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.