DETROIT - A federal judge in Detroit has ordered female genital mutilation (FGM) charges against eight people to be dropped on the grounds that the statute outlawing the procedure is unconstitutional.
The government alleged that Dr. Jumana Nagarwala performed the procedure on young girls from Michigan, Illinois and Minnesota. Dr. Fakhruddin Attar is accused of allowing Dr. Nagarwala to use his Burhani Medical Clinic in Livonia, Mich. to perform the procedure.
Farida Attar and Tahera Shafiq are accused of assisting Dr. Nagarwala in performing the procedure. Four other defendants, who are the mothers of the victims, brought their daughters to the clinic for the procedure. Four of the victims are residents of Michigan, three are residents of Illinois, and two are residents of Minnesota.
Count one charges all of the defendants with conspiracy to commit FGM, in violation of 18 U.S.C. § 371. Counts two through six charge all of the defendants with committing FGM and with aiding and abetting each other in doing so, in violation of 18 U.S.C. §§ 116, also known as the FGM statute.
Judge agrees Congress lacks authority to outlaw FGM
The defendants sought the dismissal of all of the FGM charges -- substantive, conspiracy, and aiding and abetting -- on the grounds that Congress lacked authority to enact such a statute against it.
"Defendants argue that Congress may exercise legislative authority only to the extent allowed by the Constitution, and that the only potentially applicable sources of congressional power -- the Necessary and Proper Clause and the Commerce Clause 3 – do not grant it authority to prohibit FGM," reads a court document filed Tuesday.
Judge Bernard Friedman has ruled that the FGM statute cannot be sustained under the "Necessary and Proper Clause" nor under the Commerce Clause, and has ordered counts one through six dismissed.
Meanwhile, Dr. Nagarwala also faced a charge of conspiracy to travel with intent to engage in illicit sexual conduct. Friedman also ruled in January to dismiss that charge, which could have landed Nagarwala in prison for life if convicted.
Four of the defendants also were charged with conspiracy to obstruct an official proceeding.
A closer look at 18 U.S.C. §§ 116, the FGM statute
According to the United States code, "whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both."
Here are the Congressional Findings:
“(1) the practice of female genital mutilation is carried out by members of certain cultural and religious groups within the United States;
“(2) the practice of female genital mutilation often results in the occurrence of physical and psychological health effects that harm the women involved;
“(3) such mutilation infringes upon the guarantees of rights secured by Federal and State law, both statutory and constitutional;
“(4) the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control;
“(5) the practice of female genital mutilation can be prohibited without abridging the exercise of any rights guaranteed under the first amendment to the Constitution or under any other law; and
“(6) Congress has the affirmative power under section 8 of article I, the necessary and proper clause, section 5 of the fourteenth Amendment, as well as under the treaty clause, to the Constitution to enact such legislation.”
In his court order, Judge Friedman wrote he reviewed this statute "with the greatest possible deference" and concluded that it is unconstitutional on the aforementioned grounds.
Michigan FGM charges unprecedented
These FGM charges filed in Michigan last year were considered unprecedented. Nagarwala, 44, was arrested April 12, 2017 and ordered detained April 17, 2017 as her trial was pending. The Attars were arrested as part of a federal raid at the clinic in Livonia. View the original criminal complaint here.
"According to the complaint, despite her oath to care for her patients, Dr. Nagarwala is alleged to have performed horrifying acts of brutality on the most vulnerable victims," acting assistant Attorney General Blanco said. "The Department of Justice is committed to stopping female genital mutilation in this country, and will use the full power of the law to ensure that no girls suffer such physical and emotional abuse."
Here is Friedman's court order filing on Nov. 20, 2018:
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