Disappointment at the U.S. Department of Justice decision not to appeal ruling in the first federal genital mutilation case
It leaves thousands of girls at risk of FGM.
It is both deeply disappointing and disturbing to hear that Attorney General Barr has decided not to appeal the Michigan case against Jumana Nagarwala, a U.S. doctor who was charged in 2017 with performing Female Genital Mutilation (FGM) on nine girls, aged 7 to 13, from Michigan, Illinois and Minnesota, at a Detroit clinic. Prosecutors alleged that Dr.Nagarwala may have subjected up to 100 girls to the procedure over a 12 year period.
This was the first case to be brought under a federal anti-FGM law introduced by Congress in 1996. In November 2018, a federal judge in Detroit dismissed six of the eight charges on the grounds that the law was unconstitutional because Congress did not have the right to criminalize the practice.
In making its decision, the DOJ incorrectly relies on U.S. District Judge Bernard Friedman’s ruling in the Eastern District of Michigan that Congress lacked authority, under the commerce clause, and the treaty clause, of the US constitution, to adopt the law and that the power to outlaw FGM resided with individual states.
However, Judge Friedman applied the wrong standard of review in determining whether FGM is an issue that can be subject to federal laws, and his decision demonstrates a clear lack of understanding about the nature of FGM, which is a form of gender-based violence and child abuse and an economic activity.
FGM involves the partial or complete removal of external female genitalia for non-medical reasons. It has no health benefits and can have serious lifelong physical and mental health consequences including chronic infections; severe pain during urination, menstruation and sexual intercourse; psychological trauma; and increased risk of infertility, labor complications and newborn death. The procedure itself can also be fatal.
FGM occurs around the world and transcends religious, cultural, socioeconomic, and country lines. Regardless of the degree, severity, or motivation, it is a human rights violation linked to the oppression of women and girls, and there is no legitimate justification.
Judge Friedman’s ruling failed to take into account the widespread occurrence of FGM in the United States, where an estimated 513,000 women and girls who have undergone or are at risk of being cut.
The Department of Justice (DOJ) has indicated they agree with Judge Friedman that there is a problem with the current federal FGM law, and in compliance with the law (28 U.S. Code § 530D), a letter has been sent to the U.S. Congress informing them of concerns.
It now sits with Congress to respond by either defending the existing legislation or addressing a perceived flaw in the way that is was passed.
We are convinced that Congress has both the authority and responsibility to enact the FGM law in compliance with its international human rights obligations and that the decision by the DOJ not to appeal is simply wrong.
However, if the DOJ will not implement it in its current form then we call on Congress to respond swiftly to make the required amendments to ensure the federal FGM law is valid under both the treaty clause and the commerce clause, recognizing that 29 states do not currently have laws against FGM.
It is worth noting that the DOJ issued a press release on February 6, 2019, for International Day of Zero Tolerance for Female Genital Mutilation, stating:
“Female genital mutilation/cutting (FGM/C) is a federal crime, and any involvement in committing this crime is a serious human rights violation, which may result in imprisonment and potential removal from the United States. Individuals suspected of FGM/C, including sending girls overseas to be cut, may be investigated by the HRVWCC and prosecuted accordingly.”
We wonder what has changed between then and now that would compel the DOJ not to challenge Judge Friedman’s ruling.
In the aftermath of Nagarwala case, Jennifer, an American woman who was subjected to FGM as a child growing up in a conservative Christian community, realized there is no law banning FGM in her home state of Kentucky and has launched a Change.org petition calling for one to be introduced.
"It's also alarming because so many states don't have laws. I don't want Kentucky to be somewhere girls can be brought for FGM just because we don't have a law," she recently told Thomson Reuters when she shared her story publicly for the first time.
"FGM takes away any chance of having a 'normal' life’. It takes away the ability to have intimacy or relationships. It just changes every part of you," Jennifer explained.
In collaboration with partner organizations campaigning to end FGM by 2030, women’s rights organization Equality Now submitted an Amicus Brief in the Nagarwala case. Equality Now stands by these legal arguments and is committed to working tirelessly until all women and girls are protected from FGM in laws at both the federal and state level.
While the decision in the Nagarwala case applies only to the Eastern District of Michigan, by questioning the veracity of the federal law criminalizing FGM, the MoJ is placing thousands of girls at risk and is sending a damaging message to law enforcement, the courts and to the courageous survivors who are breaking the silence around FGM, both in the U.S. and across the international community.
America needs both federal and state laws and policies to effectively address FGM. This is not a single state issue. Girls are taken across state lines, as we saw in the Nagarwala case, or taken outside the country for purposes of FGM, and this requires a federal response. State laws and policies are needed for the prevention, education, and provision of services at the local level.