Supreme Tribunal of Spain (Tribunal Supremo), Section II, No. 835/2012, 31 October 2012

Recourse against conviction for female genital mutilations, victim was the minor daughter of the couple of defendants. Evaluation of the error about the criminal law.

Art. 149.2 Spanish criminal code
Art. 14 Spanish criminal code

1. The assertion that the excision of the clitoris is a cultural practice in the defendant’s country of origin cannot constitute an excuse to develop a theory of “error about the law based on cultural factors”, because the respect for traditions and cultures has as its insurmountable limit the respect for human rights, which represents the lowest common denominator demandable in all cultures, traditions and religions.

2. There cannot be error, not even avoidable, about the criminal law incriminating female genital mutilation when the perpetrators have been resident in the country for many years, are well integrated in the Spanish culture and are aware of the legal prohibition.

(The court of second and last instance upheld the conviction of two Gambian nationals for excising the clitoris of their minor daughter, on Spanish territory. In particular, it confirmed the existence of an avoidable error of law – with mitigation of the punishment – with regard to the child’s mother, who had just arrived in Spain to reunite with her husband and was not yet integrated into the culture of the country. On the contrary, in application of the principles set out above, it rejected the defence of the child’s father, who invoked an error of law on the basis of the argument that female genital mutilation is an ancestral practice of more than three thousand years in his country of origin, which is not intended to undermine the physical integrity of women, but to facilitate the child's integration within its community. The Supreme Court, to this regard, said it constitutes a violation of human rights and discrimination against women.)