A federal judge dismissed FGM charges against a Michigan doctor on a legal loophole. U.S. District Judge Bernard Friedman agreed with the defense that the law under which the doctor was being charged with female genital mutilation (FGM) was unconstitutional.
Dr. Jumana Nagarwal — who belongs to the Dawoodi Bohra, a Muslim sect from India — was charged with mutilating nine young girls, acts forbidden under the Commerce Clause of the U.S. Constitution.
Nagarwal’s attorneys argued performing FGM has no bearing on commerce, an opinion concurred with by the judge:
“As despicable as this practice may be, it is essentially a criminal assault,” Friedman wrote. “FGM is not part of a larger market and it has no demonstrated effect on interstate commerce. The Commerce Clause does not permit Congress to regulate a crime of this nature.”
Friedman further explained how FGM does not fit into the Necessary and Proper Clause of the commerce law:
“That clause permits Congress to regulate activity that is commercial or economic in nature and that substantially affects interstate commerce either directly or as part of an interstate market that has such an effect. The government has not shown that either prong is met.”
Friedman said the power to ban FGM falls under the purview of individual states.
“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,” Friedman wrote.
To date, 27 states have made the practice illegal. Michigan passed an anti-FGM law last year after Nagarwal and her co-defendants were charged by the federal government. The Michigan law mandates stiffer punishment than the federal law, making those guilty of performing FGM liable to 15 years in prison versus five years as mandated by the federal law.
However, the Michigan law cannot be applied to the defendants retroactively.
Although Congress passed the law banning FGM in 1996, this case was the first time the federal statue was tested.
Nagarwal still faces two lesser charges to which she pleaded not guilty: conspiracy to travel with the intent to engage in illicit sexual conduct and obstruction. Others in the case also face obstruction charges.
Charges against four of the other eight defendants in the case were also dismissed by the judge, including three of the four mothers accused of subjecting their daughters to FGM.
Most girls who undergo FGM worldwide are cut between the ages of four and 12. At least three of the girls cut in the Michigan clinic were born between 2007 and 2008.
Short-term complications of FGM can include hemorrhaging, pain, shock and even death, while long-term complications include formation of cysts, problems with sexual intercourse and giving birth, chronic pelvic infection and sterility.
The trauma of FGM often lasts a lifetime and can cause depression and anxiety, among other psychological problems. FGM reduces or eliminates sexual pleasure for the victim.
Although Nagarwala is accused in this case of mutilating nine girls, investigators say as many as 100 girls may have been cut by Nagarwala over a 12-year period.
Every year an estimated three-million girls undergo FGM. The World Health Organization estimates that 200-million girls and women alive today have undergone the procedure. The procedure is mainly practiced in Africa as well as in Muslim-majority countries and immigrant communities in Europe, the United States and Canada.
While FGM is not mentioned in the Quran, it is mentioned in many seminal Islamic sources and by many leading Islamic leaders as a praiseworthy practice.