Legislating Change? Responses to Criminalizing Female Genital Cutting in Senegal

Legislating Change? Responses to CriminalizingFemale Genital Cutting in Senegal

Bettina Shell-Duncan Katherine WanderYlva Hernlund Amadou Moreau

Although the international community has recently promoted legislation as animportant reform strategy for ending female genital cutting (FGC), there existdivergent views on its potential effects. Supporters argue that legal prohibitionof FGC has a general deterrent effect, while others argue legislation can beperceived as coercive, and derail local efforts to end the practice. This studyexamines the range of responses observed in rural Senegal, where a 1999anti-FGC law was imposed on communities in which the practice was beingactively contested and targeted for elimination. Drawing on data from amixed-methods study, we analyze responses in relation to two leading theorieson social regulation, the law and economics and law and society paradigms,which make divergent predictions on the interplay between social norms andlegal norms. Among supporters of FGC, legal norms ran counter to socialnorms, and did little to deter the practice, and in some instances incited

This research was supported by the National Science Foundation (grant number0313503) and by the UNDP/UNFPA/WHO/World Bank Special Programme on Research,Development, and Research Training in Human Reproduction. Research affiliation wasprovided by Dr. C. Niang through Université Cheikh Anta Diop, and by Dr. A. B. Senghorethrough Gambia College, Brikama Campus. Ethics approval for this study was obtainedfrom The Gambia College in Brikama, Université Cheikh Anta Diop, University of Wash-ington, and the World Health Organization in Geneva. Membership of our advisorycommittee included representatives from The Women’s Bureau, The Gambian Bureau ofStatistics, Worldview The Gambia, Gambia College-Brikama Campus, TANGO (an associa-tion of nongovernmental organizations), UNDP, UNICEF, and The Gambia WHO. InSenegal, we received advice and input from numerous representatives from The Popula-tion Council, Tostan, and the Senegal WHO office. Cori Mar, from the University ofWashington Center for the Study of Demography and Ecology, provided valuable statisticaladvice. Statistical support and grant administration through the Center for the Study ofDemography and Ecology was supported by the Eunice Kennedy Shriver National Instituteof Health and Human Development award number 5R24HD042828. We thank MollyMelching and staff at Tostan for providing us with helpful information about Tostan activitysites. We would like to acknowledge the important contributions of our hardworking anddedicated field team in Senegal and The Gambia: Alhagy Bah, Sally Bojang, Modou Dem,Ebrima Jallow, Serreh Jebang, and Naisatou Konteh. Furthermore, we wish to thank ourresearch assistants from the University of Washington, Ratna Maya Magarati and AnthonyTessandori, for their tremendous help in data management and preliminary data analysis.We are indebted to Dr. Fuambai Ahmadu for her advice and logistical support in initiatingdata collection. And finally, we extend thanks to Dr. Saida Hodžic, Dr. Gerry Mackie, andHon. Joel Ngugi for valuable comments on early drafts of this article.

Please direct all correspondence to Bettina Shell-Duncan, Department of Anthropology,University of Washington, Box 353100, Seattle, WA 98195-3100, USA; e-mail: [email protected].

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Law & Society Review, Volume 47, Number 4 (2013)© 2013 Law and Society Association. All rights reserved.

reactance or drove the practice underground. Conversely, where FGC wasbeing contested, legislation served to strengthen the stance of those contem-plating or favoring abandonment. We conclude that legislation can comple-ment other reform strategies by creating an “enabling environment” thatsupports those who have or wish to abandon FGC.

At the United Nations (UN) Fourth World Conference onWomen held in Beijing in 1995, then U.S. First Lady HillaryRodham Clinton declared in a keynote address that, “it is a viola-tion of human rights when young girls are brutalized by the painfuland degrading practice of genital mutilation” (http://www.youtube.com/watch?v=GkLStUgkeJ4).1 Mrs. Clinton repeated her stancebefore several international bodies, and in April 1998 she traveledto Senegal to praise men and women who “come together to standagainst and speak out against a key ancient custom” (quoted inHecht 1999). Ten months later, in the wake of active debate amongSenegal’s parliamentarians, legal scholars, religious leaders, as wellas some local anti-FGM (female genital mutilation) activists andprogram leaders, parliament enacted legislation that makes it acrime to carry out “female genital mutilation” or to encourageanybody else to do so.2 International media drew attention to thefact that this law was passed just one month before the release of theAmerican State Department’s Annual Report on Human Rights(e.g., Economist 1999; Hecht 1999), arguing that this report is usedas a guide for Congress and U.S. agencies in allocating foreignfinancial assistance. Based on this, the article in the Economist con-cluded that Senegal’s government, which receives substantial aid

1 Mrs. Clinton was referring specifically to female genital mutilation (FGM), alsoknown as female circumcision or female genital cutting (FGC). These terms are often usedto describe a variety of procedures for altering the external female genitalia. The choice ofterminology conveys important connotations, and has therefore been the subject ofongoing debate. Many commentators initially used the term “female circumcision” as itreflects the fact that in some societies genital cutting is incorporated into both male andfemale initiation rites, and in some local languages is described by the same term. In the1970s, the term “female genital mutilation” was advanced by activists who felt that the term“female circumcision” deemphasized the severity of certain forms of the practice, andimplied, incorrectly, that all forms are analogous to male circumcision. Some African groupsobjected to the use of the term “mutilation” since it is judgmental and derogatory, andinstead advanced the more neutral term “female genital cutting” (Eliah 1996). UNICEFand UNFPA currently favor a hybrid term, female genital mutilation/cutting or FGM/C, tocapture the significance of the term “mutilation” at the policy level and, at the same time,when working with practicing communities, recognizing the importance of employingnonjudgmental terminology to avoid alienation (UNICEF 2005). Because we are discussingboth policy and cultural context, we have also chosen to use the hybrid term FGM/C, anduse the term FGM when discussing activism and legislation.

2 Article 299A of Senegal’s penal code.

804 Criminalizing FGC

from the United States, implemented the law “only to pleaseAmerican sensitivities” (1999). The passage of the Senegalese anti-FGM law was thus portrayed as an imposition of Western values onan African nation, overlooking the long history of debate on femalegenital mutilation/cutting (FGM/C) among Senegalese intellectualsand the leadership of Senegal in the international human rightsmovement.3

Although media reports failed to highlight the internaldebates in Senegalese society, they captured the centerpiece ofthese debates by posing the question, “Is it a crime or is itculture?” (Economist 1999). The enactment of the law did, in fact,create a formal legal system for regulating FGM/C that was at oddswith the cultural values in a minority of Senegalese communitieswith long-standing histories of practicing FGM/C. In doing so,Senegal joined a growing number of African nations that haveadopted legislation as a reform strategy for ending FGM/C. In thebackground of these events lies an unanswered question: Islegislation an effective tool for ending the practice of FGM/C?Divergent views have been forwarded. On one hand, some com-mentators and activists believe that legal prohibition will accelerateabandonment of the practice, while others argue that such a top-down approach can be perceived as coercive and may impede orderail local efforts to end the practice. The United Nations Chil-dren’s Fund (UNICEF) has emphasized that there has been “littleresearch on the process and type of legislative reform needed indifferent contexts with varying degrees of social acceptance of thepractice” (2010: 3). They add that the “role that legislation playsin promoting behavior change in FGM/C is an area that is par-ticularly complex, under-researched, and not fully understood”(UNICEF 2010: 3).

This article explores the range of responses that have beenobserved as legal measures were introduced in a rural region ofSenegal. This case study draws on data from a mixed-methodsstudy in Senegal to explore how anti-FGM legislation, when super-imposed on communities in which the practice is already beingcontested and targeted for elimination, interacts with an ongoingprocess of change in both expected and unanticipated ways. Morebroadly, we investigate broader theoretical debates on the nature ofsocial regulation and the influence of formal legal mechanisms onthe process of behavior change.

3 Since the early 1990s, Senegalese leaders have held prominent positions in interna-tional human rights work, including the Chair of the United Nations Commission onHuman Rights (Kéba Mbaye), President of the Geneva-based Commission of Jurists(Adama Dieng), Head of the United Nations Center for Human Rights (Ibrahim Fall), andhead of Amnesty International (Pierre Sané) (Welch Jr. 1995).

Shell-Duncan, Wander, Hernlund, & Moreau 805

Legislative Approaches

Currently, 24 African nations where FGM/C is practiced haveprohibited it by law or constitutional decree (Table 1). Theseinclude countries where FGM/C is widely practiced (e.g., Somalia,Guinea, Egypt, and Djibouti), countries where the prevalence ofFGM/C is low (e.g., Uganda, Niger), as well as two countries thatdid not use the Demographic and Health Survey (DHS) module onFGM/C because the practice is believed to occur in less than onepercent of the female population (South Africa, Zambia). The mostrecent ban has been introduced in Somalia, where the 2012Provisional Constitution prohibits “circumcision of girls.” With theexception of the Central African Republic and Guinea, where banson FGM/C were instituted in the 1960s, the process of legal reformbegan to take hold in African nations in the 1990s. This occurredin the context in which international opposition to FGM/C wasbeing recast not only as a health issue, but as a human rightsissue (Boyle & Preves 2000; Shell-Duncan 2008). As internationalconsensus forged around framing FGM/C as a human rights viola-tion, protection from FGM/C became understood as a right tobe enforced, granted, and implemented by the state. Thus, legalstrategies received new prominence, elevated over nonstate solu-tions (Shell-Duncan 2008). At the International Conference onPopulation and Development held in Cairo in 1994, strong state-ments were issued calling for governments to enact legislationspecifically banning FGM/C, and to enforce such legislation (Boyle& Preves 2000). The World Health Organization (WHO) as wellstated unequivocally that “protecting the rights of each and everycitizen is the responsibility of national governments,” and specifi-cally urged that “governments must enact and/or use anti-FGMlaws to protect girls” (WHO 1999: 14–15).

In this context, legislative reform measures have been adoptedby a growing number of nation states, but vary in terms of restric-tion. In Mauritania and Tanzania (as in some Western countries,including the Canada and the United States) FGM/C is illegal whenperformed on minors. By contrast, laws banning FGM/C at all ageshave been passed in the majority of African countries. This reflectsthe view that adult women are not in a position to provide consentbecause of cultural pressures to undergo FGM/C, and the lack ofeconomic and legal autonomy. The laws vary substantially in defin-ing who is subject to punishment, and on the severity of penaltiesimposed. The criminal law enacted in Ghana imposes punishmenton anyone who performs FGM/C, whereas in countries such asEthiopia, Nigeria, Senegal, Togo, Uganda, and Zambia, those whoparticipate in or commission the procedure are held criminallyliable. In several countries (Benin, Burkina Faso, Côte d’Ivoire,


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03:

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port

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epre

ssio

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italM

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“All

form

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edby

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ited.

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ical

lyne

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ary

proc

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ed.

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pers

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ms

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grity

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ical

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grity

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:O

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No.

66/1

6of

1966

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min

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wen

acte

din

1996

“[T

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five

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fine

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Cha

d(4

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DH

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duct

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2003

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min

alle

gisl

atio

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opte

din

1998

;L

oiN

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-757

,on

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ibiti

onof

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ous

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ence

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en

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utila

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ityof

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nsiti

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ical

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1995

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ded

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ided

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amen

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Con

tinue

d

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ofL

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08;

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96am

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126

of20

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teri

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utila

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not

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not

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prem

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ent

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trea

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02D

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min

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wad

opte

din

2007

;Pr

ocla

mat

ion

158/

2007

[APr

ocla

mat

ion

toA

bolis

hFe

mal

eC

ircu

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sion

]

“Fem

ale

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,”m

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ive

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udin

gni

ckin

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rfo

rmof

fem

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rs,o

ran

yone

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and

fails

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arn

the

prop

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ities

.

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ison

men

tfo

rsi

xm

onth

sto

one

year

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circ

umci

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3,00

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rcum

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ris

am

edic

alpr

ofes

sion

al,h

ighe

rpe

nalty

and

poss

ibili

tyof

susp

endi

nglic

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upto

two

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s;fin

eup

to1,

000

nakf

afo

rth

ose

who

dono

tre

port

fem

ale

circ

umci

sion

.

Eth

iopi

a(7

4%,

2005

DH

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onst

itutio

nalp

rovi

sion

adop

ted

in19

94on

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mfu

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s;”

Cri

min

alla

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opte

din

2004

Con

stitu

tion:

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enha

veth

eri

ght

topr

otec

tion

byth

est

ate

from

harm

ful

cust

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Law

s,cu

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san

dpr

actic

esth

atop

pres

sw

omen

orca

use

bodi

lyor

men

tal

harm

toth

emar

epr

ohib

ited.

”C

rim

inal

code

:“W

hoev

erci

rcum

cise

sa

wom

anof

any

age”

viol

ates

the

law

.“W

hoev

erin

fibul

ates

the

geni

talia

ofa

wom

an”

also

viol

ates

the

law

.

Cri

min

alco

de:

Any

one

who

perf

orm

sth

epr

ohib

ited

acts

of“c

ircu

mci

sion

”an

d“i

nfibu

latio

n,”

and

“[a]

pare

ntor

any

othe

rpe

rson

who

part

icip

ates

inth

eco

mm

issi

onof

one

ofth

ecr

imes

spec

ified

inth

isC

hapt

er[o

nH

arm

fulT

radi

tiona

lPr

actic

es].”

Als

opu

nish

able

is“[

a]ny

pers

onw

hopu

blic

lyor

othe

rwis

ein

cite

sor

prov

okes

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her

todi

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ard

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prov

isio

nof

this

Cod

epr

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tiona

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d,or

take

spa

rtin

such

am

ovem

ent,

orsu

bscr

ibes

toits

sche

mes

.”

For

circ

umci

sion

:si

mpl

eim

pris

onm

ent

for

not

less

than

thre

em

oths

,or

fine

not

less

than

500

Bir

r.Fo

rin

fibul

atio

n:ri

goro

usim

pris

onm

ent

from

thre

eto

five

year

s.W

here

inju

ryto

body

orhe

alth

has

resu

lted

from

infib

ulat

ion,

the

puni

shm

ent

is“r

igor

ous

impr

ison

men

tfr

om5

to10

year

s,”

unle

ssa

rele

vant

prov

isio

nof

the

Cri

min

alC

ode

prov

ides

ahi

gher

pena

lty.

For

inci

tem

ent

orpr

ovoc

atio

n:si

mpl

eim

pris

onm

ent

for

thre

em

onth

s,or

fine

of50

0B

irr,

orbo

th.


Gha

na(4

5%,

2006

MIC

S)C

onst

itutio

nala

men

dmen

tad

opte

din

1992

;C

rim

inal

law

adop

ted

in19

94;

amen

ded

in20

07

Con

stitu

tion:

“All

cust

omar

ypr

actic

esw

hich

dehu

man

ize

orar

ein

juri

ous

toth

eph

ysic

alan

dm

enta

lwel

l-bei

ngof

the

pers

onar

epr

ohib

ited.

”C

rim

inal

code

:“W

hoev

erex

cise

s,in

fibul

ates

orot

herw

ise

mut

ilate

sth

ew

hole

oran

ypa

rtof

the

labi

am

inor

a,la

bia

maj

ora

and

the

clito

ris

ofan

othe

rpe

rson

”vi

olat

esth

ela

w.T

o“e

xcis

e”is

to“r

emov

eth

epr

epuc

e,th

ecl

itori

san

dal

lor

part

ofth

ela

bia

min

ora.

”“I

nfibu

late

”in

clud

esex

cisi

onan

dre

mov

alof

the

labi

am

ajor

a.

Any

prac

titio

ner;

anyo

new

ho“p

artic

ipat

esin

oris

conc

erne

dw

itha

ritu

alor

cust

omar

yac

tivity

that

subj

ects

ape

rson

tofe

mal

ege

nita

lmut

ilatio

n.”

Impr

ison

men

tfo

ra

term

ofno

tle

ssth

anfiv

eye

ars

and

not

mor

eth

an10

year

s.

Gui

nea

(96%

,20

05D

HS)

Exi

stin

gPe

nalC

ode

prov

isio

nad

opte

din

1965

;G

ener

alpr

ovis

ion

inth

ere

prod

uctiv

ehe

alth

law

adop

ted

in20

00;

Cod

eof

Med

ical

Eth

ics

adop

ted

in19

96

Pena

lcod

e:“c

astr

atio

n”in

clud

ed“a

blat

ion

orth

em

utila

tion

ofth

ege

nita

lorg

ans

ofei

ther

man

orw

oman

.”R

epro

duct

ive

heal

thla

w:

Eve

rype

rson

has

the

righ

tno

tto

besu

bjec

ted

toto

rtur

eor

crue

lor

degr

adin

gtr

eatm

ent,

“par

ticul

arly

one

one’

sre

prod

uctiv

eor

gans

.”M

edic

alco

deof

ethi

cs:

“No

mut

ilatin

gin

terv

entio

nm

aybe

perf

orm

edw

ithou

tse

riou

sm

edic

algr

ound

san

d,ex

pect

inth

eev

ent

ofem

erge

ncy

orim

poss

ibili

ty,w

ithou

tin

form

ing

the

pers

onco

ncer

ned

and

obta

inin

ghi

sco

nsen

t.”

Pena

lcod

e:“a

nype

rson

guilt

yof

the

crim

e.”

Pena

lcod

e:ha

rdla

bor

for

life,

or,i

fcu

ttin

gre

sults

inde

ath,

ade

ath

sent

ence

.

Gui

nea

Bis

sau

(45%

,200

6M

ICS)

Cri

min

alla

wen

acte

din

2011

Proh

ibits

the

perf

orm

ance

ofFG

M/C

“in

itsva

riou

sfo

rms

(clit

orid

ecto

my,

exci

sion

,in

cisi

on,i

nfibu

latio

n)w

ithor

with

out

the

cons

ent

ofth

evi

ctim

.”

Any

one

who

perf

orm

sFG

Mfo

rno

nmed

ical

reas

ons;

pare

nts

orgu

ardi

ans

who

fail

topr

even

tFG

M;

“tho

sew

hofa

cilit

ate,

invi

te,

enco

urag

eor

cont

ribu

tein

som

ew

ay”

toth

epr

actic

eof

FGM

.

Impr

ison

men

tfo

rtw

oto

six

year

sfo

rpe

rfor

min

gFG

M,t

hree

toni

neye

ars

ifpe

rfor

med

ona

min

or,a

nd4–

10ye

ars

ifit

resu

ltsin

deat

h;pa

rent

sw

hofa

ilto

prev

ent

FGM

can

beim

pris

oned

for

one

tofiv

eye

ars.


Tabl

e1.

Con

tinue

d

Cou

ntry

(Pre

vale

nce)

Type

ofL

awW

hat

isPr

ohib

ited

Who

isSu

bjec

tto

Puni

shm

ent

Pena

lty

Ken

ya(2

7%,

2008

–200

9D

HS)

Chi

ldre

n’s

Act

adop

ted

in20

01Pr

ohib

ition

ofFe

mal

eG

enita

lM

utila

tion

Act

adop

ted

in20

11

Chi

ldre

n’s

Act

:Fe

mal

eci

rcum

cisi

onm

eans

the

“cut

ting

and

rem

oval

ofpa

rtor

allo

fth

efe

mal

ege

nita

liaan

din

clud

esth

epr

actic

eof

clito

ride

ctom

y,ex

cisi

on,

infib

ulat

ion

orot

her

prac

tices

invo

lvin

gth

ere

mov

alof

part

,or

ofth

een

tire

clito

ris

orla

bia

min

ora

ofa

fem

ale

pers

on”

unde

rth

eag

eof

18.

Proh

ibiti

onof

Fem

ale

Gen

italM

utila

tion

law

:ai

ding

,abe

ttin

g,or

coun

selin

ga

pers

onw

hope

rfor

ms

FGM

;pr

ocur

ing

ape

rson

tope

rfor

mFG

M;

allo

win

gth

eus

eof

one’

spr

emis

esfo

rpe

rfor

min

gFG

M;

faili

ngto

repo

rtof

fens

esun

der

the

bill;

the

use

ofab

usiv

eor

dero

gato

ryla

ngua

geag

ains

tso

meo

new

hoha

sno

tun

derg

one

FGM

.

Chi

ldre

n’s

Act

:“N

ope

rson

shal

lsub

ject

ach

ildto

fem

ale

circ

umci

sion

”Pr

ohib

ition

ofFe

mal

eG

enita

lMut

ilatio

nla

w:

any

pers

onw

hovi

olat

esth

esp

ecifi

edpr

ovis

ions

Chi

ldre

n’s

Act

:Pr

ison

for

am

axim

umof

12m

onth

san

d/or

afin

eof

upto

50,0

00K

Sh.

Proh

ibiti

onof

Fem

ale

Gen

italM

utila

tion

law

:Im

pris

onm

ent

for

upto

seve

nye

ars

ora

fine

of50

0,00

0K

Sh;

life

impr

ison

men

tif

anyo

nepe

rfor

ms

FGM

resu

lting

inde

ath

ofth

evi

ctim

;an

yK

enya

nci

tizen

orre

side

ntw

hovi

olat

esth

isla

wou

tsid

eof

Ken

yais

liabl

eto

pros

ecut

ion

inK

enya

.

Mau

rita

nia

(72%

,20

07M

ICS)

Cri

min

alla

wad

opte

din

2005

Proh

ibits

infib

ulat

ion

oran

yot

her

form

ofm

utila

tion

ofth

ege

nita

lsof

afe

mal

ech

ild.

Any

one

who

harm

sor

atte

mpt

sto

perf

orm

FGM

.Im

pris

onm

ent

for

one

toth

ree

year

san

da

fine

of12

0,00

0ou

guiy

ato

300,

000

ougu

iya;

incr

ease

dpe

nalty

offo

urye

ars

ofim

pris

onm

ent

and

afin

eof

160,

000

ougu

iya

to30

0,00

0ou

guiy

aif

the

offe

nder

isa

med

ical

orpa

ram

edic

alpr

ofes

sion

al.

Nig

er(2

%,2

006

DH

S)C

rim

inal

legi

slat

ion

adop

ted

in20

03A

cts

that

viol

ate

repr

oduc

tive

and

sexu

alhe

alth

,inc

ludi

ngal

lfor

ms

ofvi

olen

ceag

ains

tw

omen

and

child

ren,

and

fem

ale

geni

talm

utila

tion.

Not

spec

ified

Not

spec

ified

Nig

eria

(sev

eral

stat

es)

(26%

,20

10D

HS)

Law

sen

acte

dbe

ginn

ing

in19

99Pr

ohib

itsci

rcum

cisi

on(“

cutt

ing

off

ofth

ecl

itori

sof

afe

mal

e”)

and

geni

talm

utila

tion

(“cu

ttin

g,in

cisi

on,d

amag

e,re

mov

alof

any

oral

lof

the

fem

ale

sex

orga

ns”)

.

Prac

titio

ners

(“an

ype

rson

who

perf

orm

sFG

M”)

;pe

rson

who

offe

rshe

rsel

ffo

rFG

M;

anyo

new

ho“c

oerc

es,e

ntic

es,i

nduc

es”

ape

rson

toun

derg

oFG

M;

apa

rent

orgu

ardi

anw

hoal

low

sit.

For

first

offe

nse,

impr

ison

men

tof

upto

one

year

and/

ora

fine

ofN

50,0

00;

doub

lepe

nalty

for

seco

ndof

fens

e.

Sene

gal(

26%

,20

10D

HS)

Cri

min

alla

wad

opte

din

1999

Proh

ibits

the

viol

atio

nof

“the

inte

grity

ofth

ege

nita

lorg

ans

ofa

fem

ale

pers

onby

tota

lor

part

iala

blat

ion

ofon

eor

seve

ralo

fth

eor

gan’

spa

rts,

byde

sens

itiza

tion

orby

any

othe

rm

eans

.”

Any

one

“who

viol

ates

orat

tem

pts

tovi

olat

e”th

epr

ohib

ition

;an

yone

who

thro

ugh

“gift

s,pr

omis

es,i

nflue

nces

,thr

eats

,in

timid

atio

n,or

abus

eof

auth

ority

orof

pow

er,p

rovo

kes

thes

ese

xual

mut

ilatio

nsor

give

sin

stru

ctio

nsfo

rth

eir

com

mis

sion

.”

Impr

ison

men

tfr

omsi

xm

onth

sto

five

year

s;m

axim

umpe

nalty

for

med

ical

pers

onne

l;w

here

cutt

ing

resu

ltsin

deat

h,pe

nalty

isha

rdla

bor

for

life.


Som

ali(

98%

,20

06M

ICS)

Prov

isio

nalC

onst

itutio

nald

ecre

epa

ssed

in20

12Pr

ohib

its“c

ircu

mci

sion

ofgi

rls.

”N

otsp

ecifi

edN

otsp

ecifi

ed

Sout

hA

fric

aPr

omot

ion

ofE

quity

and

Prev

entio

nof

Unf

air

Dis

crim

inat

ion

Act

,200

0Pr

ohib

its“u

nfai

rdi

scri

min

atio

non

the

grou

ndof

gend

er,i

nclu

ding

...f

emal

ege

nita

lmut

ilatio

n.”

The

Stat

eor

any

pers

onw

hodi

scri

min

ates

.N

otsp

ecifi

ed

Suda

n(t

wo

stat

es)

(89%

,20

06H

HS,

cove

ring

nort

hern

Suda

n)

Stat

eof

Sout

hK

ordo

fan

Prev

entio

nof

Fem

ale

Gen

italM

utila

tion

Act

,200

8St

ate

ofG

adar

ef,2

009

NA

NA

NA

Tanz

ania

(15%

,20

04–2

005

DH

S)C

rim

inal

law

adop

ted

in19

98C

ausi

ng“f

emal

eci

rcum

cisi

onor

proc

ur[in

g]th

atpe

rson

to[b

etr

eate

d]in

am

anne

rlik

ely

toca

use

suffe

ring

orin

jury

tohe

alth

,inc

ludi

ng..

.inju

ryto

...[a

n]or

gan

toth

ebo

dy.”

Any

one

with

cust

ody,

char

geor

care

ofa

pers

onun

der

18w

hoca

uses

proh

ibite

dac

t.Im

pris

onm

ent

for

5–15

year

san

d/or

afin

eof

upto

300,

000

shill

ings

.

Togo

(6%

,200

6M

ICS)

Cri

min

alla

wad

opte

din

1998

All

form

sof

FGM

“und

erst

ood

tom

ean

any

part

ialo

rto

talr

emov

al(a

blat

ion)

ofth

ege

nita

lorg

ans

oflit

tlegi

rls,

youn

ggi

rls,

orw

omen

and/

oran

yot

her

oper

atio

nsaf

fect

ing

thes

eor

gans

,”m

edic

ally

nece

ssar

ypr

oced

ures

excl

uded

.

Any

pers

onw

hopr

actic

esFG

M,w

hate

ver

his

posi

tion,

and

anyo

new

hopa

rtic

ipat

esin

proh

ibite

dac

ts;

“any

one

with

know

ledg

eof

anex

cisi

onal

read

ypl

anne

d,at

tem

pted

orpr

actic

ed,”

who

fails

tote

llau

thor

ities

whe

nde

nunc

iatio

nw

ould

have

prev

ente

dfu

ture

acts

ofFG

M.E

xem

ptio

nfo

rre

lativ

esby

bloo

d/m

arri

age

ofpe

rpet

rato

ror

acco

mpl

ice

(up

tofo

urth

degr

ee).

Impr

ison

men

tfr

omtw

om

onth

sto

five

year

san

d/or

afin

eof

100,

000

fran

csto

1,00

0,00

0fr

ancs

;in

crea

sed

pena

lties

inca

ses

ofre

cidi

vism

and

whe

ncu

ttin

gre

sults

inde

ath.

Uga

nda

(1%

,20

06D

HS)

Chi

ldre

nSt

atut

een

acte

din

1996

Law

bann

ing

FGM

enac

ted

in20

10C

hild

ren

Stat

ute:

“Unl

awfu

lto

subj

ect

ach

ildto

soci

alor

cust

omar

ypr

actic

esth

atar

eha

rmfu

lto

the

child

’she

alth

”20

10ba

n:FG

M.

2010

ban:

Any

one

who

prac

tices

FGM

,and

anyo

new

hopr

ovid

esai

dor

inan

yw

ayta

kes

part

inth

epr

actic

e.A

ggra

vate

dFG

Mde

fined

asca

ses

that

resu

ltin

deat

hor

infe

ctio

nof

the

vict

imw

ithH

IV/A

IDS,

orif

the

offe

nder

isth

epa

rent

orgu

ardi

anor

ahe

alth

care

wor

ker.

Tho

sew

hoai

dor

part

icip

ate

face

impr

ison

men

tfo

rup

to10

year

s.A

ggra

vate

dFG

Mpu

nish

edby

life

impr

ison

men

t.

Zam

bia

Pena

lCod

eA

ct15

enac

ted

in20

05“

‘Har

mfu

ltra

ditio

nalp

ract

ice’

[tha

t]in

clud

es..

.fem

ale

geni

talm

utila

tion.

..or

anin

itiat

ion

cere

mon

yth

atre

sults

inin

jury

,th

etr

ansm

issi

onof

infe

ctio

usor

life

thre

aten

ing

dise

ase,

loss

oflif

eto

ach

ildbu

tdo

esno

tin

clud

eci

rcum

cisi

onon

am

ale

child

.”

Any

pers

onw

hoco

nduc

tsor

caus

edto

beco

nduc

ted

aha

rmfu

ltra

ditio

nalp

ract

ice.

Impr

ison

men

tfo

rno

tle

ssth

an15

year

san

dm

ayin

clud

elif

eim

pris

onm

ent.

DH

S,D

emog

raph

ican

dH

ealth

Surv

ey;

FGM

,fem

ale

geni

talm

utila

tion;

MIC

S,M

ultip

leIn

dica

tor

Clu

ster

Surv

ey;

NA

,not

appl

icab

le.


Eritrea, Ethiopia, Kenya, Togo), fines can be levied not only againstpractitioners of FGM/C, but also anyone knowing about practiceand failing to report it. Mandatory reporting requirements can beproblematic from a legal perspective, particularly when health careworkers have been sought to treat post-FGM/C complications, asthey are also bound by duties to protect patient confidentiality(Katzive 2003). In 2011, Kenya extended the 2001 ban on FGM/Camong minors to apply to adult women, and also added an extra-territoriality clause, extending restrictions to citizens and residentswho commit the crime outside the country’s border. Some legalprovision calls for increased penalties when FGM/C results in death(Benin, Burkina Faso, Côte d’Ivoire, Egypt, Ghana, Uganda), whenperformed by a medical professional (Burkina Faso, Côte d’Ivoire,Eritrea, Kenya, Mauritania, Uganda), or in cases of recidivism(Benin, Nigeria, Togo). FGM/C that results in death is punishableby a life sentence in prison in Kenya and Uganda, and by the deathsentence in Ghana.

In some instances, criminal laws have been intended to belargely symbolic in nature, or to serve as a means of communicatinga new norm that is backed by state support, with the goal ofaffecting behavior “expressively” by what it says, rather than whatit does (sanctions) (McAdams 2000). Educating the public about thenew legal provision may serve this purpose. In most cases, however,the laws are intended to catalyze social change and to provide an“enabling environment” for the abandonment of FGM/C (UNICEF2010). In such cases, proposed legislation must be accompanied bydetailed plans for implementation, enforcement, and monitoring.

Across Africa, even in the presence of specific laws againstFGM/C, enforcement is variable. There have been scattered reportsof prosecution or arrests in cases involving FGM/C in severalAfrican countries, including Burkina Faso, Egypt, Kenya, Ghana,Senegal, and Sierra Leone (UNICEF 2010). Obiora (1997: 357)highlights the fact that “diligent enforcement presupposes theavailability of material resources and cooperative enforcementagents.” The 2004 Tanzania Human Rights report elaborates onthe complex and varied problems that surround enforcement ofthe law: In some cases, police officers were unaware of the law;“victims” were often reluctant to testify against their own familymembers; bribes, in some instances, were purportedly given toleaders to assure freedom from prosecution; court cases often failedto offer an adequate standard of evidence despite having testimonyfrom victims and confessions from parents and circumcisers (U.S.Department of State 2004). Hence, concerns about the broadernegative ramifications of enforcement expressed by Gunning(1992) over two decades ago remain salient: What is the psycho-logical effect on a young, newly cut girl witnessing the arrest of her


parents? What is the financial impact of imposing fines on peoplewho are already poor? Given that women are the prime initiatorsand practitioners of FGM/C, would enforcement lead to the sys-tematic imprisonment of women? Consequently, beyond the ques-tion of whether criminal laws can be used as a tool for endingFGM/C lies the question of whether they should be used to eliminatethe practice. Rahman and Toubia, however, suggest that the debateover whether legislation should be used as a tool to combat FGM/Cis moot, arguing that “the fact that many Africans and Westerncultures have recently enacted laws prohibiting the practice createsa de facto role for legislation, the effects of which should be closelyobserved and documented in the coming years” (2000: xiv). Thevaried effects of enacting specific anti-FGM legislation at the com-munity level are, however, poorly understood. We examine this,drawing on research on behavior change with respect to FGM/C inSenegal, to test predictions from two leading theories on socialregulation.

Legal Theories on Social Regulation

Legal theories of social control are often described as fallingpredominantly into one of two schools of thought, law and econom-ics and law and society, each of which examine the interplaybetween informal local social control and the formal legal systemregulating human behavior, but differ with respect to the primacygiven to each.

The law and economics movement rests on the assumption thatsocial control is achieved primarily by the state through the legalsystem, and that governments are the chief source of rules andenforcement mechanisms (Posner 2003). The law and economicsapproach emphasizes the role of incentives and their ability toinfluence behavior. It assumes that individuals are rational andforward looking, and alter their behavior in the face of legal incen-tives. Whether an individual commits a criminalized act is deter-mined by an expected utility calculation. He or she would comparethe costs and benefits of criminal activity, where the expected ben-efits include monetary and nonmonetary returns of the crime,discounted by the probability of realization, and the expected costsof the crime, which include formal and informal sanctions (e.g.,social stigma), discounted by the probability of detection. This cal-culus is based on the assumption that the probability and magni-tude of sanctions are known. If the expected benefits exceed theexpected costs, a rational individual may commit the offense. Thiscost-benefit analysis is weighted against those of other legitimate


options. Levying penalties against criminalized behavior elevatesthe potential cost, thereby altering the cost-benefit calculus anddiscouraging the behavior.

In his seminal article on economic approaches to criminallaw, Becker (1968) emphasized that enforcement is done by thestate, rather than victims, and hence the state bears the cost ofdetecting, prosecuting, and punishing offenders. Limited resourcesconstrain expenditure on enforcement, and are assumed to beallocated according to rational calculations about costs and benefits(McAdams & Ulen 2008). To maximize social welfare, micro-economic models determine optimum levels of expenditure andenforcement, and the magnitude and forms sanctions (fine, impri-sonment, or a combination) required to optimally deter crime.

Law and society scholars note that while there are examples ofsuccessful deterrence-based strategies, there are also instances inwhich threat of criminal penalty has a limited impact. They empha-size that rules enforced at local levels often differ from formal law,but adhere to widely shared understandings of appropriate behav-iors and practices. When laws are antithetical to the norms of asocial group, the pecuniary costs may have limited power to deterbehaviors (Ellickson 1991; Tyler 1990). Posner (2000: 4) emphasizesthat, “the law is always imposed against a background stream ofnonlegal regulations—enforced by gossip, disapproval, ostracismand violence.” The influence of social groups may be powerfulwhen there are strong social sanctions such as withholding or con-ferring signs of status and respect, or withholding access to materialresources (Posner 2000). Thus, the law and society movement holdsthat both law and social norms influence behavior, but often sub-stantive norms supplement, and at times preempt, formal laws.

The law and society perspective further holds that laws mayhave limited power when they are poorly understood (Ellickson1991; Tyler 1990). In his seminal study of closed range ordinancesregulating cattle ranching in California, Ellickson (1991) demon-strated that people often settle disputes in total ignorance of theirlegal rights, and that scant knowledge of the content of legal mea-sures makes it improbable that fear of sanctions meaningfully regu-lates behavior. He argues, similar to Tyler (1990), that beyond thethreat of legal sanctions, other important factors influence compli-ance, including opinions of peers, informal sanctions from othersfor deviating from expected behavior, personal morality, and per-ceptions of legitimacy of the law and legal authorities (Ellickson1991). These describe a variety of norms that have been describedby Mackie and LeJeune (2009)5 as falling into a typology shown in

5 In creating this typology, Mackie and LeJeune (2009) drawing on the work ofBicchieri (2005), Elster (2007), McAdams (1997), and Nichols (2004).


Table 2. Mackie originally described FGM/C as a social convention,locked in place predominantly by concerns over marriageability,and possibly as a peer convention (Mackie 2000). A convention is asocial practice locked in place by interdependent expectations, andchange requires coordinating a shift in the reciprocal expectationsof interconnected social actors. More recently, Mackie and LeJeune(2009) expanded the original application of the theory to alsoaddress other meanings associated with FGM/C that operate asvarious types of norms: social norms enforced by positive sanctionsfor compliance or negative sanctions for noncompliance; religiousnorms commanded and enforced by God; and moral norms, enforcedby internalized values of right or wrong. These norms stand incontrast to legal norms, enforced by government sanctions formallystated in law. Social, moral, and religious norms may be intimatelyintertwined in complex cultural systems, and if at odds withlegal norms, may generate resistance to complying with legalregulations.

Thus, the law and economics and law and society perspectivesdiffer with respect to the primacy given to legal norms, and pointto different predictions about the legislation banning FGM/C inSenegal in several respects: knowledge of the law, perceivedenforceability, dispute resolution, and behavior change (Table 3).We investigate these predictions drawing on data from a case studyon behavior change with respect to FGM/C in Senegal. Specifically,we ask: Is there widespread knowledge of the existence of a lawbanning FGM in Senegal? Is the general public or are local leadersaware of the specifics of law? For those with knowledge of the legalprovision, does this alter or influence their behaviors, or do localnorms regarding FGM/C override legal restrictions? To what extentdo normative factors influence compliance or noncompliance withthe law? What are the indirect or unintended consequences ofenacting anti-FGM legislation?

FGM/C in Senegal

A three-year mixed-methods study on the dynamics ofdecisionmaking regarding FGM/C was conducted in The Gambia

Table 2. Typology of Norms

Social norms Enforced by positive sanction for compliance (e.g., acceptance, esteem,approval) or negative sanctions for noncompliance (e.g., avoidance,shame, ostracism)

Religious norms Enforced by belief in commandments of GodMoral norms Enforced by emotions evoked by internalized values of right and wrongLegal norms Enforced by government sanctions formally stated in law (fines or

imprisonment)

Adapted from Mackie and LeJeune (2009).


and Senegal. In order to examine responses to the law, we draw ondata from the Senegalese portion of this study, as FGM/C is notillegal in The Gambia. At the national level, the prevalence ofFGM/C in Senegal is 28 percent (according to the 2005 DHS; Diop2006),6 although rates vary dramatically by ethnicity and by subre-gion. Our Senegalese study communities included mixed ethnicityborderland communities in Fatick and Kaolack District, where theestimated prevalences of FGM/C are 6 and 11 percent, respectively.

When discussing the significance of FGM/C, those in favor ofthe practice describe a number of interrelated social, moral, andreligious norms that serve to uphold the practice. A number ofinformants linked FGM/C and Islam, arguing that FGM/C providesthe cleanliness and purification required for religious participationand prayer. Many supporters of FGM/C also emphasize its moralvirtues such as promoting chastity prior to marriage, and havingcontrolled sexuality and fidelity once married. Greater emphasis,however, is placed on the importance of FGM/C as a crucial com-ponent of training and proper childrearing (Shell-Duncan et al.2011). As girls are typically cut at a very early age, they undergo atransformation that is not only physical, but also prepares them tobe recipients of this training. They are taught to “know the eye”—that is, they know how to display respect for elders, and to honorand uphold the traditions of their ancestors. As we describeelsewhere, FGM/C is widely seen as “women’s business,” in that

6 We present figures from the 2005 DHS because this reflects prevalence at the timeour study data were collected. More recent figures are now available from the 2010 SenegalDHS, estimating the national prevalence of FGM/C at 26%.

Table 3. Predictions of the Law and Economics and Law and SocietyParadigms

Law and Economics Law and Society

Knowledge of thelaw

People have knowledge of the lawbanning FGC.

People may be unaware or onlyvaguely familiar with the legalprovision banning FGC.

Enforceability The law is seen as legitimate andenforceable.

People have limited concernsabout enforceability because oflimited familiarity with the legalprovision.

Dispute Resolution The formal legal system isemployed.

Local resolution efforts areemployed.

Factors motivatingabandonment ofFGC

In weighing the costs and benefitsof the practice, the possibility oflegal sanctions factors into theequation in a meaningfulmanner; for some, the potentialadditional pecuniary costsmotivate the decision toabandon FGC.

Without other factors changingsocial norms and motivatingchange in the practice of FGC,laws banning FGC do notmotivate abandonment of thepractice, and may drive thepractice underground or incitereactance.

FGC, female genital cutting; FGM, female genital mutilation.


it is organized and practiced by older women on young girls(Shell-Duncan et al. 2011). It signals to other women who haveundergone FGM/C that a girl has been trained to respect theauthority of her elders who have undergone FGM/C, thereby cre-ating an intergenerational hierarchy of power among womenwho have undergone FGM/C. In return for signaling their subor-dination, young women gain “insider” status, and hence accessto the social connections and social support of elder women. Wehave described this as an intergenerational peer convention(Shell-Duncan et al. 2011). Those who are not cut are sanctioned bybeing denied access to the same level of social support. Uncutwomen may be insulted by being labeled solema, meaning not only“uncircumcised,” but also rude, ignorant, immature, uncivilized,and unclean. Solema are told they “know nothing,” and are oftenostracized among women with FGM/C and excluded from attend-ing ceremonial events such as weddings or FGM/C rituals.

Despite the strong cultural significance ascribed to the traditionof FGM/C by its proponents, increasingly intense debates center onwhether it is an outmoded custom that should be discarded. Fordecades, Senegalese activists have been at the forefront of both localand global campaigns aimed at eliminating FGM/C. In February1984, Senegal hosted a UN-sponsored conference that aimed todiscuss anti-FGM policies. With delegates from 20 African nationsin attendance, a pivotal outcome of this seminar was the formationof the Inter-African Committee on Traditional Practices Affectingthe Health of Women and Children (IAC). One of the primarymandates of the IAC was to call for governments to use of existingnational legislation to criminalize FGM/C, and to implement legis-lation specifically banning the practice.

In 1999, Senegal adopted a criminal law that prohibits theviolation of “the integrity of the genital organs of a female person.”The law is applicable to anyone “who violates or attempts to violate”the prohibition; anyone who “provokes these sexual mutilationsor gives instructions for their commission.” The penalty includesimprisonment for six months to five years, or where cutting resultsin death, hard labor for life.

Following passage of the law, media reports claimed that the lawwas intended to be symbolic in nature. Senegalese parliamentarianMomar Lo, who introduced the bill in the parliament, was quotedclaiming that “no one is really going to go to jail . . . The govern-ment will ensure the courts don’t apply the law” (Hecht 1999).There were no provisions in place, however, to ensure the purelysymbolic nature of the law. In the first year following the passage ofthe law, there were two arrests, but following an emotional publicoutcry, the charges were dropped and no convictions resulted. Inan effort to promote public acceptance of the law, the government


supported a two-year program concentrated on awareness raisingand educational outreach that disseminated information about theexistence and content of the new law. Since that time there havebeen a number of high-profile arrests and convictions that havereceived a tremendous amount of media coverage, and have gen-erated debate as to whether the law should be altered, rangingfrom calls to repeal the law to appeals to stiffen the penalties(UNFPA n.d.).

Senegal has been the site of a number of media campaigns andnongovernmental organization-sponsored initiatives aimed atending the practice of FGM/C. It is the home of the massive Tostanprogram, whose goal is to enhance participants’ active involvementin the social, economic, political, and cultural development oftheir communities (Tostan 1999). Beginning in 1997, the basiceducation program led to the organization of public declarations ofcommunity-wide abandonment of FGM/C. Tostan has now orga-nized such declarations in over 5,000 communities in Senegal (as ofMarch 2013, Tostan, pers. comm.).

Recent developments in Senegal make this site a unique settingfor examining the effects and interaction of local nonlegal and legalfactors influencing the norms surrounding practice of FGM/C. Weseek to gain practical insights on the utility of law as a tool toeliminate the practice of FGM/C, and theoretical insights regard-ing the relationship between culturally mediated norms andformal law.

Methods

Data were collected over a 3-year period in Senegalese bordervillages in Fatick and Kaolack Districts beginning in 2004. Thisstudy site was selected after consulting with Tostan to determine alocale where the Tostan program had been implemented andwhere our research activities would not interfere with theirongoing work. Study sites did not provide a nationally representa-tive sample, but were instead selected to capture variation in aban-donment of FGC and the social dynamics surrounding the practice.Communities were ethnically diverse, included a mixture of fami-lies that did and did not practice FGC in the past, and varied as towhether they had or had not participated in the Tostan educationprogram or public declaration.7 Research in the borderland com-

7 Our research was expressly not intended to evaluate the Tostan interventionprogram, and should not be interpreted as such. We did benefit from the assistance ofMolly Melching, the director of Tostan, and other Tostan employees in identifying whichvillages in our study area had participated in various aspects of the Tostan program.


munities was of interest for several reasons. Movement acrossthe border is very fluid, and communities on either side sharevery similar characteristics in terms of dominant religion (over 90percent Muslim), subsistence activities, cultural practices, andclimate. It is not uncommon for extended families to live dividedon different sides of the political border, and some villages areliterally bisected by the border. Therefore, this setting allowed us toexamine the effects of differing national characteristics such asoverall prevalence of FGM/C, as well as different intervention pro-grams and national policies addressing FGM/C.

The study was conducted in two phases. The first phaseinvolved qualitative research. In-depth interviews were conductedwith men, women, community and religious leaders, health profes-sionals, and former circumcisers. Interview were conducted by twolocal field-workers, one male and one female, who were trained inqualitative methods, the use of interview guidelines, and the overallgoals of the research. In Senegal, a total of 98 interviews were taped,and later transcribed and translated into English. Six focus groupdiscussions were also conducted, divided by gender, age (elder vs.younger men or women), and whether participants came from avillage that had or had not participated in the Tostan program. Atthe University of Washington, the transcripts were then typed andcoded using a qualitative data analysis program, Atlas ti (GmbH,Berlin, Germany). An initial set of codes was created by the seniorinvestigators, and expanded while coding initial interviews. Asubsample of 40 interviews was double coded and compared, reveal-ing high consistency between investigators. The investigators metweekly to discuss emerging themes and constructs using a groundedtheory approach (Miles & Huberman 1994; Strauss & Corbin 1998).Focus group data were also coded, and themes and the degree ofconsensus or division were noted, and analyzed in a factorial designby constructing an overview grid organizing the focus group find-ings along break characteristics (gender, age, Tostan vs. non-Tostan)(following the methods of Knodel 1993).

The themes and constructs identified in qualitative data analy-sis were then used to create an ethnographically grounded survey.This included creating a survey instrument to measure an impor-tant concept identified in our qualitative analysis, namely anindividual’s readiness to change. Categories of readiness to changecombined two elements: an individual’s preference regardingFGM/C and his actual or anticipated behavior (Shell-Duncan &Hernlund 2006). During our pretest of the survey, we classified anindividual’s readiness to change using two methods: (1) a stagingalgorithm based on responses to six questions on preference andbehavior, and (2) an individual’s self-assigned readiness to changeafter having the categories explained (Shell-Duncan et al. 2010).


The Senegalese version also included three questions on the lawbanning FGC. A developmental pretest of the survey was carriedout in March and April 2006. This involved a conceptual review ofthe entire questionnaire with key consultants, evaluation of alter-nate forms of questions, testing the effect of question order, andassessing reliability using a test–retest process. The entire question-naire was translated into Mandinka and Wolof, back translatedinto English, and discrepancies were reconciled. The concordancebetween self-described and assigned readiness to change was exam-ined. However, since neither represents a “gold standard,” wecontrasted the strengths and weaknesses of each categorizationmethod. Because the self-described readiness to change stages reso-nated so clearly with pretest participants, we elected to use thismeasure in quantitative data analysis of the full survey. Furtherdetails of the pretest are found in Shell-Duncan et al. (2010).

The second phase of the study involved administering the ques-tionnaire, data entry, and quantitative data analysis. A multistagesampling procedure was used in which villages where FGM/C waspracticed by at least some residents were identified, and then strati-fied into Tostan and non-Tostan villages, and whether they werelarge or small. Cluster sampling of villages was done in eachstratum, and compounds were randomly selected in each village.The number of compounds sampled was proportional to the totalnumber of compounds. Residents were asked to list all femaleresidents between ages 18 and 40 who had given birth to at leastone girl. Using a random number table, one eligible woman wasrecruited from each compound. Women were asked if they had ahusband, and if he was alive. If they responded positively, a randomnumber table was used to select one out of every five husbands to beinvited to be interviewed. The overall response rate was 96.4percent. In Senegal, survey data were obtained from 265 womenand 82 husbands. Quantitative data from the survey questionnairewere analyzed using Stata software (Statacorp, College Station,TX, USA).

We evaluated associations between readiness to change andperceived power of the law among Senegalese respondents fromfamilies for which FGM/C was a tradition using logistic regression(LR). As the outcome of interest for LR models, self-describedreadiness to change was characterized in two binary variables:willing abandoners versus willing adherents, and contemplatorsversus willing adherents.

As the predictor of interest, a law score was created by combin-ing responses to three questions on enforceability and power ofthe law: “agree” responses were given three points, “unsure” twopoints, and “disagree” responses one point. The total number ofpoints was then averaged, for a variable ranging from one to three,


with a higher value indicating stronger expressed belief in thepower and enforceability of the law banning FGM/C in Senegal.

Confounding in LR models was defined as a change in theeffect of the predictor of interest greater than 10 percent with theinclusion of a control variable. Age, sex, and ethnicity were evalu-ated for confounding. Only age met this criterion in one model,and thus was controlled in both LR models.

We present results of this LR as both odds ratios (ORs) andpredicted probabilities; ORs tend to overstate associations foroutcomes that are not rare (e.g., >5 percent prevalence; Davies,Crombie, & Tavakoli 1998), while predicted probabilities avoidthis distortion. Predicted probabilities were calculated by calculat-ing values for logit X (where X is the binary readiness to changeoutcome) across the range of law scores, holding age constant atthe observed mean; the probability π(X) was then calculated asexp(logit X)/[1 + exp(logit X)] and graphed to represent the asso-ciation between readiness to change and law scores.

Results

Characteristics of survey respondents are shown in Table 4.Women and the subsample of husbands represent multiple ethnic

Table 4. Sample Characteristics

Senegalese Women Senegalese Husbands

Number of respondents 265 82Age range 18–40 years 22–73 yearsMuslim (%) 97.7 98School attendance (%)

None 17.8 8.5Arabic school only* 31.4 25.6Primary school 33.0 23.1Secondary school 15.9 25.6College 1.9 17.1

Ethnicity (%)Mandinka 28.3 33Wolof 15.1 17Fula 18.1 16Serer 32.1 23Other 6.4 11

Families that traditionally practiced FGC (%)Mandinka 93.3 100Wolof 2.5 0Fula 52.1 54Serer 36.5 32Overall 52.1 57

Interethnic marriage (%) 34.0 32FGC-incongruent marriage† (%) 14.0 20

*Arabic school only: the respondent’s only formal schooling was religious education.†Husband’s circumcision tradition does not match wife’s tradition.FGC, female genital cutting.


groups. Overall, 49 percent of the women reported havingundergone FGM/C. Interethnic marriage has become increasinglycommon, as the tradition of arranged marriage is giving way to“love marriage.” This has led to an increasing number of FGM/C-incongruent marriages, where one spouse is from a family thattraditionally practiced FGC and the other did not. We draw onanalyses of the qualitative and survey data to evaluate predictions ofthe law and economics and law and society paradigms.

Knowledge of the Law

The law and economics paradigm rests on the assumption thatpeople are aware of the law, and that this knowledge factors intotheir calculation of risks and benefits of a particular course ofaction. The law must therefore be effectively communicated andrelevant to local actors (Posner 2003). Alternatively, the law andsociety perspective holds that people are often unaware or onlyvaguely familiar with the content of legal provisions (Ellickson1991). Instead, the role of local norms is paramount, evidenced inthe force of weight given to nonlegal sanctions such as ostracism. Inassessing responses to the law banning FGM in Senegal in our studycommunities, one crucial question then is what was the awarenesslevel regarding the anti-FGM law?

In-depth interviews revealed that knowledge of the existence ofa law banning FGM/C was widespread. Many informants reportedhearing radio broadcasts informing the general public about theanti-FGM law, and others learned of the ban in bantabas (outdoorpublic meetings) organized by the elders, or through word ofmouth. Most people, however, knew very few details about thecontent of the legal provision, including potential targets of pros-ecution, the penalty for violation, or whether the statute containsan extraterritoriality clause banning FGM/C outside of Senegal’snational borders. Contrary to expectations, a vague understandingof the details of the ban did not reduce concerns about prosecution.Instead, it allowed people to imagine its application in a wide rangeof circumstances, including those beyond the true provision.

Enforceability

The law and society paradigm asserts that because behavior isguided primarily by local norms, and with minimal knowledge of orconcerns regarding formal legal provisions, community membersshould not regard the law as enforceable. In the law and economicsparadigm, a key element to social regulation through law is that itmust be seen by the public as both legitimate and enforceable.However, rather than striving for large-scale enforcement, deter-


rence theory rests on a psychological process whereby individuals aredissuaded from committing a crime if they perceive legal sanctionsas certain, swift, and/or severe (Williams & Hawkins 1986). Highlypublicizing a few cases of prosecution should dissuade at least somecommunity members from practicing FGC (Obiora 1997). Williamsand Hawkins (1986), however, draw a distinction between perceivedlegal sanctions and objective legal sanctions (the actual likelihood ofarrest), and argue that objective measures of legal sanctions do notin all instances equate with perceived legal sanctions. This appearsto be true in our study communities. Informants, when asked, wereunaware of any cases of enforcement of Senegal’s anti-FGM lawin their own communities, or elsewhere in Senegal. Many people,nonetheless, viewed the law as potentially enforceable. Simplyrumors or imaginings of enforceability generated fear of prosecu-tion. Indeed, lack of clarity on the details of the legal restrictioncontributed to the impression that the law could be broadly applied.This finding was supported by the survey questionnaire data as well:84 percent of respondents agreed with the statement, “The lawbanning female circumcision is more powerful than we are, so wemust change the practice,” and 80 percent agreed with the state-ment, “Someone who openly breaks the law banning female circum-cision needs to worry about being punished” (Table 5).

Dispute Resolution

The law and economics paradigm posits that when disputesarise, formal legal rules and processes are invoked to seek resolu-tion and impose punishment. By contrast, the law and societyparadigm emphasizes that local rules trump the rule of law, andpredicts that people will turn to local dispute resolution bodiesrather than the formal legal system. Toomey (2010) argues thatcustomary dispute resolution is often the primary means of access-ing justice, particularly in developing countries, because it is usuallyprocedurally acceptable to local community members, and geo-graphically and financially accessible. In Senegal, the local dispute

Table 5. Respondent’s Views on Enforceability and Power of the Law

Agree Disagree Unsure

I believe that the law banning female circumcisioncan be easily enforced in this community.

270 (78.5%) 19 (5.5%) 55 (16.0%)

The law banning female circumcision is morepowerful than we are, so we must change thepractice.

290 (84.3%) 31 (9.0%) 23 (6.7%)

Someone who openly breaks the law banning femalecircumcision needs to worry about beingpunished.

274 (79.7%) 30 (8.7%) 40 (11.6%)


resolution body is made up of the village leader (alkalo) and councilof elders. In villages that participated in the Tostan program, thereis also often an enforcement committee, formed to assure thatfamilies comply with the declaration to abandon FGM/C. Duringthe course of our fieldwork, one recent conflict was fresh in theminds of residents of one village, and illustrates the interplaybetween the state legal system and local enforcement and disputeresolution bodies. Binta,8 a 35-year-old Mandinka woman, hadbeen residing in this village for 19 years since marrying herhusband and moving away from her family’s compound in aGambian village just across the border. She stayed in close touchwith her family, and visited for occasions such as weddings andnaming ceremonies. Binta, we were told, had gone to visit herfamily some four months earlier, traveling with her seven-year-olddaughter Awa. Upon returning from the trip, Awa apparentlydisclosed a “secret” to her friends: That during the visit, she hadundergone FGM/C along with her female cousins. Once word gotout, the matter was taken up by the enforcement committee. Oneformer member of an enforcement committee explained:

A: Tostan taught us how to identify people who do it in secret. Thatis why nobody does it in secret. If they do, it would be reported tome. . .. Once, the committee identified someone who circumcisedtheir daughter across the border. And we went to the Alkalo (villageleader), and we agreed, and in front of the whole village we said, “Wewill fine you, and you pay, or we will report you to the authority.”This family paid the fine. They were used as an example, and nowpeople are afraid to take girls across the border.

Q: It is my understanding that it is not illegal to take girls to circum-cision in The Gambia. Would the authorities still get involved?

A: Yes, they could. We have agreed [to stop circumcision].

Several things from this exchange are noteworthy. In actuality,Senegal’s anti-FGM law does not contain an extraterritorialityclause, and therefore having a girl cut in The Gambia is not illegal.However, since many residents of this village participated in theTostan program and collectively agreed to stop practicing FGM/C,Binta violated the new agreement, thus violating a new and con-tested social norm. The enforcement committee used the law tobolster their authority and the weight of their decisions eventhough the law does not apply in this case. This illustrates thatwhen there are contestations in local norms, formal law canstrengthen the stance of those whose norms are most closelyaligned with the legal rule (see also Merry 2006).

8 Real names are not used.


The Role of the Law in Promoting Behavior Change

According to the law and economics rationale, people ought tolook to the law to determine the appropriate course of action. Thelaw must be accepted as legitimate, and fear of punishment should,at least for some, motivate abandonment of FGC. Many law andsociety scholars, by contrast, contend that formal law has beenoverrated as an instrument of change, and point to a growing bodyof evidence that reveals that segments of social life are located andshaped beyond the reach of the law. Hence, moral, religious, andsocial norms and concerns over rewards and sanctions from thesocial group exert considerable influence on individual actions,above and often beyond externally imposed criminal punishment.

While examining responses to the law, it is important to notethat in our study communities, there were active, and at timeheated, debates as to whether FGM/C has become an obsoletecustom that should be discarded, or whether it is a deeply valuedtradition handed down from ancestors that must be retained. Ourdata show that there exist a wide range of opinions on FGM/C notjust across communities, but even within families. In previous work(Shell-Duncan & Hernlund 2006), we have described the processof behavior change with respect to FGM/C in terms of stages ofreadiness to change that combine information on individuals’(1) actual behavior (abandon or not abandon FGM/C), and (2) pre-ference (supports or opposes FGM/C) (Figure 1). Willing adherentsare those who favor continuation of FGM/C and are continuing thepractice in their family.9 Reluctant adherents are those who personallyfavor abandonment, but continue the practice because others whoparticipate in the decision have not yet become persuaded to

9 We originally used the term “willing practitioner,” but this caused confusion for somewho thought we were referring to medical practitioners rather than practitioners ofFGM/C. We now use the term “willing adherent” to avoid this misunderstanding.

BehaviorPreference

Supports FGC Ambivalent Opposes FGC

AdherentWilling

AdherentReluctant Adherent

Undecided Contemplative

AbandonerReluctant

AbandonerWilling Abandoner

Figure 1. Dimensions of Readiness to Change Female Genital Cutting.Individual preference for female genital cutting (FGC) and actual behavior

regarding FGC combine to form five stages of change for FGC: willingadherent, contemplator, reluctant adherent, willing abandoner, and reluctant

abandoner (after Shell-Duncan & Hernlund 2006).


abandon the practice. Contemplators are those who continue thepractice, but are experiencing ambivalence and question aspects ofthe practice. Reluctant abandoners are those who personally supportthe practice, but have abandoned it because other people or socialpressures have forced them to stop. Willing abandoners describeindividuals who personally favor abandonment of FGM/C, andhave been able to act on this preference.

We examine readiness to change in Senegalese women whocome from a circumcising tradition, as well as in the subsample ofhusbands (Table 6). With greatest frequency, women in this groupdescribe themselves as willing adherents, while husbands are mostcommonly self-described reluctant abandoners. Pairing husbandsand wives, complete information is available for 48 couples. Stage ofchange concordance within couples was 52.63 percent. This dem-onstrates substantial potential discord within couples: Almost halfof husbands were in a different stage of readiness to change thantheir wives, with husbands being less likely to be willing adherentsof FGM/C than their wives, and more likely to self-identify with“none” of the categories of readiness for change.

We evaluated associations between stage of readiness to change(willing adherents vs. willing abandoners and willing adherents vs.contemplators) and demographic characteristics (age, sex, educa-tion, ethnicity, and marital status) among the full sample offemale respondents from families for whom FGM/C was a traditionusing univariate LR. The only significant association observed wasbetween willing adherents (vs. willing abandoners) and age (OR:1.07; 95% CI: 1.02, 1.14); no other demographic characteristicswere significantly associated with stage of readiness to change (datanot shown).

Tables 7 and 8 describe the results of LR for law scores andstage of readiness to change, controlling for age: In Table 7, willingabandoners are compared to willing adherents; in Table 8, contem-

Table 6. Distribution of Self-Described Stage of Readiness to Change amongSenegalese Women and a Subsample of Husbands

Among Senegalese Women fromCircumcising Families (N = 137)

Senegalese Husbands’ Self-DescribedStage of Change* (N = 48)

Self-Described Stage Frequency % Self-Described Stage Frequency %

Willing adherent 50 36.5 Willing adherent 9 18.8Reluctant adherent 3 3.2 Reluctant adherent 1 2.1Contemplator 5 3.7 Contemplator 3 6.3Reluctant abandoner 42 30.7 Reluctant abandoner 14 29.2Willing abandoner 27 19.7 Willing abandoner 12 25.0None 10 7.3 None 9 18.8Total 137 100.0 Total 48 100.0

*Restricted to husbands of women for whom FGC was a tradition before the law banningFGC.


plators are compared to willing adherents. Predicted probabilitiescalculated from this LR are represented graphically in Figure 2,and show that increasing law score (stronger agreement with asser-tions that the law banning FGM/C is powerful and readily enforced)was significantly positively associated with the willing abandoner orcontemplator (vs. willing adherent) stage of readiness to change. Incomparison to those who support the continuation of FGM/C, thosewho have abandoned the practice or are actively questioning thepractice have significantly greater fear of prosecution. This is con-sistent with the prediction of the law and economics theory thatthe potential pecuniary costs help dissuade the practice. However,among ardent supporters of FGM/C, fear of prosecution and beliefin the power of the law is significantly lower. This is also consistentwith the prediction of the law and society theory that when legalnorms run counter to social norms, threat of legal sanctions holdslittle sway. Consequently, readiness to change is strongly associatedwith the influence of threats of punishment and beliefs in power ofthe law. This suggests that imposing legal regulations in communi-ties where there is unanimous support for the practice of FGM/Cwill have little effect. However, where there are active debates anddivergent opinions about the continuation of FGM/C, legislationcan give added strength to those in favor of abandonment.

Knowing that there are strongly divergent views on whetherthe practice of FGM/C should be abandoned, as well as varied viewson the enforceability and power of the law, it is understandable that

Table 7. Association between Law Scores and Odds of being a WillingAbandoner versus being a Willing Adherent among SenegaleseWomen* by Logistic Regression (N = 99)

Variable Coefficient OR 95% CI p value

Age 0.074 1.077 −0.007, 0.155 0.075Law score 3.612 37.029 2.056, 5.168 0.000

*Restricted to women who identified as coming from a family that had traditionallypracticed FGM/C.

CI, confidence interval; OR, odds ratio.

Table 8. Association between Law Scores and Odds of being a Contemplatorversus being a Willing Adherent among Senegalese Women* byLogistic Regression (N = 68)

Variable Coefficient OR 95% CI p value

Age 0.046 1.047 −0.125, 0.216 0.600Law score 2.524 12.480 0.518, 4.530 0.014

*Restricted to women who identified as coming from a family that had traditionallypracticed FGM/C.

CI, confidence interval; OR, odds ratio.


our qualitative data reveal a wide range of responses to the law. Asmall number of respondents report abandoning FGM/C followingmedia broadcasts informing the general public about the anti-FGMlaw, although emotional reactions to this change varied tremen-dously. Some reported being sad about being forced to leave avalued cultural practice, and viewed themselves as powerlessagainst the force of the law:

In my opinion, I feel sad about the law because it is more powerfulthan us and we can not disagree with the law. The law forced usto stop it, but it should not be stopped because it is our traditionthat we found our grandmothers practicing. (Young Mandinkawoman)

For others, knowledge of the legal ban did not on its own motivateabandonment of FGM/C. Instead, FGM/C continued, but generated

Figure 2. Effect of Fear of Prosecution on Stage of Change amongSenegalese Respondents. Significant associations between increasing law

score (reflecting agreement with statements about the enforceability of lawsbanning FGC) and the predicted probability (calculated from results of

logistic regression) of a willing abandoner (compared to willing adherent;N = 99; middle), or a contemplator (compared to willing adherent; N = 68;

below), controlling for respondents’ age.


deep anxiety about the prospect of criminal sanctions. When theTostan intervention was later introduced in the village, however,their anti-FGM program was welcomed as a means of ending theongoing fear of punishment. As one Sereer woman commented:“The campaign was after the law. But after the law people weredoing it. The campaign made the law stronger and many peoplehave agreed that they have stopped.” This lends support to theassertion that the law may facilitate the change process by givingadditional leverage to those who have become persuaded about theneed to abandon FGM/C.

At the same time, we found that those who abandon the practicewere forced to grapple with the social repercussions of not havingcircumcised their daughters, and often experienced misgivingsabout their decision. One Mandinka mother, for instance, reportedsleeplessness from worrying about the fate of her two daughterswho have fallen into what she described as the “law trap.” Sheexplained: “the law was passed seven years ago and my daughterswere seven and five years old at the time. Now the eldest is fourteenyears old. If I look at them I get scared.”

Williams and Hawkins (1986) distinguish between the directand indirect consequences of legal sanctions that promote deter-rence, a distinction that is important in the case of FGM/C as well.The Senegalese law, for instance, is aimed at deterring not onlyparents of young girls, but also circumcisers. Interviews with someformer circumcisers revealed that they had stopped practicingfollowing the passage of the law. Additionally, while the skills ofcircumcisers were previously passed down from one generation tothe next, most claimed that they did not train an apprentice before“putting down the knife.” Some informants in our study commu-nities noted that, in the absence of trusted and experienced localcircumcisers, the demand has been met by “traveling circumcisers,”who reportedly circulate throughout communities in The Gambia,Guinea Bissau, and elsewhere. Many informants were suspicious ofthe training and qualifications of these circumcisers, and suspectedthat they are motivated by economic gain:

Q: What is your opinion about the law banning FGM?

A: My opinion towards it is that when I heard of law banning FGM,I felt happy about it because in the past, our ancestors did it accord-ingly and correctly, but now everybody wants to be a circumciserbecause of money and will not be qualified. (Elderly Sereer woman)

One indirect effect, then, of deterrence of circumcisers is thatthose favoring continuation of the practice must weigh the risksof employing a traveling circumciser with questionable skills. A


number of people reported this as a reason to favor legal bans onFGM/C.

While direct or indirect effects of threats of legal sanctionsresulted in abandonment in some cases, this was not universallytrue. Some people ascribe strong cultural value to the practice,and, as predicted by the law and society paradigm, rewardsand sanctions from their peers and elders exerted considerableinfluence, above and often beyond externally imposed rewardsor punishments. Some described legislative reform efforts as anattempt to “break culture” and force assimilation with dominantethnic groups that do not practice FGM/C (what some called“Wolofization”). One Mandinka woman remarked, “If they (thepeople who passed the law) did not leave their tradition, we willnot leave ours. They want us to be like them.” In some of ourstudy communities, reactance simmered below the surface, and ittook little to incite fervent vocal opposition to the law. In oneconservative community, following a tense focus group discussion,participants stood and chanted phrases such as, “We will not letour culture be destroyed!”

Other supporters of FGM/C responded to threats of legal sanc-tions by taking the practice underground. As Gunning predicted,“if people support the practice, then the law will not actuallyprevent the surgeries from being performed: people will just hidethe fact that they are doing it” (1991-92: 229). For ethical reasonswe did not in our study directly ask people if, following the ban,they had continued to practice FGM/C. Nonetheless informantsoften offered general comments:

Q: What changes have you seen in the practice over the years?

A: People are not practicing it as how it was in the past. Even if theyare doing it, then it is done secretly but not openly done. And that isa change I have noticed in our community here. (Sereer woman)

Secrecy, some informants explained, was achieved partially byeliminating the public celebration that had formerly accompaniedthe practice. Additionally, it was considered more difficult to detectthat FGM/C performed on infants than on older girls, as infantsare not visibly absent from village activities during recovery. Con-sequently, as predicted by the law and society paradigm, amongardent supporters of FGM/C, legal norms ran counter to the socialnorms upholding the practice, and had little influence in deterringthe practice. This reveals that when legislative reform is not accom-panied by other effective means of addressing the broader culturalcontext, threat of criminal sanctions does not appear to be aneffective means of catalyzing behavior change. However, when thepractice of FGM/C was contested, and where the process of change


was underway, legal sanctions strengthened the stance of those infavor of abandonment of FGM/C.

Discussion

We have analyzed our data on responses to the law banning FGMin Senegal with respect to two leading theories on social regulation:the law and economics and law and society paradigms. Each theoryleads to divergent predictions on individuals’ knowledge of the law,views on enforceability, use of the formal legal system in disputeresolution, and ability of the law to change behavior. Our researchreveals support for certain elements of each theory, shedding lighton how legal norms are variably weighed against social, moral, andreligious norms that serve to uphold the practice of FGM/C. We findthat threat of criminal sanctions is weighed against the effects ofdefying local norms, and this calculus is strongly influenced by thedegree to which the cultural value has been called into question.

Key findings of our research include the fact that mass enforce-ment of the law is not required to generate widespread fear ofprosecution. However, fear of prosecution, while contributing tomotivation to abandon FGM/C for some individuals, results inmultiple responses. While some people viewed the ban as a reasonto reluctantly abandon FGM/C, others defied the ban and continuedthe practice underground. Reactance in our study communities didnot spark visible public protests, although in some communitiesdeep resentment over the “criminalization of culture” simmeredjust below the surface and boiled over when the topic was raised. Itis important to note as well that there exist some individuals not onlyin elite urban echelons of Senegalese society, but in a relatively poor,rural context as well, who expressed having serious reservationsabout the prospects of having FGM/C performed on their daughtersand who welcomed the passage of the law and intervention efforts.Surprisingly, these multiple responses coexisted not just within asingle region or village, but even within an extended family. Impor-tantly, where the practice of FGM/C was being contested, legislationserved to give added strength to those contemplating or favoringabandonment. This lends support to the assertion of Rahman andToubia (2000: 13) that “law can be a useful tool for change, givingNGOs and individuals greater leverage in persuading communitiesto abandon the practice.”

Many scholars have argued that law alone seldom changesbehavior, and that legal reform must be accompanied by otherchange efforts that address the culturally mediated social, moral,and religious norms that may uphold the practice (e.g., Obiora1997; Rahman & Toubia 2000). In our study communities, some


respondents who continued to secretly practice FGM/C expresseddeep anxiety over not complying with the law, and feared beingcaught by the authorities. This fear did not, in and of itself, lead toabandonment of FGM/C in most instances, but instead led to resi-dents to welcome the Tostan program to their community. TheTostan intervention was positively viewed as a means of organizingchange that would lead to compliance with the anti-FGM law, andother Tostan programs, such as literacy, preventive health care, andsanitation, were welcomed as well. Our findings support the viewexpressed by UNICEF (2005: 29), who describe the role of legisla-tion in terms of “creating an enabling environment”; they empha-size that, beyond serving as a deterrent, legal bans provide a supportmechanism for those who have or wish to abandon FGM/C. Conse-quently, as Lewis and Gunning (1998) anticipated, a legislativeapproach can work in a complementary fashion with an integratedcommunity-based intervention approach when addressing FGM/C.

At the same time, it is important to emphasize that in our studycommunities, those who practiced FGM/C were keenly aware thatthey are in the minority in Senegal, and that the practice has beentargeted for elimination. There were widely divergent views onwhether the practice of FGM/C should be discarded or retained,and readiness to change was found to be strongly associated with theperceived influence of threats of punishment and beliefs in thepower of the law. Where the practice of FGM/C was being contested,legislation was able to give added strength to the opinion of thosewho favor abandonment. Even in the context of customary disputeresolution, the weight of force of the new legal norm was able to beco-opted and used to strengthen the stance of those whose normsmost closely aligned with the new legal rule. Our findings are,however, specific to the border region of Senegal, a setting in whichthe minority of residents in the region practice FGM/C, the nation’sdominant ethnic group does not practice FGM/C, and decades ofcampaigns against the practice have sparked active debates. Thesuccessful elements of legislative reform seen here may not be foundin other regions of Senegal, or in other countries, in which amajority of the population practices FGM/C. Further research isneeded to more fully understand responses to legislative reformacross the range of social contexts in which it is being implemented,and should investigate how it can best complement other reformstrategies aimed at eliminating FGC.

References

Becker, Gary S. (1968) “Crime and Punishment: An Economic Approach,” 76 J. ofPolitical Economy 169–217.


Bicchieri, Cristina (2005) The Grammar of Society: Nature and Dynamics of Social Norms.Cambridge, MA: Cambridge Univ. Press.

Boyle, Elizabeth H., & Sharon E. Preves (2000) “National Politics as InternationalProcess: The Case of Anti-Female-Genital-Cutting Laws,” 34 Law & Society Rev.703–37.

Davies, Huw T. O., Ian K. Crombie, & Manouche Tavakoli (1998) “Information inPractice: When Can Odds Ratios Mislead?,” 316 British Medical J. 989–91.

Diop, Nafissatou (2006) “Excision,” in Ndiaye, Salif, & Mohamed Ayad, eds., EnquêteDémographique et de Santé Sénégal 2005. Calverton, MD: ORC Macro.

Economist (1999) “Female Genital Cutting: Is It a Crime or Culture?,” February 13Economist 45.

Eliah, Elaine (1996) “Reaching for a Healthier Future,” 23 Populi 12–16.Ellickson, Robert C. (1991) Order Without Law: How Neighbors Settle Disputes. Cambridge,

MA: Harvard Univ. Press.Elster, Jon (2007) Explaining Social Behaviour: More Nuts and Bolts for the Social Sciences.

Cambridge, MA: Cambridge Univ. Press.Gunning, Isabelle R. (1992) “Arrogant Perception, World-Traveling and Multicultural

Feminism: The Case of Female Genital Surgeries,” 23 Columbia Human Rights LawRev. 188–248.

Hecht, David (1999) “When a Law Sweeps in, Tradition Lashes Back,” Christian ScienceMonitor, February 4, 1999.

Katzive, Laura (2003) Using the law to promote women’s rights. Considerations in drafting andimplementing legislation to prevent FC/FGM. Paper presented at the Afro-Arab ExpertConsultation on Legal Tools for the Prevention of Female Genital Mutilation, Cairo,Egypt, June 20–23, 2003.

Knodel, John (1993) “The Design and Analysis of Focus Group Studies: A PracticalApproach,” in Morgan, D. L., ed., Focus Groups: Advancing the State of the Art.Newbury Park, CA: Sage Publications.

Lewis, Hope, & Isabelle R. Gunning (1998) “Cleaning Our Own House: ‘Exotic’ andFamilial Human Rights Violations,” 123 Buffalo Human Rights Law Rev. 123–40.

Mackie, Gerry (2000) “Female Genital Cutting: The Beginning of the End,” in Shell-Duncan, B., & Y. Hernlund, eds., Female “Circumcision” in Africa: Culture, Controversy,and Change. Boulder, CO: Lynne Rienner Publishers.

Mackie, Gerry, & John LeJeune (2009) “Social Dynamics of Abandonment of HarmfulPractices: A New Look at the Theory,” Special Series on Social Norms and HarmfulPractices: Innocenti Working Paper No. 2009-06, Florence, UNICEF InnocentiResearch Centre.

McAdams, Richard H. (1997) “The Origin, Development, and Regulation of Norms,” 96Michigan Law Rev. 338–433.

McAdams, Richard H. (2000) “An Attitudinal Theory of Expressive Law,” 79 Oregon LawRev. 339–90.

McAdams, Richard H., & Thomas S. Ulen (2008) “Behavioral Criminal Law and Eco-nomics,” Olin Working Paper No. 440. Available at: http://www.law.u.chicago.edu/files/files/244-440.pdf (accessed 10 March 2013).

Merry, Sally E. (2006) Human Rights and Gender Violence: Translating International Law intoLocal Justice. Chicago: The Univ. of Chicago Press.

Miles, Matthew B., & A. Michael Huberman (1994) Qualitative Data Analysis: An ExpandedSourcebook, 2nd ed. Thousand Oaks, CA: Sage Publications.

Nichols, Shaun (2004) Sentimental Rules: On the Natural Foundations of Moral Judgment.Oxford: Oxford Univ. Press.

Obiora, Leslye A. (1997) “Bridges and Barricades: Rethinking Polemics and Intransi-gence in the Campaign against Female Circumcision,” 47 Case Western Law Rev.275–378.

Posner, Eric A. (2000) Law and Social Norms. Cambridge, MA: Harvard Univ. Press.Posner, Richard A. (2003) Economic Analysis of Law, 6th ed. New York: Aspen Publishers.


Rahman, Anika, & Nahid Toubia (2000) Female Genital Mutilation: A Guide to Law as andPolicies Worldwide. New York: Zed Books.

Shell-Duncan, Bettina (2008) “From Health to Human Rights: Female Genital Cuttingand the Politics of Intervention,” 110 American Anthropologist 225–36.

Shell-Duncan, Bettina, & Ylva Hernlund (2006) “Are There ‘Stages of Change’ in thePractice of Female Genital Cutting?: Qualitative Research Findings from Senegaland The Gambia,” 10 African J. of Reproductive Health 57–71.

Shell-Duncan, Bettina, et al. (2010) “Contingency and Change in the Practice of FemaleGenital Cutting: Dynamics of Decision Making in Senegambia,” Summary Report.Available at: http://csde.washington.edu/bsd (accessed May 2013).

——— (2011) “Dynamics of Change in the Practice of Female Genital Cutting inSenegambia: Testing Predictions of Social Convention Theory,” 73 Social Science andMedicine 1275–83.

Strauss, Anselm, & Juliet Corbin (1998) Basics of Qualitative Research: Techniques forDeveloping Grounded Theory, 2nd ed. Thousand Oaks, CA: Sage Publications.

Toomey, Leigh (2010) “A Delicate Balance: Building Complementary Customary andState Legal Systems,” 3 Law and Development Rev. 156–208.

Tostan (1999) Breakthrough in Senegal: Ending Female Genital Cutting.Tyler, Tom R. (1990) Why People Obey the Law. New Haven: Yale Univ. Press.U.S. Department of State (2004) Human Rights Reports, Available at: http://www

.state.gov/g/drl/hr/c1470.htm (accessed September 2005).UNFPA (n.d.) Senegal: Human Rights Key to Ending FGM/C. Available at: http://www

.unfpa.org/gender/docs/fgmc_kit/LawSenegal.pdf (accessed 2 September 2012).UNICEF (2005) Changing a Harmful Social Convention: Female Genital Mutilation/Cutting.

Florence, Italy: United Nations Children’s Fund (UNICEF).——— (2010) Legislative Reform to Support the Abandonment of Female Genital Mutilation/

Cutting. New York: UNICEF. Available at: http://www.unicef.org/policyanalysis/files/UNICEF_-_LRI_Legislative_Reform_to_support_the_Abandonment_of_FGMC_August_2010.pdf (accessed April 2011).

Welch, Claude E., Jr (1995) Protecting Human Rights in Africa: Roles and Strategies ofNongovernmental Organizations. Philadelphia: Univ. of Pennsylvania Press.

WHO (1999) Female Genital Mutilation: Programmes to Date: What Works and What Doesn’t.A Review. Geneva: World Health Organization.

Williams, Kirk R., & Richard Hawkins (1986) “Perceptual Research on General Deter-rence: A Critical Review,” 20 Law & Society Rev. 545–72.

Bettina Shell-Duncan, Ph.D., is a Professor of Anthropology and AdjunctProfessor of Global Health at the University of Washington. She has con-ducted extensive mixed-methods research on female genital mutilation/cutting in East and West Africa, and has published widely on the topic,both as an independent researcher and as an academic consultant for theWorld Health Organization and UNICEF. She is the coeditor (with YlvaHernlund) of two volumes: Female Circumcision in Africa: Culture, Con-troversy and Change (Lynne Rienner Publishers 2000) and TransculturalBodies: Female Genital Cutting in Global Context (Rutgers University Press2007). She is also coauthor (with Claudia Cappa) of the UNICEF publi-cation, Female Genital Cutting: A Statistical Overview and Exploration ofthe Dynamics of Change (2013).

Katherine Wander (MPH Epidemiology, Ph.D. Anthropology, Universityof Washington) is an independent scholar based in San Diego, California.


She has conducted extensive field research in Tanzania focused on childhealth and immune development. She has also published research on irondeficiency among Kenyan children and female genital cutting/mutilation inSenegal and The Gambia.

Ylva Hernlund, Ph.D. Anthropology, is an independent scholar based inSeattle, WA. She has conducted extensive research in West Africa on thetopic of female genital cutting and is coauthor (with Bettina Shell-Duncan)of two volumes: Female Circumcision in Africa: Culture, Controversy andChange (Lynne Rienner Publishers 2000) and Transcultural Bodies:Female Genital Cutting in Global Context (Rutgers University Press 2007).

Amadou Moreau, a Sociologist and Demographer, is Vice President forGlobal Initiatives at the Global Research and Advocacy Group (GRAG).With 17 years of experience with key populations in a wide variety ofdomestic, regional, and international settings, Moreau has been at theforefront of development, implementation, and evaluation of STI/HIV strat-egies targeting sexual minorities across sub-Saharan Africa. He serves oninternational networks promoting successful approaches among vulnerablepeople. Moreau has written extensively on gender norms and related issues,such as sexual and reproductive rights, child protection, early marriage,STI/HIV/AIDS prevention, LGBTQ, gender-based violence, as well asstigma and discrimination.


Legislating Change? Responses to Criminalizing Female Genital Cutting in Senegal

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