A Federal judge in Detroit, Michigan, has ruled that the Federal United States law criminalising any form of female genital mutilation (FGM) is unconstitutional. The case arose when Federal law enforcement officials prosecuted members of an Islamic sect, the Dawoodi Bohra, for performing ritual cutting on the genitals of young girls. The defendants did not deny that the cutting took place, but contended that it was allowable under the principle of religious freedom, and further that the law prohibiting it was not constitutionally valid. It is significant that the judge did not make any ruling on the principal claims of the defendants, that the cutting was not mutilation but a harmless nick or scraping, and that it was required by their religion and permitted as an instance of religious freedom. The judgement was strictly on the constitutional and jurisdictional grounds that the US Constitution did not give Congress the power to legislate on this matter (essentially an instance of criminal assault) and thus that the law was ultra vires. The law was based on the power of Congress to regulate interstate commerce; but as the judge remarked, "There is nothing economic or commercial about FGM, As despicable as this practice may be, it is essentially a criminal assault" - and thus a matter for State law.
According to media reports, 27 of the US states have passed laws criminalising FGM. This does not necessarily mean that the practice is legal in the other 23, as instances could still be prosecuted under normal laws of assault, wounding, bodily harm etc, as occurred in Australia with the Graeme Reeves ("butcher of Bega") case. As the judge pointed out in his ruling, "counsel for the government argued ... that FGM is criminal sexual conduct because it involves unlawful touching and penetration. If that is correct, then FGM could already be prosecuted in every state under existing criminal sexual conduct statutes, to say nothing of battery or child abuse statutes." Because the charges have been dismissed on jurisdictional (technical legal) grounds, the substantive issues remain in contention: we may expect to see a great deal more debate as to whether the principle of freedom of religion extends to practices that inflict harm on the bodies of children, and whether general principles of human rights and bioethics apply to boys as much as to girls.
When the FGM law was presented to Congress in 1996, the proposer (Senator Reid) was emphatic that the fundamental objection to FGM was that it was a violation of a girls' human rights: “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.” Critics have since pointed out that these observations are equally applicable to circumcision of boys and that there were also grounds for finding the FGM law unconstitutional in the basis that it denied equal treatment to males.
Indeed the judge raised this very issue in rejecting the prosecution's contention that the law was valid because it sought to give effect to Article 24 of the International Covenant of Civil and Political Rights, ratified in 1992, and thus having the force of law within the USA. As he points out, the object of that article was to give certain rights to all children, irrespective of sex or other characteristics; it could not, therefore, be a basis for giving protections or privileges to girls only. The judge did not spell this out, but he left the implication that if the law had protected girls and boys equally it might have been valid.
The relevant paragraphs are on pp 5-6:
The treaty on which the government relies in the present case is the International Covenant on Civil and Political Rights (“ICCPR”), which the Senate ratified in 1992. Specifically, the government points to two provisions of this treaty: Article 3, which calls on the signatories to “ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant”; and Article 24, which states that “[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” The government argues that Congress, by enacting the FGM statute, acted reasonably to carry out these two treaty obligations.
The Court rejects the government’s argument for two reasons. First, there is no rational relationship between the FGM statute and Article 3, which obligates member states “to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.” This article seeks to ensure equal civil and political rights (e.g., the freedom of expression, the right to participate in elections, and protections for defendants in criminal proceedings) for men and women, while the FGM statute seeks to protect girls aged seventeen and younger from a particular form of physical abuse. There is simply no rational relationship between Article 3 and the FGM statute. The latter does not effectuate the purposes of the former in any way.
The relationship between the FGM statute and Article 24 is arguably closer. As noted, that article states that “[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Still, the relationship between the FGM statute and Article 24 is tenuous. Article 24 is an anti-discrimination provision, which calls for the protection of minors without regard to their race, color, sex, or other characteristics. As laudable as the prohibition of a particular type of abuse of girls may be, it does not logically further the goal of protecting children on a non-discriminatory basis.
In a major blow to the government, a federal judge in Detroit has declared America's female genital mutilation law as 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 removed three mothers from the case, 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 it's a matter for the state's 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 longstanding 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. 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.
Gina Balaya, spokesperson for the U.S. Attorneys office, said in a statement: "We are 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 co-defendants to dismiss the genital mutilation charges, claiming the law they are being prosecuted under is unconstitutional. More specifically, 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 genital mutilation, but rather engaged in a benign religious ritual that involves only a scraping of the genitals.
"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, but rather performed a benign religious procedure that involved nicking, not cutting. "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, Mass. to ban genital cutting 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 harms 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 okay 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’a human rights. It's a form of gender violence … This is cultural violence," 35-year-old Taher said.
The 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 and cried and bled afterward. 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, including one who was given Valium ground up in liquid Tylenol during her procedure; and three Illinois girls.
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. 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 efect 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. Senator 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.”
The female genital mutilation statute carries a maximum punishment of five years in prison. The defendants, meanwhile, also face up to 20 years in prison on obstruction of justice charges, if convicted. The most serious charge against Nagarwala — conspiracy to transport a minor "with intent to engage in criminal sexual conduct" — carries a maximum life sentence. Four mothers also have been charged, accused of subjecting their daughters to the unlawful procedure. 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 case is set to go to trial in April 2019.
Tresa Baldas. Judge dismisses female genital mutilation charges in historic case. Detroit Free Press 20 November 2018.
Brian Earp analysis the background and implications of the ruling on Youtube talk
Brian Earp. Does Female Genital Mutilation have health benefits? The problem with medicalizing morality. Quilllette, 15 August 2017.
Robert Darby. Female genital cutting: harm, human rights and the possibility of a sex-neutral approach. Quillette, 3 March 2016.