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Federal Ban on Female Genital Mutilation Struck Down

By Lisa M. Schaffer, Esq. on November 26, 2018 | Last updated on March 21, 2019

Sometimes, you have to take the good with the bad, and that is very true of America's governmental system. Based on Federalism principles, Judge Bernard Friedman of the United States District Court for the Eastern District of Michigan ruled that Congress overstepped its authority to pass the 1996 law that criminalizes female genital mutilation (FGM), and consequently dismissed many key charges filed against the doctors that performed the FGM procedure, and removed four of the eight defendants from the case.

FGM Performed on Four Girls in Michigan

At issue in this case is the FGM procedure conducted on four girls at a Detroit-area clinic. FGM is not an uncommon practice; it is estimated that around 200 million females globally have undergone the procedure used to curb female extra-marital sexual activity. In the Michigan case, Dr. Jumana Nagarwala, an emergency medicine physician and a member of the Dawoodi Bohra sect, cut the genitals of nine girls. Dr. Fakhruddin Attar, an internist, let Dr. Nagarwala use his now-closed Burhani Medical Clinic to perform the procedures. Farida Attar, the doctor's wife and the clinic's office manager, and another woman, Tahera Shafiq, assisted the doctors. All were charged under the federal FGM law, and all of those charges have now been dismissed.

FGM Law Outside of Congressional Power

Congress does not have the power to police local criminal activity. Though it does have the power to regulate interstate commerce, which is the argument used by the prosecution in this case, Judge Friedman said that there was no way he could view FGM as commerce, no matter how broadly defined. As such, Federalism policies require Congress to refrain from regulating local criminal activity, which FGM falls under. States are free to pass their own FGM laws, or prosecute those involved under other existing state statutes, but Congress cannot enact a criminal code such as this.

Doctors Will Still Stand Trial

Though the federal judge struck down the FGM charges in federal court, those involved in this situation will still stand trial, but just under different laws. Dr. Nagarwala, the Attars, and the mother of one of the FGM female patients, are still charged with conspiracy to obstruct an official proceeding, which carries a maximum sentence of twenty years in prison. Also, Dr. Naragarwala is charged with conspiracy to travel with intent to engage in illicit sexual conduct, which is defined as intentional touching of another person under age 16 with the intent to abuse, harass or degrade the person, and carries a maximum sentence of life in prison.

Michigan has since added a state law against FGM, joining 26 other states that have similar laws. Defendants in this case cannot be charged with this new Michigan law, since it was enacted after the incidents in question transpired. But as with many results of our governmental system, moving forward, others will now be protected.

If you have been accused of any sort of involvement in FGM, contact a local criminal defense attorney today. There are many laws that specifically or tangentially cover this practice, and though you may feel you are following a religious directive, it may not be protected by your local government.

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