MUTILATING WORDS.

• Date: 01 December 2020
• Author: Gans, Jeremy

CONTENTS I Introduction II Sovereignty and Females A Plaxton's Statutory Interpretation Thesis B The High Court's Statutory Interpretation III Restraint and Genitals A Plaxton's Restraint Thesis B The High Court's Restraint IV Guidance and Mutilations A Plaxton's Guidance Thesis B The High Court's Guidance V Conclusion R V A2 ([dagger])

Sovereignty, Restraint, & Guidance: Canadian Criminal Law in the 21st Century by Michael Plaxton (Irwin Law, 2019) pages 1-591. Price CAD75.00 (paperback). ISBN 978-1-55221-499-2.

I INTRODUCTION

On Wednesday 29 August 2012, a joint team from the New South Wales ('NSW') health and police services interviewed two children at their primary school. (1) The eldest, aged eight, was asked about 'a type of cutting to the private part'. (2) She said '[it] happened to me' when she was seven and gave a poignant account. (3) Her six-year-old sister was less forthcoming, but replied '[y]es' when told that 'we heard that you had had a cut on your private parts', adding that she felt ' [h]urting ... [i]n my bottom' (4) A few hours later, the police secretly recorded their mother when she picked them up from school: 'I told you not to say. Now we are in big trouble because of this.' (5) Over the next fortnight, the police tapped the phones of the girls' parents and other members of the greater Sydney area's Dawoodi Bohra community, listening as some concocted a false story about checking the girls' vulvas for injuries after a trip to Africa. (6) They also recorded the girls' father asking their mother (in a police station waiting room) '[i]n us do they cut skin ... or do they cut the whole clitoris' and her reply '[n]o they just do a little bit'. (7) Three years later, a jury found A2 (8) (the girls' mother), Shabbir Vaziri (the community's head cleric and spiritual leader) and Kubra Magennis (a registered nurse) guilty of female genital mutilation. (9)

We will never know exactly what happened to the girls' genitals. We know that Magennis touched their vulvas with steel forceps in A2's presence--the defendants admitted that at the trial (10)--and that the jury unanimously found that the girls' clitorises were injured. (11) We also know that the trial that yielded that verdict was flawed--the prosecution conceded that in the High Court (12)--because the younger child swore an oath she was not competent to make; (13) a prosecution expert on the Dawoodi Bohra community went beyond her expertise; (14) the jury was given irrelevant information about a local education program; (15) and a fresh examination disproved trial evidence suggesting that the tips of the girls' clitorises were gone. (16) More recently, we learnt that the NSW Court of Criminal Appeal's view that the verdict was unsafe was itself unsafe--the defence has since abandoned that ground of appeal (17)--because the appeal court misinterpreted the offence provision. (18) Although a retrial would have been possible--the Court of Criminal Appeal ordered one (19)--we know that it will not occur, because the prosecution has chosen not to proceed for 'discretionary reasons'. (20)

However, the case has lasting legal significance. The High Court resolved a key question about the meaning of NSW's 25-year-old female genital mutilation offence:

45 Prohibition of female genital mutilation

(1) A person who:

(a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or

(b) aids, abets, counsels or procures a person to perform any of those acts on another person, is liable to imprisonment for 7 years. (21)

The majority endorsed the trial judge's instruction that 'otherwise mutilates' means 'to injure to any extent' and rejected the NSW Court of Criminal Appeal's view that it requires 'injury or damage that is more than superficial and which renders the body part in question imperfect or irreparably damaged in some fashion'. (22) The High Court's ruling is important to similar prosecutions in the future and may affect the legality of other things done to women's genitals, such as waxing, cosmetic surgery and extreme body modifications.

Questions such as these--about the meaning of words in criminal offence provisions--are the subject of a recent book by the University of Saskatchewan's Professor Michael Plaxton titled Sovereignty, Restraint, & Guidance: Canadian Criminal Law in the 21st Century ('Sovereignty, Restraint, & Guidance'). (23) The title refers to three theses--Parliament makes the criminal law, it usually does not mean to transform society, but it does mean to guide lay people (24) --that Plaxton argues explain most features of the substantive criminal law and, in particular, determine how to work out the meanings of the words in offence provisions. In his book, Plaxton seeks to present 'a plausible account of what the law is', (25) drawing on hundreds of Canadian court decisions about the meaning of criminal offences. Naturally--but especially given Plaxton's past vigorous criticisms of a number of Canadian decisions (26)--his aim is both to devise 'an internally coherent set of principles' behind these decisions and to identify where courts have gone 'astray' (27) The latter concern is not idle. Such courts, Plaxton argues,

risk undermining the democratic values that animate our constitutional system, and the public's sense that the substantive criminal law is roughly responsive to their own moral priorities, sensibilities, and voices. They risk sending the message--to both citizens and legislators--that elected officials need not make hard decisions about how it is inappropriate for members of the public to act, since the courts will sand away any injustices in the name of 'interpretation'. (28) While Australians are familiar with concerns about democratic deficits when it comes to rulings on constitutional law, (29) Plaxton's attention is directed to the less discussed terrain of how courts read the words of criminal statutes.

My own goal in this combined case note and book review is to apply Plaxton's theses on the substantive criminal law to the High Court of Australia's decision on female genital mutilation, to try to test both Plaxton's approach and the High Court's. I use the word 'try' mainly because, as its subtitle makes clear, Plaxton's book is 'emphatically a work about Canadian law at this moment in history--and not the law of the United States, the United Kingdom, or Narnia'. (30) Or Australia. That means that my goal of measuring the Australian case and Canadian book against each other could sputter in multiple ways: the High Court's judgment could be an outlier or oddity, or Plaxton's theses could have a relevant gap or flaw, or Australia and Canada's legal systems may differ in some pertinent way. But that is fine because those would all be interesting failures. Plaxton states that, while his book's aim is 'to unsettle opinion and provoke debate on what are the fundamental ground rules and techniques of substantive criminal law', merely 'forcing a rethink on a number of smaller, more discrete issues ... is good enough for [him]'. (31) So too this note/review.

With my case note hat on, I should point out that the female genital mutilation prosecution that reached the High Court is one I have tracked for years. I have set the case as an exam question for my students several times and my criminal law text's latest edition features the original trial as a running example of criminal justice discretions and defences, including passing criticisms of the trial judge's (now High Court's) interpretation of 'mutilates'. (32) With my book review hat on, I must point out that my own writing and teaching on criminal law reflects Plaxton's view that the process of interpreting criminal offence provisions largely accounts for how the substantive criminal law works. (33) Indeed, Plaxton and I have other shared academic interests, including sexual assault law (34) and the work of apex courts, (35) though we do not always agree. (36)

Plaxton's book, running to over 500 pages, is too large and detailed to fully cover here. The High Court judgment is also complex, with four separate (and different) judgments. This combined note/review will focus on the parts that intersect. (37) It will work through Plaxton's three theses in order. For each, it will first present Plaxton's approach and explain how it ties to the questions about female genital mutilation that were before the High Court, and then it will present the High Court's approach and examine how it measures up against Plaxton's. Part II(B) will focus on the two principal judgments in R v A2, Kiefel CJ and Keane J, for the majority, and Bell and Gageler JJ, for the minority. I will shift my attention to the concurrences of Nettle and Gordon JJ and Edelman J in Parts III(B) and IV(B), respectively.

II SOVEREIGNTY AND FEMALES

A Plaxton's Statutory Interpretation Thesis

I will start with a provocative question: who decides what can and cannot be done to women's bodies? This question seems either rhetorical or outrageous, but--in both Australia and Canada--there is at least one answer that is neither: Parliaments decide, as they can with nearly all things.

Hence, in 1994, NSW's Parliament chose to impose a heavy criminal penalty on anyone who does certain things ('excises, infibulates or otherwise mutilates') to certain parts ('labia majora or labia minora or clitoris') of women's bodies (subject to some medical exceptions). (38) Three years later, Canada's Parliament did the same, expressly including those same acts (with different exceptions) within its existing aggravated assault offence. (39) Both Parliaments' criminalisation decisions followed an earlier one taken by the United Kingdom's ('UK') Parliament in the form of the Prohibition of Female Circumcision Act 1985 (UK). (40)

To Plaxton, identifying who made these rules--legislatures--is crucial to understanding, applying and criticising...