New York Female Genital Mutilation
Under the New York Penal Code you have committed the crime of female genital mutilation if you circumcise, excise or infibulate any part of the labia or clitoris of a child who is under 18 years old. You will also face this charge if you are a parent or guardian of a child under the age of 18 years old and you consent to the circumcision, excision or infibulation of any part of her labia or clitoris. However, if you are a licensed medical practitioner or midwife and you perform an action that would otherwise be considered female genital mutilation, you would have a defense to the charge. While some view female circumcision, excision or infibulation as a cultural rite, under the New York Penal Code female genital mutilation is considered a sex crime and is a class E felony. If you are convicted of female genital mutilation you could be sentenced to up to 4 years in prison. If you are arrested and charged with female genital mutilation, it is important to immediately contact an experienced New York sex crime lawyer who is familiar with New York criminal courts and who will aggressively defend you against the charges. The attorneys at the Law Offices of Stephen Bilkis & Associates have decades of experience representing clients who have been charged with sex crimes and other serious crimes such as domestic violence and drug crimes. We will review the facts of your case and come up with a defense designed to produce the best results for your case. Contact us to discuss your case.Female genital mutilation defined
Circumcision, excision, and infibulation are all terms that refer to cutting off or modifying all or part of the external female genitalia, or closing the vagina. Most people associate circumcision with a procedure that is often performed on baby boys to remove the penile foreskin. However, in women and girls circumcision is the partial or total removal of the clitoris. Excision is the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora. Infibulation involves the removal of all external genitalia and the stitching together of the two sides of the vulva.
In some cultures female genital mutilation is performed on young girls to prevent sexual activity in order to ensure that the child remains a virgin until marriage. However, female genital mutilation is considered to be extremely harmful to a girl's physical and mental health. The procedure itself can be painful and traumatic as circumcisions, excisions and infibulations are often performed without anesthesia and without antiseptics.Arrest and arraignment
If you are accused of female genital mutilation a police officer will arrest you and take you into custody, or the officer may issue you a Desk Appearance Ticket (DAT). If you do not have a prior criminal record and where the charge is a violation or misdemeanor, the arresting officer has the discretion to either take you into custody, or issue you a DAT. DATs are typically not issued for felonies, but occasionally a DAT will be given if the crime is a class E felony. The advantage of a DAT is that you will not be immediately taken into custody, and you will not have to immediately spend hours and hours in a jail cell. Instead you will be issued a ticket that will state that you have been charged with female genital mutilation, and when and where you must appear in court for your arraignment. It is critical that you appear in court at the stated date and time. If you fail to appear the judge will issue a warrant for your arrest.
The arraignment is the court hearing where you are formally charged. Even if you are arrested on a charge of female genital mutilation, it is possible that the prosecutor will add additional criminal charges. For example, the prosecutor may also charge you with endangering the welfare of a child. N.Y. Pen. Law § 260.10. In addition, you may face a federal charge of female genital mutilation. 18 U.S.C § 116. The federal statute is substantially the same as the New York statute.
The next step in the arraignment hearing is the issue of bail. It is possible that the judge will set bail, release you on your own recognizance, or decide that you should be held without bail. You will then learn when you must next appear in court. It is critical for you to be present at each court date. If you are not, then the judge will issue a bench warrant for your arrest.
Between the time of your arraignment and the actual trial, you may be able to reach a plea agreement with the prosecutor. This may result in some of the charges being dismissed or reduced. If a plea agreement is reached, then a trial will not be necessary, of if the plea happens during the trial, the trial will not proceed to verdict.Defenses and non-defenses
A defense to a female genital mutilation charge is medical necessity. N.Y. Pen. Law § 130.85(2). If you are a medical professional, a midwife, or are training to become a midwife, and there is a medical reason as opposed to a cultural reason for performing the circumcision, excision or infibulation, then you have a statutory defense to a female genital mutilation charge. In addition to medical necessity key to this defense is that you must be a licensed medical professional or a midwife. Furthermore, the statute specifically provides that it is not a defense to a charge of female genital mutilation that the procedure was performed as a custom or ritual.
An important element of the charge of female genital mutilation is that the victim must be under the age of 18. However, knowledge that the victim was under 18 years old is not an element of this crime. Thus, it is not a defense that you did not know that the victim was under 18 years old. N.Y. Pen. Law § 15.20. Furthermore, consent is not a defense. In other words, neither a girl who is under 18 years old or her parents or guardians can consent to the procedure. Parents or guardians who give permission for circumcision, excision or infibulation can be charged with female genital mutilation in the same way that that the person who performed the circumcision, excision or infibulation can be charged.Sentencing
Prison. Because female genital mutilation is a class E felony the possible sentence is up to 4 years in prison. There is no minimum sentence for first time offenders. Thus, it is possible that if convicted you will be sentenced to significantly less time than 4 years in prison. You may even be sentenced to probation. However, if you already have a felony conviction you will face a minimum sentenced of 3 years in prison. If in addition to female genital mutilation you are charged and convicted of another crime such as endangering the welfare of a child, your sentence may be harsher than it otherwise might be. If you are prosecuted under the federal female genital mutilation statute you may face a sentence in a federal facility.
Probation. While being sentenced to probation is better than being sentenced to jail or prison, it is not without disadvantages. Probation comes with many restrictions. With probation comes a set of rules that you are required to follow. These rules may include: you must not commit a crime, you must maintain a job, you must agree to random drug testing, you must refrain from associating with disreputable people, you must agree to psychological testing, you must refrain from possessing firearms, you cannot leave New York without permission, you must stick to a curfew, and you must regularly check in with your probation officer. If you break any of the conditions of your probation your probation officer may violate you. This means that you will have to appear in court before a judge who will make a determination as to whether or not you did violate your probation. If the judge finds that you did indeed violation your probation, the judge may order you to jail, or the judge may modify the terms of your probation. Because female genital mutilation is a felony and a sex crime, if you are sentenced to probation it will be for a term of 10 years.
Criminal record and sex offender registration. Whether you are sentenced to jail, prison, probation or some other punishment, after you serve your sentence, you will have a criminal record that includes a felony conviction of a sex crime. This may cause you and your family financial difficulties as it may make it challenging for you to find a job. Nowadays most employers will perform a criminal background check before agreeing to hire an applicant. Many will be reluctant to hire you as they may not be comfortable hiring someone with a criminal record, particularly if your record includes a felony. You cannot be hired as a teacher if you have a felony conviction. A felony conviction may also make it difficult to get a license to practice law or to practice medicine. Even candidates who apply for jobs at fast food restaurants are sometimes subject to criminal background checks, as are some who apply to be volunteers. If you already are employed at the time of your conviction, should your employer learn that you have been convicted of a felony, you may lose your job.
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The consequences of being charged or convicted of female genital mutilation are serious, affecting your future and the futures of your family. Even if you were participating in a cultural rite of passage you may be at risk for a felony conviction. For this reason it is important to immediately contact experienced representation as soon as you are accused of female genital mutilation or any other sex crime. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who are accused of various sex crimes, such as rape, forcible touching, sexual misconduct, criminal sexual act, sexual abuse, aggravated sexual abuse, course of sexual conduct against child, predatory sexual assault against a child, and facilitating a sexual offense with a controlled substance. Furthermore, we are familiar with New York criminal court procedure from arrest to the end of the criminal process. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens , Staten Island, Suffolk County and Westchester County.