Detroit Judge: Federal Statute Outlawing Female Genital Mutilation is Unconstitutional

By Patrick Goodenough | November 21, 2018 | 1:23 AM EST

The anti-FGM federal statute was passed in 1996. (Photo: CNSNews.com)

(CNSNews.com) – For 22 years, female genital mutilation has been a federal crime in the United States, but on Tuesday a judge in Detroit declared the 1996 law to be unconstitutional, dismissing most of the charges faced by two doctors and seven other people – including four victims’ mothers – accused of subjecting at least nine girls through the widely-condemned practice.

The ruling by District Judge Bernard Friedman brought a shocked response from Ayaan Hirsi Ali, a Somali-born naturalized American scholar who advocates for women in Islamic societies – and who as a young child was herself the victim of FGM.

Hirsi Ali called the decision “outrageous, “ saying on Twitter that “Cutting girls genitals is a crime and must be prosecuted.”

FGM (also sometimes referred to as female genital mutilation/cutting, FGM/C) involves the partial or entire removal of the female genitalia.

Although the practice predates Islam it is most prevalent in Islamic countries. According to U.N. data the highest FGM rates are in Somalia (estimated 98 percent prevalence), Guinea (97 percent), Djibouti (93 percent) Sierra Leone (90 percent), Mali (89 percent), Egypt (87 percent) and Sudan (87 percent).

On trial in Detroit were Dr. Jumana Nagarwala, who prosecutors said had subjected at least nine girls, from Michigan, Minnesota and Illinois to the procedure; Dr. Fakhuruddin Attar, accused of allowing Nagarwala to use his clinic after hours for the activity; and Attar’s wife, Farida Attar, and another woman, Tahera Shafiq, who assisted during the procedures.

Also on trial were four mothers who took their daughters to the clinic for the procedure. Local media outlets identified the defendants as members of an Indian Muslim sect.

Documents before the court included an affidavit by an FBI special agent which described how two seven-year-old Minnesota girls accompanied their mothers to Detroit for a “special” girls’ trip, but once there were taken from the hotel to a doctor for a procedure “to get the germs out.”

Both girls said they were told the procedure was a secret they were not to talk about, the document said. One of the girls “said that after the procedure she could barely walk, and that she felt pain all the way down to her ankle.”

The 1996 federal statute under which the charges were brought says that “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.”

In his 28-page opinion, Friedman said the statute was unconstitutional, arguing that Congress had “overstepped its bounds” legislating a prohibition that should have been left to the states.

“FGM is ‘local criminal activity’ which, in keeping with longstanding tradition and

our federal system of government, is for the states to regulate, not Congress,” he wrote.

Friedman noted that, according to the government, 27 states have enacted FGM statutes. He added, “nothing prevents the others from doing so.”

‘Inhuman and un-American’

The judge ordered that six counts on the indictment be dropped. The remaining counts, which apply only to the main defendants, relate to obstruction and “conspiracy to travel with intent to engage in illicit sexual conduct.”

American Islamic Forum for Democracy president M. Zuhdi Jasser called the ruling “inhuman and un-American.”

“The judge just signaled to butchers like ‘Dr.’ Nagarwala that they can seek refuge in the U.S. federal system for their crimes against the humanity of young girls,” he said on Twitter.

Although most countries where FGM is most common are members of the Organization of Islamic Cooperation, the OIC disputes that there is any link between Islam and the practice.

In a statement delivered during a U.N. Commission on the Status of Women (CSW) session in 2013, the Islamic bloc described FGM as a “cultural” practice that is “disguised as part of religious tradition.”

At that same 2013 CSW session, Egypt – which was then under a Muslim Brotherhood government – led an push to reject a draft declaration on violence against women. It warned that the move would “be the final step in the intellectual and cultural invasion of Muslim countries, eliminating the moral specificity that helps preserve cohesion of Islamic societies.”


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Patrick Goodenough
Patrick Goodenough
Spencer Journalism Fellow