|Title:||The summation of Prosecutor Commaret|
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The summation of Prosecutor Commaret
Evanston, IL: Program of African Studies, Northwestern University
no. 3, pp. 1-3, 7, 1992
The Summation of Prosecutor Commaret
Reprinted from Drait et Cultures: Revue semestrielle d'anthropologie et d'histoire, no. 21, 1991.
An unusual case, this. For beyond the persons and acts accused, there is a clash of ideas: law vs custom, the unacceptable vs the tolerable, the universality of certain values vs cultural relativism.
For beyond the questions which will soon be put to you lie tensions born of recent changes within cultures and also of their new proximity; born of the recent evolution in our western societies of the place of the child and the woman at the heart of the collectivity and the couple; born of an acknowledgement of their dignity, of their rights as well as their duties. Tensions born as well of proximity, the interference of dissimilar cultures, which nevertheless—due to immigration—live together on the same land, under the same laws, without having traveled the same path.
In this trial—one of four dimensions: of time and space, as well as of man and his acts—there are two immediately apparent certainties, while several questions persist.
Two certainties. First: born in Paris between 1976 and 1983, the six daughters of the couple Sory Coulibaly and Sémité Diarra were excised on French territory; the first five daughters during 1982, they claim, the last upon two medical visits to the Centre PMI in the Nineteenth Arrondissement of Paris, in December of 1983 or January of 1984.
These six children underwent a clitoridectomy along with—for four of the girls—the ablation of the labia minora. The act before you then is one of the three types of excision practiced in Africa and the Near East; an intermediary form between Sunna circumcision and infibulation.
The second certainty: Sémité Diarra, the wife of Coulibaly, mother of the six children, admits to having instigated these interventions out of an adherence to the traditions of the Kaye region of Mali where she is from, she herself also being excised.
Also, she personally assisted the exciseuse by holding spread her daughters' legs during these operations.
So, there are these two certain facts. But there remain four questions—posed again and again in the course of these debates—which can be formulated as follows:
- Is Ramata Keita, although she denies it, the exciseuse of the little girls from Mali?
- Sory Coulibaly, their father, did he finance these excisions as a silent partner?
- Does excision fall under the jurisdiction of the French penal code? That is to say, does it constitute here on our soil a voluntary, illegal, and mutilating act of violence?
- If yes, how should it be sanctioned?
I propose to go through these questions with you, one by one, in light of the information gathered during these proceedings.
I) Is Ramata Keita the exciseuse of the six small girls?
Draped in dignity, emerging from behind a wall of silence only to utter contradictory statements, she denies, as you know, any active participation in these medical interventions. A number of facts were assembled against her by the prosecution, however, during the course of these proceedings before the bar.
In the first place, Ramata Keita was formally and repeatedly accused by Sémité Coulibaly all through the instruction and arguments. The mother of the six victims did not conceal having called on her in full knowledge and intent: knowing Keita's specialty, the mother contacted her to perform the excision of her six children. Ramata Keita accepted. She appeared at the domicile of the Coulibaly family on two occasions for that purpose. She is the one who, to use the African expression, "cut" the six little girls.
The repeated accusations of Sémité Coulibaly constitute the first element of the prosecution's case.
These accusations are confirmed by the discovery of a particularly informative notebook in the home of Ramata Keita—which constitutes the second basis of the accusation.
Mme. Coulibaly had originally refused to divulge the name of her daughter's exciseuse. This complicit silence is classic among all parents who, to this day, have appeared before French courts for such acts.
Actually, Ramata Keita was questioned in June of 1984, the day following the death by hemorrhage of an excised infant of three months. Still in shock, the parents of this last victim agreed to name Ramata Keita as the one who had performed the fatal clitoridectomy. Warrants were immediately issued for the search of the home of the accused, allowing for the seizure of a razor blade and a tube of healing ointment: articles which perhaps mock the gravity of excision, but are part of the known tools of the trade.
The notebook contained the identities and telephone numbers of eighteen African families who had excisions performed on their daughters. Among these eighteen names was that of Mme. Coulibaly next to her telephone number. Ramata Keita never provided the least verifiable explanation of the circumstances or reasons for the appearance of this unusual notation in an engagement book whose ownership she attributed successively to her nephew, her husband, her sister. The appearance of this name confirms the accusations against her lodged by Mme. Coulibaly.
Furthermore—and this being the third element of the case—you will remember the testimony of Marcelle Bardin and Alan Gosseret. They told of the constant visits made to the residence of the accused by African women burdened with children, of their often-heard cries—to the point that M. Gosseret almost alerted the police—cries of suffering children, and the smell of incense coming from these meetings that surely indicated preparations for magic.
I will add that beyond these accusations, seizures, and testimonies, the interpreter for the accused during the psychiatric examination by Dr. Ehrilich emphasized that Ramata Keita belonged, as did her husband, to the caste of the former captives, or slaves, analogous in customary practice to the caste of the blacksmiths.
This is important: it constitutes a fourth point of argument.
You know that in Mali excision can only be practiced by women of the blacksmith caste. The members of this caste benefit from a considerable prestige in the tribe. They alone have the authority to circumcise and excise.
Their power and prestige are heightened by the very lucrative nature of their activities: asked by Dr. Troisier who performed the gynecological exam of the six girls, Sémité Coulibaly acknowledged that the fee for the exciseuse's operation was two hundred francs.
Curiously, the same fee was mentioned by the parents questioned in the course of the proceedings in Bobigny. Fofana Traore indicated last year before the Appeals Court of Paris that the operation cost three hundred francs.
An attractive financial operation, this, when frequently repeated.
Now, a sum of more than twenty thousand francs in cash was discovered at the residence of Ramata Keita, in addition to the numerous money order stubs addressed to a certain Bagdassarian, for the tidy sum of 67,000 francs.
Ramata Keita does not work. Her husband, a worker at Citroën, earned at the time four thousand francs a month. From where, then, did these considerable sums come? From another business in African fabrics, one might object? This business existed, to be sure, but in my view it served only to recycle the money from the practice of excision. You have the proof in the file, in the statement of Bagdassarian, who was the Keitas' supplier of cotton textiles.
Until the questioning of Mme. Keita, the purchases of the couple represented, on average, an annual sum of between twenty thousand and fifty thousand francs.
In the year which followed the indictment and temporary detention of Mme. Keita, the figure fell to three thousand francs.
This drop-off in activity demonstrates that the fabric business served for, if I may say, the laundering of the money from the excisions.
Therefore, if respect for custom implies a certain financial sacrifice relative to the meagerness of the incomes of the families who have daughters excised, the persistence of these practices is particularly lucrative for those of this profession.
It seems that the gulf which in past years separated the abortionists—the "angel makers"—from their clientele of women in distress, appears again between the exciseuse and those who solicit her service. You cannot, I think, consider in the same light, nor make the same value judgment of, on the one hand, the Coulibalys' motives of custom, and, on the other, the mercenary motives of Ramata Keita—that is, the profits she netted, thanks to the repeated and habitual practice of excision. This point seems of capital importance. It is the fifth and final point of argument.
II) Since the exciseuse must be paid, since six successive excisions represented for the Coulibalys a total expenditure of at least 1,200 francs, how could one imagine—even if excision is in all appearances primarily the affair of women, from which men are excluded—how could one imagine that Sory Coulibaly, the father of these children, the only means of support in the household, would not have been consulted, then approached to finance the operations before they were performed?
He had to have given his wife the agreed sum of 1,500 francs the first time, 200 the second, considerable sums—one-sixth his salary—for one responsible for a large family and who must also show his loyalty to those of his clan remaining in the village. Would he have spent such a sum without first inquiring about its use, and therefore without agreeing knowingly and in advance that his children be excised?
All the reports done on excision (I am thinking in particular about the Hoksen report) proved the necessary complicity on the part of the heads of families in perpetuating these practices. Not only because they finance them but equally because they are, in reality, the only beneficiaries—assuring in this way the fidelity and submission of their wives and the marriageability of their daughters, thereby ensuring receipt of the bridewealth. Animata Diop, the young Malian woman who fled her family and country to escape excision, told you how involved the fathers were and how much they intervened in this domain.
Actually, within African families fathers exert an undivided power; with the elders, they make all the important decisions regarding the well-being, health, education, and future of their children. In Mali, children do not belong to their mother. In the case of divorce, they are automatically entrusted to the husband's family.
Sory Coulibaly is complicit through financial assistance and through instructions he gave, in the mutilations performed on his daughters even if he did not physically participate. To my mind, it would be a real injustice, a sort of dishonesty, to cast the weight of this act solely on women who are its first victims.
III) The material, moral, or financial responsibility of each of the accused in this trial thus enumerated, the time has come to leave the fairly smooth ground of the bare facts, and to step fully into the legal debate which borders on the societal one.
Excision, an African tradition, experienced under group pressure as a necessary means of inclusion in society, does it not, however, constitute on French soil, an illegal and mutilative act of violence, prohibited and outlawed by the penal code?
- 1) It is a practice geographically circumscribed to the tropical countries, principally in Africa, and which affects another 100 million women in the world. The West was spared. Not totally—why hide it—since it also occurred in very small numbers in the West: in the ridiculous belts of which Rabelais wrote, or in the treatment of female hysteria within the twentieth century.
- It is a custom which is animist—pre-dating the three great revealed religions—begun more than three thousand years ago if one believes the few archaeological discoveries of excised mummies on the bank of the Nile and the descriptions of the geographer Strabo in 25 BC. Islam neither prescribes nor proscribes excision: it has come to accommodate it in certain lands, without, however, practicing it systematically. Saudi Arabia and North Africa, notwithstanding being Muslim countries, do not practice excision.
- With no religious basis, excision is in France—as in several African countries—stripped of all meaning. Practiced at a time very close to birth, excision neither precedes nor accompanies the ceremonies and instructions of puberty. It is no longer a rite of passage.
- Therefore, once all religious or ritual cover has been removed—limited as it is today only to those societies that do not possess writing, and which have only the body on which to inscribe, indelibly, the societal scars determined by the individual's place within the group—excision can be seen in its true nature: that of a marking (the word is from Dr. Ehrlich).
- In the foundation myths of the Soninké people, the clitoris is considered the evil male member that the female sex carries within at birth. A sort of vestigial penis, it must therefore be removed to promote coupling and fertility.
- The ablation of the clitoris then constitutes a fashioning, a shaping of the female body in accordance with its sole function of reproduction; a sex reduced to the state of receptacle, rid of even the slightest desire for autonomy or for power.
- Excision is a marking of inferiority, but also a mutilating and dangerous wound. Who would dare deny it? All the doctors who have come before the bar in succession were in agreement on its injuriousness.
- A painful practice: one would have to see, ladies and gentlemen of the jury, the intolerable images of an excision performed on the ground in a public thoroughfare, without hygiene, and one would have to hear the cries of the baby to be convinced of the violence inflicted on a defenseless being.
- A mutilative practice: excision is just that, semantically, since it is the complete ablation of a medically healthy organ.
- A dangerous practice for the health of the child, the wife, the mother, dangerous in the long list of risks and complications: in the short term, risks of infection from tetanus or HIV, hemorrhage, shock; later, frequent complications of a gynecological, obstetrical, even a psychiatric nature, when these women realize that they will never again be like other women.
- 2) That is what can be said about excision and that is why—progressively, in France, in Europe, and internationally, but also in Africa itself—this unfounded and dangerous manipulation of the female body stirs, little by little, step by step, reprobation and interdiction.
- In France, criminal courts—and notably the Criminal Division of the Supreme Court—have since 1983 continually reaffirmed that the ablation of the clitoris constituted a mutilation liable to criminal penalities following article 312 of the Penal Code.
- You will be told that to have an infraction take place presupposes three conditions which are unfulfilled here: a knowledge of the law, the desire to harm, and the absence of any external constraint.
- Let us review quickly these three conditions.
- a) The prior knowledge of the law. Yesterday evening, Mme. Weil-Curiel, gave you a blow-by-blow of the somber chronology of excisions performed in France and the cortege of little girls who died for not having been protected sooner. She related to you the efforts taken by Malian associations to put an end to these needless deaths.
- You remember these words written by African women and distributed in immigrant residential areas, "certain of you are determine to confront the authority of your host country. Those who do risk legal action." This was in June 1983.
- And despite these deaths—despite the solemn warning of their community, despite the admonition of Dr. Burchard—still the Coulibalys persisted. She had Asha excised soon after, although they were no longer ignorant of the law. Only the intervention of court authorities protected the three youngest girls.
- b) You will also be told that without the will to do harm, there is no violation of the law. That is not exactly so. That is to bend the sense and spirit of the law.
- Certainly, the accused did not want to harm their children, but to have them rooted in their culture. Such was their objective, but the motive does not nullify the violation of the law. It may ultimately allow consideration of extenuating circumstances.
- Do not confuse the motive, on the one hand, and the intention to violate the law of the land on the other.
- c) You will also be told that among the Soninké people the custom of excision is mandatory, and one will try to lead you to decide that those who act under an external constraint cannot be punished. But this constraint, this cultural pressure, was it irresistible? No. Not at the moment that the Malian immigrant associations were themselves recommending a complete stop to these practices on French soil. This pressure was not irresistible since other women, other Malian families learned how to resist it. And then, a constraint presupposes not only that it be irresistable but also unforeseen—which is to say that, to constitute a justifying factor, the constraint must impose itself on you unexpectedly, suspending all reflection. Is it in this realm that we find ourselves? Surely not. Why? Because excision is not a crime committed without having had the time to think. It is a crime prepared in advance, organized, anticipated; it is not an unforeseeable crime, it is a premediated act.
It is fitting, then, to find the accused guilty; moreso since we are neither the only ones, nor the first, to condemn these hold-overs from another age: Great Britain, Sweden, Switzerland prohibit excision in texts specifically drawn up for that purpose. African leaders themselves, without disavowing their cultural identity, are beginning to set in motion the eradication of these archaic practices in their own territories. Sudan, Egypt, Kenya have provided themselves the legislative tools to prohibit infibulation. Other countries, like Senegal or Mali, have chosen the path of information and education.
There are fewer excisions in the wealthy areas of Bamako. Excisions were never performed in Timbuktu or Gao.
How could one justify that excisions be performed with impunity in Paris?
Who among you could accept that while a custom fades out in its native land, it should be justified here to the detriment of the idea of the equality of all before the law? And recalling the pertinent words of Mme. Zviloff, I ask myself, I ask you: would you accept the death of a young widow, burned alive in Paris, simply because she was born on the Indian sub-continent and because it so happens that there one does not survive one's husband? Would we accept that a young Muslim woman be put to death because she violates the Koranic law against cohabitation with a man of another religion? Will we allow the vendetta?
Do not be confused about your duty: you are not ethnologists, you are not impassive observers—you are judges to whom has been entrusted the responsibility to decide what is acceptable and what is not.
Now, let us state it plainly, excision is unacceptable on ethical, hygienic, and legal grounds.
Who among you could consider that respect for difference infers passivity, itself the source of wounds and degradation?
Who would not understand that to condone such practices is to condemn many African children born and living in France—because they are black—to not benefit at all from French law; that is, to trample underfoot their developing self-respect, their liberty to make future choices.
In ratifying the international convention on the rights of children, did we not promise to protect all children living on our soil, without discrimination, to protect them from physical or moral violence, even if exercised at the initiative of their own parents?
Are we not committed to consider their "higher interest"?
To acquit would be to admit the unacceptable in the name of exoticism. I know that you will not do that.
IV) For all that, the penalty—a result and extension of the declaration of guilt—should be proportional to the act committed, to the culpability involved.
The infraction, the repeated crime—for essentially lucrative purposes—committed by a professional more concerned with her financial interests than with the beliefs of her tribe—and undoubtedly better informed than others because more concerned by the prohibition against her secret activity—this crime should be severely punished.
The struggle against sexual mutilations must necessarily focus on the dissuasion of potential exciseuses, who are driven by the venal nature of their work.
Only a firm repression of the activities of these women can discourage others from taking their places.
It must be made known tonight, in the African neighborhoods, that excision is a livelihood which risks incurring a very heavy penalty.
This is why I demand a sentence of five years criminal confinement.
On the other hand, I come not to ask you to cut the Coulibalys off from the social fabric but to support their acculturation. They let their six daughters be mutilated because they had not been sufficiently convinced of the uselessness and harmfulness of excision.
Is it appropriate to imprison them? Is it appropriate to deprive fourteen children of their parents, excellent teachers? I think not.
Therefore, perhaps, you will be tempted to condemn them—as other criminal juries have done before—to a suspended prison sentence. I will admit to you that these verdicts only partially satisfy me.
Without an accompanying mechanism of oversight, a simple suspended sentence is nothing but a slap on the wrist. Not a cure, it is simply a placebo. For what will the Coulibalys retain tonight of such a decision? That they are free, therefore in some way relieved of responsibility. A singular misunderstanding!
Has the moment not come to make some progress by looking at the wide range of sentencing options for a clearer and more watchful punishment that condemns while reinstating, that prohibits and reintegrates, that broadens the verdict with a sensitivity to cultural differences?
What, then, were these men and women who appeared before the bar ardently calling for—without being able to formulate it—when they admitted the senselessness of these practices while appreciating their particular circumstances? They hoped for a better social and cultural integration—that is to say, a sort of common and accepted general education which might open the path to literacy, to health education, to intercultural dialogue, and—who knows, maybe one day—to the assimilation of the values to which we are so deeply attached.
This sentence does not exist, properly speaking, in our legislation. But if you agree with my analysis, you can begin to draw up its first legal contours. How? In sentencing the Coulibalys to a three-year suspended prison term with probation. The sentencing judge will have them under his authority at the end of the trial and during the time period set by you. He will mobilize around them the welfare and support organizations necessary to establish dialogue, to further mutual understanding, and to enjoin the Coulibalys to submit to educational instruction, pursuant to article R.58-3 of the Penal Code of Procedure.
Your verdict would then have two dimensions: a firm message when excision is a business, but it would also be a lesson showing imagination in a case where the law clashes with a custom solidly anchored in the beliefs of a group. Firmness and imagination. Is it not thus, ladies and gentlemen of the jury, that the law will make progress?
Note: We gratefully thank Madame Commaret who reviewed and completed the transcript of the trial. Without claiming to be exhaustive, the text presented here expresses as faithfully as possible her oral summation.
©Copyright 1991 by Droit et Cultures: Revue semestrielle d'anthropologie et d'histoire, Centre Droit et Cultures, Université de Paris X-Nanterre. Translated and reprinted by permission. We wish to thank Mette Shayne, librarian with the Herskovits Library of African Studies, Northwestern, for bringing this issue of the journal to our attention.
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