Judge Rules in Case Involving Genital Mutilation of Young Girls
U.S. District Judge Bernard Friedman, nominated by President Ronald Reagan, dismissed charges of female genital mutilation against eight people in a decision that found Congress had no authority to ban the procedure. Friedman ruled that Congress had no authority under the commerce clause to ban the genital mutilation of young girls because it doesn’t affect interstate commerce.
Female genital mutilation is a common practice in some parts of Asia, Africa, and the Middle East where the procedure is said to be part of a religious custom for young girls in a Muslim sect called the Dawoodi Bohra. The intent is to keep girls chaste until marriage, and to discourage adultery thereafter.
Prosecutors argued Congress had the power to pass the law under a treaty ratified by the Senate in 1992 which asks countries to provide civil and political rights to both men and women and calls for the protection of minors on a nondiscriminatory basis. Friedman found no logical relationship between the female genital mutilation ban and the treaty. If there was a relationship, Friedman said, “federalism concerns deprive Congress of the power to enact this statute.”
Addressing prosecutors’ second argument that the commerce clause gave Congress the authority to ban the practice, Friedman said female genital mutilation “cannot, by any stretch of the imagination, be classified as an economic or commercial activity.” Friedman cited a 2000 U.S. Supreme Court case, United States v. Morrison, which struck down the federal Violence Against Women Act. The law created a private right of action for victims of gender-based crimes.
The judge also argued there is not difference between female genital mutilation from other gender-motivated crimes of violence, and the Supreme Court found such violence is not economic and not included in the interstate market. “As despicable as this practice may be,” Friedman wrote of genital mutilation, “it is essentially a criminal assault, just like the rape at issue in Morrison.” He added, “As laudable as the prohibition of a particular type of abuse of girls may be,” prosecutors failed to show that the federal government had the authority to bring the charges, and continued, “Congress overstepped its bounds by legislating to prohibit FGM” because “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.”
The defendants in Friedman’s case included Dr. Jumana Nagarwala, the Michigan physician who performed the surgery on nine young girls, and Dr. Fakhruddin Attar, who allowed the surgery at his Michigan clinic. Also charged were four mothers who took their daughters for surgery, Attar’s wife, Farida, and a woman who assisted in the procedure.
Friedman left obstruction charges on the table with a prison term of up to twenty years against Nagarwala, the Attars, and one of the child’s mothers. Nagarwala also remains charged with conspiracy with intent to engage in illicit sexual conduct, which is defined as intentional touching of another person under age sixteen with the intent to abuse, harass or degrade the person. The charge carries a maximum sentence of life in prison.
Michigan is one of 27 states with laws that ban female genital mutilation. The law was passed too late to apply to the defendants in the case.