Last week, the first ever successful conviction for Female Genital Mutilation in the United Kingdom took place.  Whilst this is a welcome, if long overdue step, in tackling the scourge of FGM, our blog this week focuses on a different aspect of the case.  The defendant had attempted to silence, as well as possibly inflict pain, on social workers and police-officers investigating the family using “witchcraft”. Evidence was found in her home of fruit stuffed with curses, nails driven through cattle tongues and a picture of a social worker in pepper hidden in the bathroom.  At first sight, this might be dismissed as sensationalist detail, and an unwarranted distraction from the horrific child abuse at the centre of this story; without any shadow of doubt, the defenceless three year old who was brutally and deliberately hurt by the person who should have done everything in her power to protect her is the primary concern in this case.  Nevertheless, the wider context is relevant to understanding what was happening, with a view to more effectively preventing and dealing with future situations like this one.

It is clear from the evidence which has emerged, that the defendant was seeking to use “magical” means of hampering the work of police and social services, and possibly attacking the individuals working on the case.  Is behaviour of this kind something which the criminal law should address?  Whilst some observers might scorn the idea of witchcraft trials in the twenty-first century, if a person believes that they are hurting someone, or interfering with a police investigation, should it matter if the methods which they adopt are ineffective?   After all, if a defendant fires a gun at an arresting office, convinced that it still contains bullets, he or she will be liable for attempted murder if it turns out to be empty.  Similarly, if a poisoner mistakes the dose needed to injure or kill the victim, and they escape harm, the ineptitude of the would-be killer will not serve as a defence.  On this basis, could there be criminal liability for attempts to harm through witchcraft?

In short, it almost certainly depends what is meant by “witchcraft”.  We should stress at the outset, that we are using that term because it is the one generally adopted by the press, and also was the language adopted by some of the parties to this particular case.  However, we are certainly not talking about Wiccans, or other Pagans who might self-identify as witches. But beyond this, we would be inclined to suggest that it depends what steps the defendant has actually taken to bring about magical harm to their victim.  It is uncontroversial that an attempt to commit an offence can still attract criminal liability, even if there was zero objective possibility of the attempt succeeding, but it is equally true that liability will not arise, where the defendant has attempted to do something which was not a crime in the first place.

So, in tangible terms, if the defendant concocts a mixture which is chemically benign, but believed to be bring about death, and slips it into the victim’s coffee, then it seems at least plausible to argue that this is no different from adding a harmless liquid but mistakenly thinking it to be cyanide.   On the other hand, if the actions of the defendant simply amount to speaking or writing curses, it is difficult to see how this could constitute a criminal offence, as is not a crime to wish harm upon a third party, neither is it easy to see how seeking supernatural intervention in a private setting could amount to a criminal offence.  Article 9 of the European Convention on Human Rights gives individuals the right not just to hold beliefs, but to manifest them.  Undoubtedly, expressing beliefs through action can only be limited if there is an objective reason for the restraint, and it is hard to imagine that uttering or scrawling curses without an audience could be construed as damaging enough to society to justify punitive action.  Moreover, if this was treated as criminal behaviour, where could the line be drawn?  Would prayer be criminalised, or writing ‘never to be sent’ letters, intended as a personal, cathartic expression of anger or pain?

Of course, if words or actions are deliberately intended to cause someone fear or distress, especially if the motivation is to obtain some advantage (intimidating witnesses, or demanding money before the curse can be lifted) then this might be a different matter, but when an individual is trying to manipulate dark supernatural forces in secret, as the defendant in this case appears to have been doing, the position is very different.   Quite apart from the human rights considerations at play, criminalising such conduct would require the law to accept the possible efficacy of malign magic, which does not seem plausible in the contemporary world.

Related articles

FGM: Mother guilty of genital mutilation of daughter (BBC News 1/2/2019)

Parents tried to use witchcraft to cover up FGM of three year old daughter (The Independent 16/1/19)

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