Attorney General Barr has decided not to appeal the Michigan case against Jumana Nagarwala—a doctor who was charged in 2017 with performing Female Genital Mutilation (FGM) at a Detroit clinic on nine girls between ages 7 and 13 from Michigan, Illinois and Minnesota. 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, claiming Congress did not have the right to criminalize the practice. In making its decision this week, the DOJ incorrectly relied 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 U.S. constitution, to adopt the law and that the power to outlaw FGM resided with individual states.
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—a form of gender-based violence and child abuse as well as an economic activity.
His ruling also failed to take into account the widespread occurrence of FGM in the U.S., where an estimated 513,000 women and girls who have undergone or are at risk of being cut and 29 states do not currently have laws against FGM.
The Department of Justice (DOJ) has indicated that they agree with Judge Friedman that there is a problem with the current federal FGM law, and 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. The decision by the DOJ not to appeal is simply wrong. Equality Now will 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.
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. We stand by these legal arguments and are 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, the MoJ is placing thousands of girls at risk by questioning the veracity of the federal law criminalizing FGM—and is sending a damaging message to law enforcement, the courts and to the courageous survivors who are breaking the silence around FGM around the world.
In the aftermath of Nagarwala case, a woman named Jennifer who was subjected to FGM as a child growing up in a conservative Christian community realized that there is no law banning FGM in her home state of Kentucky. She has launched a Change.org petition calling for one to be introduced.
“It’s also alarming because so many states don’t have laws,” she told Thomson Reuters when she shared her story publicly for the first time. “I don’t want Kentucky to be somewhere girls can be brought for FGM just because we don’t have a law… 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.”
Just this February, the DOJ issued a press release marking International Day of Zero Tolerance for Female Genital Mutilation. “Female genital mutilation/cutting (FGM/C) is a federal crime,” they wrote, “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 department not to challenge Friedman’s ruling.