A federal judge in Detroit has tossed out female genital mutilation charges against members of a Muslim sect, arguing that Congress “overstepped its bounds” in prohibiting the practice.
The 22-year-old federal ban on female genital mutilation went untested until April 2017, when Dr. Jumana Nagarwala (pictured above) of Northville, Michigan was arrested on charges of conspiracy that resulted in the genital mutilation of at least nine girls, though possibly up to 100.
The Detroit News reports that Nagarwala as well as three mothers accused of subjecting their daughters to the practice were cited in the case, and are members of the Dawoodi Bohra Muslim sect from India. In some cases, the mothers deceived their daughters into thinking they were traveling to Detroit for a vacation weekend, but were then taken to Nagarwala’s Livonia clinic to undergo the religious ceremony.
Court records reviewed by Detroit Free Press offer graphic insight into what occurred in the Michigan clinic, revealing that some of the girls, who were under the age of 10, cried and bled during the operation, while one was ordered to take Valium mixed with Tylenol to ease the pain.
While Nagarwala and his alleged assistant, Fakhuruddin Attar, still face conspiracy and obstruction charges that could send them to prison for 20 years, U.S. District Judge Bernard Friedman ruled Tuesday that Congress’ 1996 Female Genital Mutilation Act is unconstitutional.
“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,” he wrote in his opinion, which can be read in full at The Detroit News.
“Congress overstepped its bounds by legislating to prohibit FGM [female genital mutilation],” he continued. “FGM is a ‘local criminal activity’ which, in keeping with longstanding tradition and our federal system of government, is for the state to regulate, not congress.”
In particular, Friedman took issue with the law’s use of the Commerce Clause to argue for female genital mutilation’s illegality, writing in his opinion that “there is nothing commercial or economic about FGM.”
The prosecution tried to argue that female genital mutilation is a health care service that takes advantage of medical resources in licensed clinics, but Friedman disagreed.
“Nor has the government shown that FGM itself has any effect on interstate commerce or that a market exists for FGM beyond the mothers of the nine victims alleged in the third superseding indictment. There is, in short, no rational basis to conclude that FGM has any effect, to say nothing of a substantial effect, on interstate commerce,” Friedman argued.
Notably, Michigan and 27 other states have passed bans on the gruesome practice, and Michigan’s statute alone makes female genital mutilation punishable by up to 15 years in prison. A spokesperson for the U.S. Attorney’s Office in Michigan said they “are reviewing the judge’s opinion and will make a determination whether or not to appeal at some point in the future.”
“Oh my God, we won!” Nagarwala’s attorney, Shannon Smith, apparently exclaimed after the ruling, calling her client “just a wonderful human being.”
“She was always known as a doctor with an excellent reputation. The whole community was shocked when this happened. She’s always been known to be a stellar doctor, mother, person,” Smith said.
Others, however, weren’t so pleased with Tuesday’s ruling, including activist Mariya Taher, who has become an outspoken critic of the practice, which she herself was forced to endure at the age of seven.
“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,” she told Detroit Free Press, writing on Twitter that she is “in shock.”
“This is a violation of one person’s human rights. It’s a form of gender violence. This is cultural violence,” she added.
State. Sen. Rick Jones (R-Grand Ledge) was outraged with Friedman’s ruling, and issued a press release Tuesday to condemn the outcome.
“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. “This is why it’s 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.”
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