Lawyers for Jumana Nagarwala, the Michigan emergency-room doctor accused of performing genital mutilation on young girls, plan to invoke a defense based on freedom of religion, the Detroit Free Press reported.
While the law, enacted in 1996, is clear that cutting a girl’s genitals is illegal, the defense will claim the girls in question were not actually cut, but rather scraped for religious reasons. Thus, they will propose that not only was no harm was done, but the defendants themselves are victims of religious persecution by the U.S. government.
The case involves two seven-year-old girls from Minnesota who were brought to Nagarwala’s clinic in Livonia, Michigan for the procedure. Also charged in the case are Dr. Fakhruddin Attar, 53, who is accused of letting Nagarwala use his clinic to carry out the cuttings and Farida Attar, 50, Fakhruddin’s wife, who is accused of holding the hands of at least two victims during the cutting procedures to comfort them.
According to court documents, a medical examination showed the girls had scarring and other abnormalities on their clitorises and labia minora that would indicate actual cutting took place. In addition, the government says there are many other young victims of FGM performed by Nagarwala who were told to remain silent or lie about the procedure to authorities, itself a crime.
Even if the procedure involved “just” scraping, “There are experts who contend that even the most mild procedure is still harmful,” said Brad Dacus, an attorney and expert on First Amendment rights and president of the Pacific Justice Institute, as quoted in the Detroit Free Press.
FGM includes all procedures involving partial or complete removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. Short-term complications 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. It has been illegal in the United States since 1996.
“It is hard for me to imagine any court accepting the religious freedom defense given the harm that’s being dealt in this case,” said Dean of University of California Irvine Law School Erwin Chemerinsky, one of the nation’s leading constitutional law scholars and an First Amendment expert, as quoted in the Free Press.
All the defendants are Muslims from India and members of the Dawoodi Bohra sect.
Chemerinsky noted other instances where parents consistently lost cases trying to defend their choice to deny their children medical care based on their religious beliefs, thus showing there is “no absolute right” to freedom of religion in the U.S.
Both Chemerinsky and Dacus say the case will come down to medical facts — namely, whether or not the procedure inflicted upon the girls creates lifelong harm.
In addition to a medical examination of the girls, a court filing submitted by a Homeland Security investigations special agent states, “According to some members of the community who have spoken out against the practice, the purpose of this cutting is to suppress female sexuality in an attempt to reduce sexual pleasure and promiscuity.”
This statement also supports the argument that permanent harm was done, since a symbolic scrape would presumably not permanently alter the girl’s future sexual function.
Defense lawyers also plan to base their defense on the fact that since the law allows male circumcision, not allowing this type of FGM on the girls – which they term a “very minor religious procedure” – violates the constitution’s clause that mandates men and women be protected equally.
However, constitutional lawyer Robert Sedler from Wayne State University said the equal protection clause was not valid in this case since male circumcision has positive health benefits, is not considered harmful by the medical community and does not affect a man’s sexual function.