “Yes.”
perruques cheveuxHer police interview from 2012 was played. In it she was asked what her mum’s name was. “Mummy,” she responded.
Much of Caroline’s evidence relied on the police interview, as in court most of her answers were that she did not know, was not sure, could not remember. Even the police interview evidence was mostly monosyllabic.
Interviewer: I heard someone came to your house for something special, can you tell me about it?
Interviewer: You don’t know or you don’t want to talk about?
Caroline: Don’t know.
After some discussion about khatna and what Caroline remembered of lying on a bed at her house while her sister watched a movie downstairs, she was asked what she felt during the ceremony.
Caroline: In the bottom.
Interviewer: Do you still feel the hurting now?
During a break, court reporters huddled out on the steps talking about the two girls. Where traumatised victims had been expected, they had seen thriving young children. Thriving, loved, young children who could not think of a single thing when asked what they did not like about their mum or dad, but who had one thing they did not want to talk about.
“She’s gorgeous! Did you hear how clever she was?”
“She used words I would never use”
“They’re still living with their mum aren’t they?”
“She must be a good mum,” and then a pause. “Most of the time.”
Medical evidence presented to the courtroom was inconclusive. Dr Susan Marks, a paediatrician and head of the child protection unit at Westmead Children’s hospital, examined both the girls and said it was possible they could have been cut or even had part of their clitorises removed.
It is allowing the skin to sniff the steel
KM's explanation of khatna during the trial
The injury had healed with no obvious scarring to either. The crown prosecutor later explained to the court this was because KM had perfected a technique that left no scarring.
When KM took the stand, in the final stages of the trial, she was defiant. Every accusation, every suggestion that she had mutilated the two young girls was met with frustrated proclamations of innocence.
At the beginning of her evidence, which ran for days, she waffled, a sweet old lady telling the love story of her second marriage after the disastrous end of her first.
“I worked two jobs to support children in university and the only time I had time [and money] for myself was $3 on a Sunday when I went to to Park Royal for half the day and had a cup of coffee and listened to music,” she said.
KM was reminded by the judge to keep her answers to simple questions short.
In the witness box she was animated, eager to tell stories from long ago, from becoming a nurse in England (where she hated the weather) to her immigration to Australia in 1997. When KM sat in the dock, as the accused, she rarely showed expression.
lace front wigsWhat had she done to those two little girls? Symbolic khatna, was her answer.
“It is allowing the skin to sniff the steel,” she said. A simple light touch with steel forceps on the genitalia.
There were other witnesses in the room but none could – or would – say exactly what happened. Alexandra, the girls’ grandmother, was present at both of the girls’ ceremonies.
Entering court slowly, she made sure to remind the court of her age at every opportunity.
Speaking through an interpreter when gaps in her testimony were pointed out by Williams she would say “I am not able to remember anything after so many years” or “I can’t remember everything because I’m not able to remember all, my age is 80.”
Alexandra told the court she could not say exactly what had happened to the girls’ genitals in each ceremony as she had been too busy praying from the Qur’an.
But it was not just the girls’ word against what the adults said happened. It was their own word against themselves. Police had bugged phones, bugged cars and even bugged the waiting room where the parents met after their initial police interviews.
Excerpts played in court revealed the “Africa checking story”, a plan hatched to say part of the ceremony involved “checking” the girls to make sure they had not been mutilated in Africa. Those involved admitted to hatching the plan and that it was a lie in court, but maintained the girls had not been cut.
In a 2012 phone conversation between Tanya and the woman at whose house the first mutilation took place, they could be heard complaining about the FGM laws in New South Wales.
Tanya told the woman the girls had been checked by a gynaecologist – they spoke in Punjabi, and the court was provided with an English translation.
“I believe that it is not visible, they couldn’t even see it, however I think that matter is not going to finish here,” Tanya said.
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The older woman then said: “I was talking with [someone] about how funny it is, look at body piercing where it is.”
Tanya: “Ha ha, that no problem.”
Other woman: “No problem about it, ridiculous laws they have.”
After almost nine weeks of evidence, it took the jury just a day to decide they believed the girls. Their mother, KM and Vaziri were found guilty on every count. When the forewoman read out the verdict, Tanya and KM were stoic in the dock.
KM stared at the judge and then straight ahead. Tanya looked down the entire time and her face did not reveal how she felt.
The charges carry a maximum sentence of seven years in jail. They will learn their sentence on 5 February.
• Names have been changed.