Judge rules ban on female genital mutilation as unconstitutional in landmark case against doctors accused of controversial procedure

The decision came only two weeks after defense lawyers made the first case against a 22-year-old genital mutilation law which was not used until April 2017


                            Judge rules ban on female genital mutilation as unconstitutional in landmark case against doctors accused of controversial procedure

A federal judge has dismissed, on November 20, the charges of female mutilation against several doctors ruling that the law is unconstitutional. This is considered the first criminal case of its kind nationwide. The decision made by US District Judge Bernard Friedman came only two weeks after defense lawyers made the first case against a 22-year-old genital mutilation law which was not used until April 2017. This was when Dr. Jumana Nagarwala from Northville was arrested and subsequently accused of being the head of a conspiracy that went on for 12 years.

The Detroit News reported that the conspiracy also involved seven other people and it led to the genital mutilation of nine girls as part of a religious procedure that is still practiced by some members of the Dawoodi Bohra, which is a Muslim sect from India that has a small community living in Metro Detroit.

Judge Friedman was able to deliver a significant verdict to the criminal prosecution but left the conspiracy and obstruction charge intact. These charges could put the doctors in federal prison for decades if found guilty.



 

The landmark case is being followed very closely by members of the sect who live in the country and international human rights groups who oppose female genital mutilation. The case has also managed to raise awareness in the US for the controversial procedure and has made the state of Michigan enact some new state laws that criminalize female genital mutilation. The judge removed four defendants from the case — this included three mothers who have been accused of subjecting their daughters to female genital mutilation — while he concluded that the Congress has no authority to enact a law that criminalizes female genital mutilation, better known as FGM.

Friedman wrote in a 28-page opinion: "There is nothing commercial or economic about FGM (Female Genital Mutilation). It is not part of a larger market and it has no demonstrated effect on interstate commerce. The Commerce Clause does not permit Congress to regulate a crime of this nature." A spokesperson for the US Attorney's Office said that officials are currently reviewing the judge's order and will soon decide whether they should appeal.

Shannon Smith, Nagarwala's lawyer, said on November 20: "My honest reaction is 'Oh My God'. We are unbelievably happy. The impact is huge. It eliminates four defendants from the indictment, and it severely punctures major holes in the government’s case." Women's rights groups have since condemned the judge's opinion and have slammed his remarks saying it is a major setback for women and girls.



 

Shelby Quast, the American director for Equality Now, said: "It’s a giant step backward in the protection of women’s and girls’ rights. Especially when there is a global movement to eliminate this practice." The judge's opinion has also angered Senator Rick Jones, R-Grand Ledge. He said in a statement: "I’m angry that the federal judge dismissed this horrific case that affected upwards of a hundred girls who were brutally victimized and attacked against their will."

The statement continued: "This is why it was so important for Michigan to act. We set a precedent that female genital mutilation will not be tolerated here... I hope other states will follow suit." Out of the 50 states that make up the United States of America, a shocking 23 of them do not have laws that criminalize FGM. Quast said: "Parents are aware of where there are laws against it and where there are not. And they will take advantage of that."

The defense motion that was filed is the latest in an attempt to dismiss charges that were filed by federal prosecutors. In January this year, Friedman dismissed what is the most serious count against Nagarwala and her co-defendant, Dr, Fakhruddin Attar — a sex charge that is punishable upto a life term in federal prison. The prosecutors said that prepubescent girls were mutilated at Attar's clinic in Livonia, which is reportedly managed by his wife, Dr. Farida Attar, who was also charged in the case.

Women protesting during the International Day against female genital mutilation (Getty Images)
Women protesting during the International Day against female genital mutilation (Getty Images)

A trial is scheduled to take place in April 2019. Mary Chartier, Fakhruddin Attar's lawyer, wrote in an email to the Detroit News: "It is a victory for everyone when a court requires the government to adhere to the mandates of our Constitution. We’re thrilled with the court’s well-reasoned and thoughtful opinion. And we’re committed to fighting for as long as it takes to prove Dr. Attar is innocent."

The indictment that was filed in September this year has referred to three children whom the prosecutors say went through the procedure that was performed by Nagarwala at the Burhani Medical Clinic, Farmington Road, Livonia in 2015. All three girls are from Illinois and were born in 2007 and 2008. The clinic was closed down in 2017.  

Peter Henning, a law professor at the Wayne State University and a former federal prosecutor, said that the order that came on November 21 could potentially prompt the Congress to modify the federal law. He said: "Congress can solve this by going back and re-enacting the law. The problem is the law cannot be applied to conduct what happened before."