SENATE DOCKET, NO. 307        FILED ON: 1/14/2015

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1116

The Commonwealth of Massachusetts

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PRESENTED BY:

William N. Brownsberger

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act establishing civil and criminal penalties for the female genital mutilation of minors.

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PETITION OF:

SENATE DOCKET, NO. 307        FILED ON: 1/14/2015

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1116

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act establishing civil and criminal penalties for the female genital mutilation of minors.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 111 of the General Laws is hereby amended by inserting after section 220 the following new section:-

Section 220A. The commissioner shall develop and administer a program of education, prevention and outreach for communities that commonly practice female genital mutilation as defined in section 58 of chapter 265. The program shall be designed to inform those communities about the health risks and emotional trauma inflicted by the practice of female genital mutilation, as well as the criminal penalties for committing female genital mutilation.  The commissioner shall work with culturally appropriate groups to obtain private funds to help finance these prevention and outreach activities.

The commissioner shall develop and disseminate information regarding female genital mutilation and the criminal penalties for committing female genital mutilation to health care providers and law enforcement personnel.

SECTION 2. Section 21 of chapter 119 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by inserting after the word “faculty”, in line 81, the following words:-, including female genital mutilation, as defined in section 58 of chapter 265.

SECTION 3. Chapter 119 of the General Laws is hereby amended by inserting after section 39L the following section:

Section 39M. (a) Notwithstanding any general or special law to the contrary, the department of children and families, in collaboration with the department of mental health and other appropriate state agencies, shall: (i) provide for the child welfare services needs of children who have undergone or are at risk of FGM including, but not limited to, services for victims of FGM residing in the commonwealth at the time they are identified by the department as victims  or at risk of FGM, for the duration of any legal or administrative proceeding in which they are either the complaining witness, defendant or the subject child; and (ii) provide appropriate services to a child reasonably believed to be a victim of or at risk of FGM in order to safeguard the child's welfare. If a child reasonably believed to be a victim of or at risk of FGM declines services or is unable or unwilling to participate in the services offered, the department or any person may file a care and protection petition under section 24. Child victims of FGM or at risk of FGM shall have access to an advocate. The advocate or a member of the multidisciplinary service team established under section 51D shall accompany the child to all court appearances and may serve as a liaison between the service providers and the court.

(b) The services that shall be provided under this section shall be available to all child victims of FGM or at risk of FGM, whether they are accessed voluntarily, through a court proceeding under this section or through a referral, which may be made by any person.

(c) The commissioner of the department may, subject to appropriation, contract with non-governmental organizations or entities with experience working with victims of female genital mutilation or at risk of female genital mutilation to train law enforcement officials likely to encounter victims of female genital mutilation in the course of their law enforcement duties. The training shall include, but not be limited to, awareness and compliance with the provisions of this section, identification of, access to, and the provision of services for victims of female genital mutilation or those at risk of female genital mutilation and any other services the department deems necessary.

(d) The department shall adopt regulations to carry out this section.

SECTION 4.  Section 51A of said chapter 119, as so appearing, is hereby amended by striking out the first full paragraph of subsection (a), and inserting in place thereof the following subsection:-

(a) A mandated reporter who, in his professional capacity, has reasonable cause to believe that a child is suffering physical or emotional injury resulting from: (i) abuse inflicted upon him which causes harm or substantial risk of harm to the child's health or welfare, including sexual abuse and/or female genital mutilation, or the substantial risk of female genital mutilation, as defined in section 58 of chapter 265; (ii) neglect, including malnutrition; (iii) physical dependence upon an addictive drug at birth; (iv) being a sexually exploited child; or (v) being a human trafficking victim, as defined in section 20M of chapter 233, shall immediately communicate with the department orally and, within 48 hours, shall file a written report with the department detailing the suspected abuse or neglect.

SECTION 5. Section 51B of chapter 119 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by inserting after the word “authorities”, in line 7, the following words:- , a child who is a victim of female genital mutilation, or is at substantial risk of female genital mutilation, as defined in section 58 of chapter 265.

SECTION 6.  Section 51D of said chapter 119, as so appearing, is hereby amended by inserting after the seventh paragraph the following paragraph:-

For 51A reports specifically involving a child who is a victim of female genital mutilation, or is at substantial risk of female genital mutilation, as defined in section 58 of chapter 265, the multi-disciplinary service team may consist of a team of professionals trained or otherwise experienced and qualified to assess the needs of children who have undergone or are at risk of female genital mutilation, including, but not limited to, a police officer, as defined by section 1 of chapter 90C, or other person designated by a police chief, as defined in said section 1 of said chapter 90C, an employee of the department of children and families, a representative of the appropriate district attorney, a social service provider, a medical professional or a mental health professional. The purpose of said team shall be to determine whether the child is a victim of, or is at substantial risk of, female genital mutilation and to recommend a plan for services to the department that may include, but shall not be limited to, shelter or placement, mental health and medical care needs and other social services.

SECTION 7. Chapter 260 of the General Laws is hereby amended by inserting after section 4D the following new section:-

Section 4E. (a) A victim of female genital mutilation pursuant to section 58 of chapter 265 may bring a civil action for female genital mutilation. The court may award actual damages, compensatory damages, punitive damages, injunctive relief or any other appropriate relief. A prevailing plaintiff shall be awarded attorney’s fees and costs. Treble damages may be awarded on proof of actual damages if the defendant’s acts were willful and malicious.

(b) A civil action for female genital mutilation shall be commenced within 3 years after the date the plaintiff turns 18.

(c) If a person entitled to sue is under a disability at the time the cause of action accrues, such that it is impossible or impracticable for such person to bring an action, the time during which the plaintiff is under a disability shall toll the statute until the disability ceases.

(d) In the event that the plaintiff is still a child and under a disability, the failure of the child's guardian ad litem to bring a plaintiff's action within the applicable limitation period shall not prejudice the plaintiff's right to do so after his disability ceases.

(e) A defendant shall be estopped from asserting a defense of the statute of limitations if the expiration of the statute is due to the defendant inducing the plaintiff to delay the filing of the action, preventing the plaintiff from filing the action or threats made by the defendant that caused duress upon the plaintiff.

(f) Any legal guardian, family member, representative of the victim of female genital mutilation or court appointee may represent the rights of the victim of female genital mutilation, in the event the victim of female genital mutilation is deceased or otherwise unable to represent his own interests in court.

SECTION 8. Chapter 265 of the General Laws is hereby amended by adding the following section:-

Section 58. (a) As used in this section, the following words shall have the following meanings:-

“Child”, shall mean a person under the age of 18.

“Female genital mutilation” shall mean all procedures involving partial or total removal of the female genitalia or other injury to the female genital organs, or any harmful procedure to the female genitalia and includes –

   1. clitoridectomy, which is the partial or total removal of the clitoris or the prepuce;

   2. excision, which is the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora;

   3. infibulation, which is the narrowing of the vaginal orifice with the creation of a covering seal by cutting and appositioning the labia minora or the labia majora, with or without excision of the clitoris;

   4. all other harmful procedures to the female genitalia for non-medical reasons, e.g., pricking, nicking, piercing, incising, scraping and cauterizing.

; provided, however, “Female Genital Mutilation” shall not include surgery performed by a health care professional (i) when necessary to preserve or protect the physical health of the patient or (ii) for sex reassignment as requested by the patient.

“Health care professional”, shall mean a physician or other health care practitioner licensed, accredited or certified to perform specified health services consistent with law.

(b) Whoever knowingly: (1) commits female genital mutilation on a child; (2) removes a child from the commonwealth for the purposes of committing female genital mutilation; (3) assists a child in committing female genital mutilation on herself; (4) consents to (i) the commission of female genital mutilation on a child, or (ii) the removal of a child from the commonwealth for purposes of committing female genital mutilation; or (5) aids or abets another in (i) the commission of female genital mutilation on a child, or (ii) the removal of a child from the commonwealth for the purposes of committing female genital mutilation shall be guilty of the crime of female genital mutilation and shall be punished by imprisonment in the state prison for life or for any term of years.

(c) A business entity that aids or abets a person in committing the crime of female genital mutilation shall be punished by a fine of $1,000,000.

(d) It shall not be a defense to a prosecution pursuant to this section that (i) the child or the child’s guardian consented to the commission of female genital mutilation, or (ii) that female genital mutilation  is matter of custom, ritual or standard practice.

(e) A victim of female genital mutilation may bring an action in tort in the superior court in any county where a violation of this section occurred, where the victim resides, or where the defendant resides or has a place of business. Any person, including a business entity that knowingly violates this section shall be civilly liable for such an offense.

SECTION 9.  Section 63 of chapter 277 of the General Laws, as so appearing, is hereby amended by striking out, in lines 4 and 5, the words “or subsection (b) of section 50 of chapter 265” and inserting in place thereof the following words:- , subsection (b) of section 50, or section 58 of chapter 265.

SECTION 10.  Said section 63 of said chapter 277, as so appearing, is hereby further amended by striking out, in line 26, the words “or 50”, and inserting in place thereof the following words:- , 50 or 58.

SECTION 11.  Section 16D of chapter 278 of the General Laws, as so appearing, is hereby amended by striking out, in lines 6 and 7, the words “or 50 of chapter two hundred and sixty-five”, and inserting in place thereof the following words:- , 50 or 58 of chapter 265.