A federal district court judge has found the federal law barring female genital cutting unconstitutional. The basis for the judge’s finding is that a federal law against criminal activity infringes on an area that is the states’ province to regulate and is not within the interstate commerce clause exception, which in the past has been interpreted very broadly.
Accordingly, the Detroit-based judge dismissed charges against two Michigan doctors and six others who were being prosecuted for violating the law, which came into effect in 1997.
In an interesting coincidence, the judge who decided the case, Bernard Friedman, is the same judge Steven and colleagues had in a class action circumcision case in Queens, New York in 2002. Steven wrote about the 2002 case in his 2006 symposium presentation, “A Treatise from the Trenches: Why Are Circumcision Lawsuits So Hard to Win?”, which can be found here.
Tresa Baldas, Detroit Free Press
November 20, 2018
In a major blow to the federal government, a judge in Detroit has declared America’s female genital mutilation law unconstitutional, thereby dismissing the key charges against two Michigan doctors and six others accused of subjecting at least nine minor girls to the cutting procedure in the nation’s first FGM case.
The historic case involves minor girls from Michigan, Illinois and Minnesota, including some who cried, screamed and bled during the procedure and one who was given Valium ground in liquid Tylenol to keep her calm, court records show.
The judge’s ruling also dismissed charges against three mothers, including two Minnesota women whom prosecutors said tricked their 7 -year-old daughters into thinking they were coming to metro Detroit for a girls’ weekend, but instead had their genitals cut at a Livonia clinic as part of a religious procedure.
U.S. District Judge Bernard Friedman concluded that “as despicable as this practice may be,” Congress did not have the authority to pass the 22-year-old federal law that criminalizes female genital mutilation, and that FGM is for the states to regulate. FGM is banned worldwide and has been outlawed in more than 30 countries, though the U.S. statute had never been tested before this case.
“As laudable as the prohibition of a particular type of abuse of girls may be … federalism concerns deprive Congress of the power to enact this statute,” Friedman wrote in his 28-page opinion, noting: “Congress overstepped its bounds by legislating to prohibit FGM … FGM is a ‘local criminal activity’ which, in keeping with long-standing tradition and our federal system of government, is for the states to regulate, not Congress.”
Currently, 27 states have laws that criminalize female genital mutilation, including Michigan, whose FGM law is stiffer than the federal statute, punishable by up to 15 years in prison, compared with five under federal law. Michigan’s FGM law was passed last year in the wake of the historic case and applies to both doctors who conduct the procedure, and parents who transport a child to have it done. The defendants in this case can’t be retroactively charged under the new law.
Gina Balaya, spokesperson for the U.S. Attorneys Office, said the government is reviewing the judge’s opinion and will make a determination whether or not to appeal at some point in the future.
Friedman’s ruling stems from a request by Dr. Jumana Nagarwala and her codefendants to dismiss the genital mutilation charges, claiming the law they are being prosecuted under is unconstitutional.
A victory for the defendants
The defendants are all members of a small Indian Muslim sect known as the Dawoodi Bohra, which has a mosque in Farmington Hills. The sect practices female circumcision and believes it is a religious rite of passage that involves only a minor “nick.”
The defendants have argued that “Congress lacked authority to enact” the genital mutilation statute, “thus the female genital mutilation charges must be dismissed.” They also argue that they didn’t actually practice FGM, but rather performed a benign procedure involving no cutting.
“Oh my God, we won!,” declared Shannon Smith, Nagarwala’s lawyer, who expects the government to appeal. “But we are confident we will win even if appealed.”
Smith has maintained all along that her client did not engage in FGM.
“Dr. Nagarwala is just a wonderful human being. She was always known as a doctor with an excellent reputation,” Smith said. “The whole community was shocked when this happened. She’s always been known to be a stellar doctor, mother, person.”
For FGM survivor and social activist Mariya Taher, who heads a campaign out of Cambridge, Massachusetts, to ban FGM worldwide, Friedman’s ruling was a punch to the gut.
“Oh my God, this is crazy,” said Taher, stressing she fears the ruling will put more young women in harm’s way. “Unfortunately, this is going to embolden those who believe that this must be continued … they’ll feel that this is permission, that it’s OK to do this.”
Taher, who, at 7, was subjected to the same type of religious cutting procedure that’s at issue in the Michigan case, said she doesn’t expect laws alone to end FGM. But they are needed, she stressed.
“This is a violation of one person’s human rights. It’s a form of gender violence. … This is cultural violence,” 35-year-old Taher said.
Yasmeen Hassan, executive global director for Equality Now, an international women’s rights organization, agreed, saying the ruling sends a disturbing message to women and girls.
“It says you are not important,” Hassan said, calling the ruling a “federal blessing” for FGM.
“In this day and age, for FGM to still occur — and a federal government can’t regulate this with a human rights violation — is very bizarre,” she said. “This is not what I expected. It’s so not what I expected.”
Hassan added: “I don’t think it’s possible for the federal government not to appeal this case. My feeling is that it will go all the way to the Supreme Court.”
Friedman’s ruling also drew the ire of Sen. Rick Jones, R-Grand Ledge.
“I’m angry that the federal judge dismissed this horrific case that affected upwards of a hundred girls who were brutally victimized and attacked against their will,” Jones said in a statement, noting 23 states don’t have FGM laws.
“This is why it was so important for Michigan to act. We set a precedent that female genital mutilation will not be tolerated here, and we did so by passing a state law that comes with a 15-year felony punishment,” Jones said. “I hope other states will follow suit.”
The federal statute at issue states: “Whoever knowingly circumcises, excises or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person” under the age of 18 shall be fined or imprisoned for up to five years, or both.
Prosecutors argue Nagarwala, the lead defendant, did exactly that when she cut the genitals of two 7-year-old Minnesota girls who were tricked into the procedure in 2017 by their mothers.
They said Nagarwala did this with the help of Dr. Fakhuruddin Attar, who is accused of letting Nagarwala use his Livonia clinic after hours to carry out the procedures; and his wife, Farida Attar, who is accused of assisting Nagarwala in the examination room during the procedures and holding the girls’ hands.
Prosecutors allege that Nagarwala may have subjected up to 100 girls to the procedure over a 12-year period, though they have cited nine victims in the case: two 7-year-old girls from Minnesota; four Michigan girls ages 8-12, and three Illinois girls.
Law deemed unconstitutional
Nagarwala has long maintained that she committed no crime and that she was charged under a law that slid through Congress without proper vetting.
“The law was never debated on the floor of either chamber of Congress nor was there ever any legislative hearing addressing the justification or need for the federal law. Instead, all that exists is the criminal statute itself,” defense lawyers have argued in court documents, claiming the driving force behind the legislation was one lawmaker’s belief that the prohibited conduct was ‘repulsive and cruel.’ “
But the Constitution demands more than that, the defense has argued, claiming Congress could not have passed a female genital mutilation ban under the Commerce clause because “notably, here, the activity being regulated has absolutely no effect on interstate commerce.”
The judge agreed.
“There is nothing commercial or economic about FGM,” Friedman writes. “As despicable as this practice may be, it is essentially a criminal assault. … FGM is not part of a larger market and it has no demonstrated effect on interstate commerce. The commerce clause does not permit Congress to regulate a crime of this nature.”
The prosecution disagrees, arguing genital mutilation is an illegal, secretive and dangerous health care service that involves interstate commerce on a number of fronts: text messages are used to arrange the procedure; parents drive their children across state lines to get the procedure; and the doctor uses medical tools in state-licensed clinics to perform the surgeries.
In defending the statute, prosecutors also have noted that FGM is condemned worldwide — it’s illegal in more than 30 countries. And they’ve cited the legislative history of the law, along with U.S. Sen. Harry Reid’s comments in pushing for a genital mutilation ban.
“I want everyone within the sound of my voice to understand that what I am going to talk about here today does not deal with religion and it does not deal with sex. It deals with violation of a person’s human rights. It deals with degradation of women and young girls. It deals with the most inhumane thing a person can imagine,” Reid stated in 1994.
On September 30, 1996, the female genital mutilation law was signed, with Reid stressing: “There is no medical reason for this procedure. … It is used as a method to keep girls chaste and to ensure their virginity until marriage, and to ensure that after marriage they do not engage in extramarital sex.”
Nagarwala, meanwhile, is still facing a conspiracy charge and an obstruction count that could send her to prison for 20 years, along with the Attars. If convicted of conspiracy, Nagarwala faces up to 30 years in prison.
The case is set to go to trial in April 2019.