Court Says U.S. Engaged In Vindictive Subsequent Prosecution of Defendants Originally Charged With Female Genital Mutilation

In United States v. Nagarwala, (ED MI, Sept. 28, 2021), a Michigan federal district court dismissed witness tampering charges against defendants (medical personnel and mothers of minor girls in the small, Indian-Muslim Dawoodi Bohra community) who were originally charged with violating the federal statute banning female genital mutilation. In 2018, the court held that the FGM statute was unconstitutional as exceeding Congress' interstate commerce and treaty powers. (See prior posting.) Subsequently, the government unsuccessfully attempted to convict defendants under superseding indictments, including an indictment for travel with intent to engage in illicit sexual conduct. The court now holds that the latest superseding indictment charging witness tampering was a vindictive prosecution brought in retaliation for defendants asserting their rights. MLive reports on the decision.

Sudan Liberalizes Its Laws On Apostasy, Alcohol, Criminal Sanctions and Women's Rights

Al Jazeera reported earlier this week on important legal reforms being implemented in Sudan:

Sudan approved wide-ranging amendments to its criminal law including repealing the death penalty for apostasy as well as no longer requiring women to need a permit from male family members to travel with their children....

Public flogging will also be ended and the consumption of alcohol by non-Muslims will now be permitted. ...

The new laws will also ban female genital mutilation (FGM)....

6th Circuit Refuses To Allow Congress To Intervene To Defend FGM Ban

As previously reported, after the Department of Justice dropped its appeal of the district court's decision in United States v. Nagarwala which held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause, the House of Representatives filed a motion to intervene in the case to defend the constitutionality of the statute. The Detroit Free Press now reports that the U.S. 6th Circuit Court of Appeals last week denied the House's motion to intervene and granted the Justice Department's motion to voluntarily dismiss the appeal.

House of Representatives Moves To Intervene To Defend Federal FGM Ban

As previously reported, last month the Department of Justice dropped its appeal of the court's decision in United States v. Nagarwala. In the case, a Michigan federal district court held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause.  Yesterday, the House of Representatives filed a motion to intervene (full text) in the case to defend the constitutionality of the statute. The Detroit Free Press reports on this move by House leaders.

DOJ Drops Appeal In FGM Case; Proposes Amendments To Federal Statutory Ban

AP reports that the Department of Justice has dropped its appeal of the court's decision in United States v. Nagarwala. In the case, a Michigan federal district court held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause, saying it is not a commercial activity; it is a local criminal activity which should be left to the states to regulate. (See prior posting.) In a letter (full text) sent to Congress last Wednesday, Solicitor General Noel Francisco proposed amendments to the the federal law needed to assure its constitutionality:

[C]oncurrently with submitting this letter, the Department is submitting to Congress a legislative proposal that would amend Section 116(a) to provide that FGM is a federal crime when ( 1) the defendant or victim travels in or uses a channel or instrumentality of interstate or foreign commerce in furtherance of the FGM; (2) the defendant uses a means, channel, facility, or instrumentality of interstate commerce in connection with the FGM; (3) a payment is made in or affecting interstate or foreign commerce in furtherance of the FGM; (4) an offer or other communication is made in or affecting interstate or foreign commerce in furtherance of the FGM; (5) the conduct occurs within the United States' special maritime and territorial jurisdiction, or within the District of Columbia or a U.S. territory; or (6) the FGM otherwise occurs in or affects interstate or foreign commerce. In our view, adding these provisions would ensure that, in every prosecution under the statute, there is a nexus to interstate commerce.

The letter to the Senate Judiciary Committee was sent in compliance with 28 USC Sec. 530D which requires DOJ to report to Congress when it, among other things, decides not to appeal a decision affecting the constitutionality of a federal statute.

Court Holds Federal Female Genital Mutilation Statute Unconstitutional

A Michigan federal district court today held, on federalism grounds, that the federal Female Genital Mutilation statute, 18 USC 116, is unconstitutional. The case involves the prosecution of medical personnel and of the mothers of minor girls in the small, Indian-Muslim Dawoodi Bohra community. (See prior posting.)  In United States v. Nagarwala, (ED MI, Nov. 20, 2018), the court rejected the government's argument that the statute can be supported as an exercise of Congress' treaty power or its power to regulate interstate commerce.

The International Covenant on Civil and Political Rights which Congress ratified in 1992 (subject to certain understandings and reservations) requires the adoption of laws to protect the rights of minors. One of the understandings imposed by Congress was that ratification would not change the relative roles of the federal and state governments. The court said in part:

Congress overstepped its bounds in  legislating to prohibit FGM.... FGM is a "local criminal activity" which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.

In rejecting the government's Commerce Clause arguments, the court said in part:

In the present case, the government has failed to show that FGM is a commercial activity. It claims that “[l]ike child pornography and marijuana, an interstate market exists for FGM.” ... Yet the government’s only evidence of such a market is the fact that it has alleged nine FGM victims in the present case, five of whom were brought to Michigan from neighboring states.... This is not a market, but a small number of alleged victims. If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute? The government’s attempt to show that there is an interstate market for FGM falls flat; its comparison to the multi-billion-dollar interstate markets for marijuana and pornography is unsupported and unconvincing....

Finally, the government asserts that only a federal statute can deal with FGM because, as Congress asserted in its fourth finding, “the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control.”... This argument fails for at least two reasons. First, the Commerce Clause allows Congress to regulate commercial activity that has a substantial effect on interstate commerce, not activity that is “beyond the ability of any single State or local jurisdiction to control.” Second, the government informs the Court that twenty-seven states have passed FGM statutes ... and nothing prevents the others from doing so.

Detroit News reports on the decision.

British Court Issues FGM Protection Order To Protect 1-Year Old

According to the Manchester Evening News this week, a Family Court judge in Manchester, England has entered an "FGM protection order" at the request of social workers.  The order prohibits a 1-year old girl's family from flying the child back to India, their country of origin, for purposes of female genital mutilation.  The child's three older sisters had previously been flown to India for the procedure.  FGM protection orders have been available from British judges for about three years. (Background on obtaining an FGM Order).

One Count Dismissed In Michigan Female Genital Mutilation Case

A Detroit (MI) federal district court yesterday dismissed the most serious of seven charges against two doctors indicted for their involvement in alleged female genital mutilation of girls who are members of the Dawoodi Bohra, a Muslim sect from western India. (See prior related posting.)  In United States v. Nagarwala, (ED MI, Jan. 14, 2018), the court dismissed the Count charging violation of 18 USC Sec. 2423, Conspiracy to Transport Minor with Intent to Engage in Criminal Sexual Activity.  The court held that "sexual activity" as used in the statute must involve libidinal gratification.  Applying that definition, the court said:

The government does not contend that Dr. Nagarwala or Dr. Attar sought or obtained any libidinal gratification from subjecting the minor victims to FGM....  In short, while the indictment may sufficiently allege a violation of the FGM statute – the statute adopted by Congress to address precisely such genital cutting – it does not allege that defendants transported minors intending that they engage in “sexual activity.” 

Detroit News reports on the decision.

Michigan Outlaws FGM In Package of Bills Signed By Governor

On July 11, Michigan Governor Rick Snyder signed a series of bills dealing with female genital mutilation. As summarized by the governor's press release:

The bill package amends various public acts to prohibit and prosecute those who perform female genital mutilation. Specifically, the bills prohibit performing genital mutilation, create criminal penalties for offenders, provide sanctions against healthcare licensees, require increased public education surrounding the topic and extend criminal and civil statutes of limitations.

One of the bills, HB 4636, outlaws FGM and provides:

It is not a defense to prosecution under this section that the person on whom the operation is performed, or any other person, believes that the operation is required as a matter of custom or ritual, or that the person on whom the operation is performed, or that person’s parent or guardian, consented to the operation.

HB 4642 requires the Department of Health and Human Services to:

Develop and administer an educational and outreach program that, at a minimum, informs the public, including members of new immigrant populations to this state that commonly practice female genital mutilation and health care providers, of the health risks and emotional trauma inflicted by the practice of female genital mutilation and the criminal penalties for female genital mutilation.

Female Genital Mutilation Case Expands

On June 21, federal authorities filed a Superseding Indictment (full text) adding two defendants in United States v. Nagarwala, (ED MI, 6/21/2017)-- the female genital mutilation case involving members of the Dawoodi Bohra Indian-Muslim community in the Detroit, Michigan area. (See prior posting).  According to the Detroit Free Press, the new defendants are Farida Arif and Fatema Dahodwala, two mothers who brought their daughters for the procedure to be performed.  This brings the total number of defendants to six. Prosecutors say there may have been up to 100 girls who were victims. The Free Press reports:

Lawyers involved in the case have said girls did not undergo female genital mutilation. They underwent a benign religious procedure, the lawyers have said.

“I am frankly appalled that the government would put these women through this,” said Dahodwala’s lawyer Margaret Sind Raben, who also has advised Arif’s family.

“Any mother who provided her child to Dr. Nagarwala or anyone else, for the purposes of this religious procedure, did so in absolute firm faith that this was required by their religion and that no permanent harm would come to their child,” Sind Raben said.

The new indictment charges various defendants with conspiracy to commit female genital mutilation, female genital mutilation, conspiracy to transport a minor with intent to engage in criminal sexual activity, conspiracy to obstruct an official proceeding, and making false statements to a federal officer.

UPDATE: Detroit Free Press June 24 reports on the controversy within the  Dawoodi Bohra sect between those who favor and those who oppose the practice of female genital cutting.

Two FGM Defendants Released On Bond

The Detroit Free Press reported yesterday that a federal district court judge has released on bond to house arrest a doctor and his wife who are facing conspiracy charges in the first prosecutions under the federal female genital mutilation statute. (See prior posting.) The paper reports in part:

Dr. Fakhruddin Attar, 53, of Farmington Hills, is accused of letting another doctor use his clinic to perform genital cutting procedures on two 7-year-old Minnesota girls; his wife, Farida Attar, 50, is accused of holding the girls' hands during the procedure to keep them from squirming and to calm them.

Defense lawyers have claimed the Attars did not engage in any criminal  act, and that the procedure at issue is a protected religious rite-of-passage that involved no cutting....

Assistant U.S. Attorney Sara Woodward dropped a bombshell in court today in telling Friedman that the government believes the defendants have subjected as many as 100 victims to the procedure.

The primary defendant,  Dr. Jumana Nagarwala who is accused of performing the procedures remains in jail pending trial.

Magistrate Denies Bond In Female Genital Mutilation Prosecution

In Detroit yesterday a federal magistrate denied bond to two defendants charged with female genital mutilation (see prior posting), rejecting their attorney's claim that this is "part of a deeply held and longstanding religious tradition" of  the Indian-Muslim Dawoodi Bohra sect.  U.S. Magistrate Elizabeth Stafford commented that the defense is using religion "as a shield." The Detroit Free Press, reports:

The case involves  Dr. Fakhruddin Attar, 53, and his wife, Farida Attar, 50,  who were arrested April 21 at the Burhani Medical Clinic in Livonia, where prosecutors allege two Minnesota girls had their genitals cut in February. Attar is accused of letting another doctor use his clinic to perform the cuttings; his wife is accused of holding the girls' hands during the procedures to "comfort them."

The accused cutter is  Dr. Jumana Nagarwala, who was arrested April 12 and indicted last week in what is the the nation's first federal prosecution of genital cutting.  The FBI and prosecutors believe she has several more victims and claim that  she and her co-defendants have told others in their religious community to keep quiet about the secretive ritual.

MLive, reporting on the hearing, says:

Mary Chartier, the attorney for Fakhruddin Attar, said at Wednesday's hearing she intends to challenge the constitutionality of the 1997-passed federal law that bans genital mutilation on grounds that the ban is vague, overreaching and violates religious freedom. 

She noted that male circumcision, which also has religious origins -- but is seen by some as practical for hygienic reasons --  is legal while a similar procedure for girls is not.

3 Indicted In Detroit On Charges of Female Genital Mutilation

On Thursday, the U.S. Attorney's Office for the Eastern District of Michigan announced the arrest of a Detroit physician and his wife on charges of violating the federal ban on female genital mutilation. (Full text of criminal complaint.) Fakhruddin Attar and his wife Farida were charged with conspiring with Dr. Jumana Nagarwala who was arrested earlier this month in Detroit and ordered detained on pending trial. (Press release and criminal complaint in Nagarwala case.) As reported yesterday in a background article in the Detroit Free Press:

All three defendants  belong to a small, Indian-Muslim community known as the Dawoodi Bohra, whose members say genital cutting is a deeply entrenched social and cultural norm, with some women viewing it as normal as having a period. Celebration parties are held after the cuttings, and the women and girls are supposed to keep it a secret. One of the key reasons for the procedure, victims say, is to curb a woman's sexuality.

According to an earlier Detroit Free Press report:

Nagarwala has claimed through her lawyer that she did not engage in any actual cutting, but rather that she removed a membrane from the genital area using a "scraper" and gave it to the parents to bury in the ground as part of a religious custom within  the Dawoodi Bohra community.

On Friday, Anjuman-e-Najmi Detroit, an umbrella organization for the Dawoodi Bohra community in Detroit, issued a statement reading in part:

The Dawoodi Bohras do not support the violation of any U.S. law, local, state or federal.  We offer our assistance to the investigating authorities. Any violation of U.S. law is counter to instructions to our community members.  It does not reflect the everyday lives of the Dawoodi Bohras in America.

Apparently these are the first defendants charged under 18 USC 116 prohibiting female genital mutilation.