120 GENDER PERSPECTIVES ON TORTURE: Law and Practice a minor. Article 583 ter provides accessory sanctions for health care providers that perform FGM, and calls for suspension from professional activity for three to ten years. States’ indifference or inaction provides a form of encouragement and de facto permission for the practice to take place and go punished60. When States, even in the presence of specific criminal laws prohibiting FGM, do not take action to punish perpetrators, including medical professionals, this suggests consent, acquiescence and, at times, justification of violence. One could even argue that, given that States have enacted laws prohibiting FGM, those States are aware of a pattern of con­ tinuous violence in a particular region or community, targeted at a specific group and performed by non-State actors (i.e., minor girls excised by excisors, medical doctors with the agreement of parents), and are thus obliged to respond appropriately61. As the Special Rapporteur asserts, States fail in their duty to prevent torture and ill-treatment whenever their laws, policies, or practices per­ petuate harmful gender stereotypes in a manner that enables or authorizes, explicitly or implicitly, a prohibited act to be performed with impunity. Investigating and prosecuting FGM The Special Rapporteur’s report on gender states that “domestic laws permitting the practice contravene States’ obligation to prohibit and prevent torture and ill-treatment, as does States’ fail­ ure to take measures to prevent and prosecute instances of female genital mutilation by private persons62”. It further cautions that perpetrators include the victim’s parents, and in this context, prosecution and the imposition of sanctions, including imprisonment, must result from a nuanced determination that takes the best interests of the child into account. In the European context, implementing laws regarding FGM has proven challenging. When not carefully accompanied by adequate measures, the implementation of laws can have a number of effects that may amount to torture. In Europe, FGM is prohibited either by general criminal laws or specific criminal laws. By July 2014, 13 EU Member States had established specific laws criminalising FGM63 (Austria, Belgium, Croatia, Cyprus, Denmark, Germany, Ireland, Italy, Malta, the Netherlands, Spain, Sweden and the UK). However, the number of court cases remains limited, which has raised concern in some countries, such as the UK, as to the usefulness of having a criminal law that is not implemented. Research on the implementation of laws indicates that there are a number of issues related to reporting FGM cases and finding sufficient evidence to bring a case to court64,65. Several measures have been suggested to increase the number of reports sent by professionals to judicial authorities, or to acquire evidence of FGM. One of these measures is the compulsory examination of girls’ gen­ itals to detect whether or not a girl is still intact. However, introducing such a measure to enforce the law on FGM is highly controversial and poses several critical challenges to put the law into practice. In the Netherlands, for example, such annual gynaecological screenings of all minor girls A/HRC/31/57. A/HRC/31/57, §11. 62 A/HRC/31/57, § 62 63 EIGE, 2015. Estimation of girls at risk of female genital mutilation in the European Union. Report. 64 Leye E, Deblonde J, Garcia-Anon J, Johnsdotter S, Kwateng-Kluvitse A, Weil-Curiel L, Temmerman M. An analysis of the implementation of laws with regard to female genital mutilation in Europe. Crime Law Social Change, February 2007, Vol. 47, Issue 1. 65 Johnsdotter S, Mestre I, Mestre R.M., Female genital mutilation in Euorpe: an analysis of court cases. European Commission, 2015; Johnsdotter S., Discrimination of certain ethnic groups: Ethical aspects of implementing FGM legislation in Sweden. Malmö University, Sweden, 2009. 60 61