On the day before the eve of American Thanksgiving Day, a U.S. District Judge, Bernard A. Friedman shocked the FGM community when he ruled that the federal Female Genital Mutilation (FGM) Act of 1996 is unconstitutional. Apparently there is some sort of Commerce Clause under which the federal law was passed, and the defense in the FGM Michigan case picked through, until they found something to get the case dismissed. Some things are still unclear about the dismissal.
Let’s rewind to April 2017 so we can refresh your memory about this case. Federal agents arrested a Michigan doctor for allegedly practicing FGM on little girls last year. An employee of the Henry Ford Hospital in Michigan, 44-year old Dr. Jumana Nagarwala was charged with violation of 18 U.S.C. 116 (female genital mutilation); 18 U.S.C. 2423 (transportation with intent to engage in criminal sexual activity and conspiracy); 18 U.S.C. 1001 (making a false statement to a federal agent). According to the U.S. Attorney’s Office, Dr. Nagarwala had allegedly performed female genital mutilation on minor girls at a medical office in Livonia, Michigan, even though she does not work at that medical office. Originally from India, Nagarwala was reported to be a member of a religious and cultural community that practices FGM on girls and women, which curbs their sexuality and causes sexual intercourse to be excruciatingly painful.
FGM is the intentional removal of either all or part of the external female genitalia for non-medical reasons. Every advocate or activist in the United State has recited countless of times that “FGM is a federal crime in the United States for anyone who 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 yet attained the age of 18 years”. But according to Judge Friedman, that phrase is unconstitutional. Well then, is the child abuse law also unconstitutional? In the U.S., FGM is considered child abuse, and should be treated as any other form of child abuse. Therefore anyone who performs FGM on a girl child should be charged, arrested and tried for that crime. How does Judge Friedman feel about the law against child abuse?
Reviewing the federal law passed in 1996, it states that Congress passed several legislative measures relating to FGM that year. Firstly, the practice of FGM on a minor was defined as a federal criminal offense, unless necessary to protect a young person’s health. Secondly, the Department of Health and Human Services was required both to compile data on FGM and to engage in education and outreach to relevant communities. Thirdly, the Immigration and Naturalization Service was directed to provide information to all immigrants issued U.S. visas on the health and psychological effects of FGM, as well as on the legal consequences of FGM under criminal or child-protection statutes. Finally, U.S. executive directors of international financial institutions, such as the World Bank, were required by federal law to oppose non-humanitarian loans to countries that have not undertaken educational measures designed to prevent FGM.
Therefore on September 30, 1996, Congress enacted a provision criminalizing the practice of FGM as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. However there were two exceptions to the federal law; “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.” The statute also exempts a surgical operation if such operation is “necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner.” Granted Dr. Nargarwala was a licensed medical doctor, but it certainly was not necessary to the health of those little girls on whom she performed FGM or FGC. Such exemptions became effective on April 1, 1997, 180 days after the enactment of the initial federal law in 1996. Now the world is suddenly fed a rude awakening that the very 1996 law violates the Constitution of the United States, and should not be enforceable. At least, that is according to Judge Friedman, who ruled that in general, criminal law is left to the states, and FGM is no exception. And the anti-FGM community in the U.S. had to suffer from indigestion on their Thanksgiving Day as they struggled to digest the idea of all six federal charges being dropped against Jumana Nagarwala. She had been accused of cutting the genitals of multiple girls when they were about 7 years old. The charges were also dropped against other accused violators in assisting with the cutting.
Are the federal rights of the little girls whom Nagarwala excised unconstitutional as well? And what is Judge Friedman sending a message to all the other at-risk girls here in the United States, that their safety and security do not matter? There is outrage among FGM survivors and advocates. One woman who is a survivor of FGM told Global Woman Newsletter, “I am still speechless. That judge just gave cutters and parents who practice this abuse the green light. But I’m sure however that if those girls were blonds and redheads, it would have been a different outcome.” A supporter of Global Woman P.E.A.C.E. Foundation told the newsletter, “It is important that we continue to support the cause.” A Board Member of Global Woman P.E.A.C.E. said, “This is tragic that such savagery is upheld. We have to continue our fight and commitment to eradicating violence against women with more urgency.”
Virginia Senator Richard H. Black of the 13th District sent this statement on the eve of Thanksgiving. “Dear Friends, last night I learned of the federal decision in the Michigan FGM case. It is a tragedy that women must continue to be subjected to this terrible practice. That is why I have worked hard in the General Assembly to make this a felony crime in Virginia. You can see my official statement responding to the decision. You can also find out more about efforts being done to combat this practice from my friends at the Global Woman P.E.A.C.E. Foundation.” Senator Black continued, “I applaud federal prosecutors for pursuing this long – ignored savagery against girls, and I urge state authorities to prosecute the cases in state courts. These horrid crimes against girls must be reported to law enforcement; they must not be ignored any longer.”
Senator Black enacted Senate Bill 1060, which is Virginia’s first law banning FGM in 2017. It was apparently the first such law to give a child the right to sue anyone involved, including parents, for 10 years after the child turns 18 years old. This law puts the violators at risk of a lawsuit that could wipe them out, even if there is no criminal prosecution. Earlier this year, Senator Black tightened the law by increasing the penalty to a class 2 felony. The 2018 law makes FGM punishable in Virginia by 20 years to life in prison and a fine of up to $100,000. As Senator Black advises, the states should prosecute cases since the federal law has been ruled unconstitutional.
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