DETROIT — The U.S. Justice Department said a federal ban on genital mutilation should be rewritten to protect it from constitutional challenges after a judge in Detroit threw out charges against members of a Muslim sect.
The government recently withdrew an appeal of a decision by U.S. District Judge Bernard Friedman in the first such federal prosecution in the country. In a letter April 12 to Congress, Solicitor General Noel Francisco called genital mutilation an “especially heinous practice” but said the law needs to be changed to mesh with U.S. Supreme Court precedent.
“The Centers for Disease Control and Prevention estimates that half a million women and girls in the United States have already suffered FGM or are at risk for being subjected to FGM in the future,” Francisco said.
Genital mutilation, also known as female circumcision or cutting, has been condemned by the United Nations. The World Health Organization says the procedure carries no health benefits and can cause health problems.
Dr. Jumana Nagarwala was charged with performing it on nine girls at a suburban Detroit clinic, while others were charged with assisting her. She denies any crime and says she performed a religious custom for members of the India-based Dawoodi Bohra. The girls were from Illinois, Michigan and Minnesota.
Prosecutors alleged that Nagarwala may have subjected up to 100 girls to the procedure over a 12-year period.
In November, Friedman said the ban was unconstitutional. He found that Congress lacked authority to attack the practice under the Commerce Clause because the procedure is not a commercial activity. The judge said states could step in with their own laws or prosecute the practice under sexual battery and abuse.
“No state offers refuge to those who harm children,” Friedman wrote.
Francisco said he believes the federal law can be fixed by making genital mutilation a crime if someone crosses state lines to engage in it, among other steps.
Nagarwala’s attorney, Shannon Smith, said she’s pleased that the government’s appeal has been dropped. The doctor, who was arrested in 2017, and three other people still face additional charges, including conspiracy to obstruct law enforcement. (See earlier India-West story here: https://bit.ly/2TObGXD)
The Associated Press published a letter from the organization Equality Now, which expressed its disappointment in the Justice Department for not appealing Friedman’s ruling. Portions of the letter appear below:
This was the first case to be brought under a federal anti-FGM law introduced by Congress in 1996.
In making its decision, the DOJ incorrectly relies on U.S. District Judge Bernard Friedman’s ruling in the Eastern District of Michigan that Congress lacked authority, under the commerce clause, and the treaty clause, of the U.S. constitution, to adopt the law and that the power to outlaw FGM resided with individual states.
However, Judge Friedman applied the wrong standard of review in determining whether FGM is an issue that can be subject to federal laws, and his decision demonstrates a clear lack of understanding about the nature of FGM, which is a form of gender-based violence and child abuse and an economic activity.
FGM involves the partial or complete removal of external female genitalia for non-medical reasons. It has no health benefits and can have serious lifelong physical and mental health consequences including chronic infections; severe pain during urination, menstruation and sexual intercourse; psychological trauma; and increased risk of infertility, labor complications and newborn death. The procedure itself can also be fatal.
FGM occurs around the world and transcends religious, cultural, socioeconomic, and country lines. Regardless of the degree, severity, or motivation, it is a human rights violation linked to the oppression of women and girls, and there is no legitimate justification.
Judge Friedman’s ruling failed to take into account the widespread occurrence of FGM in the United States, where an estimated 513,000 women and girls who have undergone or are at risk of being cut.
The Department of Justice has indicated they agree with Judge Friedman that there is a problem with the current federal FGM law, and in compliance with the law (28 U.S. Code § 530D), a letter has been sent to the U.S. Congress informing them of concerns.
It now sits with Congress to respond by either defending the existing legislation or addressing a perceived flaw in the way that is was passed.
We are convinced that Congress has both the authority and responsibility to enact the FGM law in compliance with its international human rights obligations and that the decision by the DOJ not to appeal is simply wrong.
However, if the DOJ will not implement it in its current form then we call on Congress to respond swiftly to make the required amendments to ensure the federal FGM law is valid under both the treaty clause and the commerce clause, recognizing that 29 states do not currently have laws against FGM.
It is worth noting that the DOJ issued a press release on Feb. 6, 2019, for International Day of Zero Tolerance for Female Genital Mutilation, stating:
“Female genital mutilation/cutting (FGM/C) is a federal crime, and any involvement in committing this crime is a serious human rights violation, which may result in imprisonment and potential removal from the United States. Individuals suspected of FGM/C, including sending girls overseas to be cut, may be investigated by the Human Rights Violators & War Crimes Unit of Immigration and Customs Enforcement and prosecuted accordingly.”
We wonder what has changed between then and now that would compel the DOJ not to challenge Judge Friedman’s ruling.
America needs both federal and state laws and policies to effectively address FGM. This is not a single state issue. Girls are taken across state lines, as we saw in the Nagarwala case, or taken outside the country for purposes of FGM, and this requires a federal response. State laws and policies are needed for the prevention, education, and provision of services at the local level.