Genital mutilation ban ruled unconstitutional; judge drops charges against sect

Robert Snell | The Detroit News

Detroit — A federal judge Tuesday dismissed female genital mutilation charges against several doctors in the first criminal case of its kind nationwide, ruling the law is unconstitutional.

The opinion by U.S. District Judge Bernard Friedman comes two weeks after defense lawyers mounted the first challenge to a 22-year-old genital mutilation law that went unused until April 2017.

That's when Dr. Jumana Nagarwala of Northville was arrested and accused of heading a conspiracy that lasted 12 years, involved seven other people and led to mutilating the genitalia of nine girls as part of a religious procedure practiced by some members of the Dawoodi Bohra, a Muslim sect from India that has a small community in Metro Detroit.

Friedman delivered a significant, but not fatal, blow to a novel criminal prosecution because the judge left intact conspiracy and obstruction charges that could send Nagarwala and three others to federal prison for decades.

The case is being closely followed by members of the sect and international human-rights groups opposed to female genital mutilation and has raised awareness in the U.S. of a controversial procedure and prompted Michigan to enact new state laws criminalizing female genital mutilation.

Friedman removed four defendants from the case — including three mothers accused of subjecting their daughters to female genital mutilation — while concluding Congress had no authority to enact a law criminalizing female genital mutilation, known as FGM.

“There is nothing commercial or economic about FGM,” Friedman wrote in a 28-page opinion. (Female genital mutilation) 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 U.S. Attorney's Office spokeswoman said officials are reviewing the judge's order and will soon decide whether to appeal.

“My honest reaction is ‘oh my God,’” Nagarwala’s lawyer, Shannon Smith, said Tuesday. “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 decried the judge’s opinion, calling it a setback for women and girls.

“It’s a giant step backward in the protection of women’s and girls’ rights,” said Shelby Quast, the Americas director of equality for the rights organization Equality Now. “Especially when there is a global movement to eliminate this practice.”

The case prompted a new law in Michigan criminalizing female genital mutilation.

In June 2017, Gov. Rick Snyder signed new laws that carried up to 15 years in prison for those convicted of mutilating female genitalia or transporting girls to other states for the procedure.

The judge's opinion angered state Sen. Rick Jones, R-Grand Ledge.

“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," Jones said in a statement. “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.”

Twenty-three states do not have laws criminalizing female genital mutilation, Quast said.

“Parents are aware of where there are laws against it and where there are not,” she said. “And they will take advantage of that.”

During a hearing this month, Nagarwala lawyer Molly Sylvia Blythe said Congress lacked authority to enact a law criminalizing female genital mutilation in 1996. Congress lacked authority under the Commerce Clause of the Constitution because the procedure has nothing to do with interstate commerce, she said.

Read: Defense tries to toss genital mutilation charges

Prosecutors countered, arguing the crime does involve interstate commerce. Christian Levesque, a trial attorney with the Justice Department's Human Rights and Special Prosecutions section, noted the procedure involves parents using cellphones to arrange the procedure and transport children across state lines who undergo surgeries utilizing medical tools in state-licensed clinics.

Read: Feds level new charges in genital mutilation case

The defense motion was the latest attempt to dismiss charges filed by federal prosecutors. In January, Friedman dismissed the most serious count against Nagarwala and co-defendant Dr. Fakhruddin Attar, a sex charge punishable by up to life in federal prison.

Prosecutors say prepubescent girls were cut at Attar's clinic in Livonia, which was managed by his wife, Dr. Farida Attar, who also is charged in the case.

A trial is set for April 2019.

"It is a victory for everyone when a court requires the government to adhere to the mandates of our Constitution," Fakhruddin Attar's lawyer, Mary Chartier, wrote in an email. "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."

Female genital mutilation is an internationally recognized violation of human rights.

Some members of the Dawoodi Bohra community who have spoken against the procedure say the surgery is performed to suppress female sexuality, reduce sexual pleasure and curb promiscuity, according to court records.

The procedure is most common in parts of Africa, the Middle East and Asia, along with migrants from those regions, says the World Health Organization.

There are four major types of female genital mutilation, including a partial or total removal of the clitoris.

Prosecutors have alleged that two girls’ clitorises were completely removed, but the evidence is lacking for at least one girl, Smith said.

The judge’s opinion drops charges against three mothers. They are:

Farida Arif of Oakland County, who was charged with participating in the conspiracy and having her daughter undergo female genital mutilation.

Two mothers from Minnesota, Haseena Halfal and Zainab Hariyanawala, who were charged last year with female genital mutilation and conspiracy to commit female genital mutilation. The allegations involve their daughters, who were 7 at the time of the procedure.

The order Tuesday also dismissed charges against Tahera Shafiq, 49, of Farmington Hills. She was accused of participating in the procedure involving the Minnesota girls.

“She’s done, for the time being,” Shafiq’s lawyer, Jerome Sabbota, said. “It’s wonderful. She can go about her life. These are deeply religious people, and a lot of people don’t understand that.”

Nagarwala is still facing a 30-year conspiracy charge and an obstruction count that could send her and the Attars to prison for 20 years.

Fatema Dahodwala of West Bloomfield Township, a mother of one of the alleged victims, also is charged with obstruction. Prosecutors allege Dahodwala, Nagarwala and the Attars conspired to hinder the investigation.

Worldwide, an estimated 140 million women and girls have undergone the procedure, according to the World Health Organization. More than 3 million girls in Africa undergo the procedure each year.

The procedure has been illegal in the U.S. since 1996, and there are no medical benefits for girls and women, according to the World Health Organization.

Friedman heard arguments two months after prosecutors filed new charges in the case. The new charges brought to a total of nine girls from three states who prosecutors say underwent the illegal procedure at Attar's medical clinic in Livonia since 2015.

Locally, most members of the sect belong to the Anjuman-e-Najmi mosque in Farmington Hills.

The indictment filed in September refers to three girls prosecutors say underwent a procedure performed by Nagarwala at the Burhani Medical Clinic on Farmington Road in Livonia in 2015. The three girls are from Illinois and were born in 2007 and 2008.

The clinic was shuttered last year.

Farida Attar was accused in the indictment of giving one girl Valium that was ground up in liquid Tylenol.

Prosecutors say the girls — four from Michigan, two from Minnesota and three from Illinois — underwent female genital mutilation, but defense lawyers say the procedure performed on the girls was benign and not female genital mutilation. They accuse the government of overreaching.

The order Wednesday could prompt Congress to tweak the federal law, said Peter Henning, a Wayne State University law professor and former federal prosecutor.

"Congress can solve this by going back and re-enacting the law," Henning said. “The problem is the law cannot be applied to conduct that happened before.”

rsnell@detroitnews.com

(313) 222-2486

Twitter: @robertsnellnews