COLUMN ONE : Ancient Traditions vs. the Law : Prosecutions of two immigrants for ‘female circumcision’ in France highlight an increasingly common cultural clash. Customs in one part of the world are viewed as repulsive in another.

The issue unfolding in a Paris criminal courtroom was not whether the two frightened African women cowering in the defendants’ box, neither of whom knew enough French to follow the proceedings, were guilty of mutilating their daughters.

Taky Traore and Oura Dacoure, both 31-year-old immigrants from the West African state of Mali, admitted paying another woman $30 each to cut genital parts from their 3-year-old daughters in 1989. On the stand, with the help of a Malian translator, they said they were only conforming to the ancient tradition of their homeland; that the act of “female circumcision” was something they had undergone, as had their mothers and grandmothers before them.

But the real issue before the French jury of seven women and five men was whether sentencing the women to prison would serve as a deterrent, not only here in France but in the parts of Africa where ritual female genital excision--usually cutting off the clitoris and labia minora--is primarily practiced.

“The action that you take today,” Prosecutor Jean-Claude Thin told the jury in his closing argument, “will be a message to the community at large.”

“It’s the feminists who want these women to go to prison,” argued Anne Carine Jacoby, a defense attorney, “but they didn’t go into the ghetto to see them and talk to them. If they go to prison, their children will be separated from their mothers.” Traore and Dacoure both have six children.

Across a wide belt of Africa, stretching from Senegal in the west to Somalia in the east, an estimated 80 million women have undergone the painful, sometimes crippling clitoridectomy--which some cultures consider a rite of initiation into womanhood but which also removes the erectile tissue that provides sexual pleasure.

At least one African country, Burkina Faso in West Africa, has a law on the books banning female genital excision. But France, which finds itself confronted with the practice in its large African immigrant population, is the only country in the world to have prosecuted mothers and fathers for submitting their daughters to it.

In two separate cases here in Paris recently, the father of one girl and the mother of another were ordered jailed by a French jury for allowing their daughters to be excised. Leaders in French organizations opposed to the practice of female genital excision hoped for more jail terms in the case against Taky Traore and Oura Dacoure, who went to trial last week in the ornate marble and gilt-ceilinged main criminal courtroom of the Palais de Justice.

However, after the two-day proceeding charged with emotional debate about cultural and ethnic relativism in a modern European state, the jury chose to be lenient, giving each of the women a five-year suspended sentence.

“A setback,” charged Linda Weil-Curiel, a French lawyer who pioneered the prosecutions here, using an existing French statute that classifies as a crime any violence to a child that results in the child’s mutilation.

Other European countries, notably Britain, Sweden and Switzerland, have enacted laws specifically banning female genital excision. To Weil-Curiel, the attorney for three organizations that are civil parties in the various excision cases, the criminalization of excision “is the same process that was used to raise rape to the level of criminal court in the 1960s in France.”

Although the arguments took place in a French courthouse--the same building, in fact, where Marie Antoinette faced her accusers during the French Revolution--similar courtroom cultural clashes have in recent years become increasingly common--and controversial--in countries with large immigrant populations.

Two years ago here in France, two Muslim schoolgirls, daughters of Arab immigrants from North Africa, sparked a furor when they won the right to wear scarves to their classrooms, despite a longstanding rule against hats and head coverings in the highly centralized French school system.

The parents of the two girls argued successfully that Muslim traditions required them to cover their hair. However, the scarf issue infuriated others who argued that the French tradition of secular education was just as important a cultural legacy.

In the United States, the “cultural defense” argument has surfaced in a wide variety of instances, ranging from cases involving the Laotian Hmong tribal practice of “marriage by capture” to the recent U.S. Supreme Court debate over ritual animal sacrifice in a Santeria church of South Florida with a congregation of recent Cuban immigrants.

In each case, local authorities are asked to weigh the competing pressures of immigrants’ cultural heritage against the laws and practices of their new home.

In some cases that do not involve injury or the loss of human life, the courts’ decisions are easier. In a 1989 Long Beach case, for example, a judge dismissed misdemeanor cruelty-to-animals charges against two Cambodian refugees who were accused of slaughtering a German shepherd for food.

Attorneys for the two men noted that several Asian countries, including Vietnam, China, South Korea and the Philippines, consider puppy meat a delicacy and that the two defendants were not aware of the conflicting American standards.

But in cases involving violence and human injury, the questions are murkier and their consequences graver.

In a 1988 Fresno criminal case against Hmong immigrant Kong Moua, the defendant said he was only conforming to his Hmong tribal tradition of zij poj niam-- marriage by capture--when he abducted a young Hmong immigrant woman from the Fresno City College Campus and forced her to become his bride.

The woman called police and accused Kong Moua of kidnaping and rape. However, after hearing the cultural defense mounted by the man’s attorneys, Fresno Superior Court Judge Gene M. Gomes accepted Kong Moua’s plea on the lesser charge of “false imprisonment” and sentenced him to a relatively short 120-day jail term.

No issue of cultural relativism versus Western legal tradition has aroused as much furor as the French prosecution and jailing of mothers and fathers in the excision cases.

“Prison should be the last resort,” said Daniel Jacoby, part of the father-daughter team representing Taky Traore. “You would think that in a country like France, we could come up with a solution other than prison.”

French authorities, meanwhile, defend their stand against excision on the grounds that ethnic heritage is no valid defense for those who maim children on French soil.

Kofi Yamgnane, France’s minister of state for social and racial integration, is a naturalized French citizen who emigrated from his native Togo 30 years ago, when he was a teen-ager. In a recent interview in the European edition of Newsweek magazine, Yamgnane supported the government stand.

“People have to understand that if they are going to live in a country,” he said, “they must respect the rules of that country. When we say ‘liberty’ in France, that means you don’t mutilate people. You don’t have that right. It may be one thing to do it in Africa, but not here.”

International human rights organizations involved in the growing movement to ban the practice of female genital excision look to the relatively tough French stand for support of indigenous women’s movements in Africa.

“These mutilations are all the same,” Weil-Curiel said. “They hold the girl by force. She screams and calls for her mother, and the blood flows. It is thanks to these trials that the taboo is finally lifting.”

Contacted in Gambia, where she is producing a documentary on female genital mutilation, American novelist Alice Walker said she hopes the French cases will have a “ripple effect” in Africa.

Walker’s 1992 best-selling novel, “Possessing the Secret of Joy,” delved into the violence and horrors of female genital mutilation as it is practiced in Africa and immigrant communities in Europe.

“Africans have always traveled,” Walker commented in response to a reporter’s telephone questions. “And of course news of the prosecutions and the sentences will reach Africans and will inevitably have ripple effects. Hopefully, in time, these movements of resistance to female genital mutilation in the West will help African sisters in Africa who are campaigning against this harmful tradition.”

Walker has little patience for those who defend the practice of female genital excision on cultural grounds and who oppose prosecution of parents in European courts.

“For African children living in Paris,” Walker said, “France is their home, and the government has a duty to protect all children from torture. Torture is not culture.”

According to Efua Dorkeno, founder of the London-based Foundation for Women’s Health Research and Development, which is active in the anti-excision movement, an estimated 40,000 African immigrant girls living in Europe are in danger of being submitted to genital excision by their parents.

When prosecution of excision cases began in France 10 years ago, most of those convicted were given suspended sentences rather than real jail time. However, the recent trend has been to send a stronger message to the African communities in France and abroad.

In 1991, a French jury sentenced a Malian woman accused of performing excisions on 17 children to five years in prison.

In January, a Gambian woman was the first mother to be given a jail term, a one-year sentence.

Earlier this month, a Malian man was sentenced to one month in prison after his two wives (polygamy is common in some African communities in Europe) testified in court that he had ordered them to have their daughters excised.

The trend toward jail terms has been greeted with enthusiasm by Madina Diallo, a Mali-born schoolteacher who has been fighting ritual excision since 1964.

“At the beginning, when they always gave the mothers suspended sentences,” Diallo said in her testimony, “I asked myself what was the point. When the first sentence of a year in prison was handed out, I felt France was taking an important step.”

Diallo told the jury that a prison sentence in the case of Traore and Dacoure would be “useful” in spreading the word to the African immigrant community.

“You have to have examples,” she said in an earlier interview with the newspaper Humanite Dimanche.

“Some women, when they return to their villages for vacation, are forced to flee in the night to escape in-laws who want to excise their daughters. Knowing that they risk punishment in France might help them resist.”

In the end, jurors at last week’s trial were apparently swayed by defense testimony portraying the two women as victims of cultural tradition and ignorance of French laws.

When a white-haired woman, whom they said they could not identify by name, knocked on the doors of their small apartment building in an impoverished neighborhood of Paris and asked if they wanted their daughters “cut,” they quickly agreed, they testified.

The excision was conducted with a sharp instrument, probably a razor blade, in the bathroom of the ground-floor Dacoure apartment. “I never knew it was illegal,” Dacoure told the jury.

The case would probably never have entered the French judicial system had it not been for Taky Traore’s husband, the one parent in the case who said he was opposed to the practice. Silamakan Traore, 53, who works for an office cleaning service, came home from work to find his 3-year-old daughter weeping in her blood-covered bed.

He immediately called the French public health service, which sent a pediatrician to the family apartment and notified the police. During the first day of the trial, he sat with his daughter Assa, now 6, in the front row of the large courtroom, watching as attorneys debated a jail term for his wife.