Defense attacks female genital mutilation charges

Robert Snell | The Detroit News

Three doctors accused of cutting the genitalia of prepubescent girls want key charges dismissed, arguing that a law banning female genital mutilation is unconstitutional.

The request, filed Friday in federal court, is the first legal challenge to a 22-year-old 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 people and led to mutilating the genitalia of girls as part of a religious procedure practiced by some members of the Dawoodi Bohra.

Congress lacked authority to enact a law criminalizing female genital mutilation in 1996, lawyers for Nagarwala and Farmington Hills couple Dr. Fakhruddin Attar and Dr. Farida Attar.

The law "impermissibly expanded the scope and authority of the federal government’s powers beyond constitutional parameters, and the current prosecution cannot proceed without violating the Constitution of the United States," the lawyers wrote.

The filing is the latest attempt to dismiss charges filed by federal prosecutors. In January, U.S. District Judge Bernard Friedman dismissed the most serious count against Nagarwala and Fakhruddin Attar, a sex charge punishable by up to life in federal prison.

A trial is set for January 2019.

Now, the trio are targeting two additional charges that carry penalties of up to five years in federal prison: female genital mutilation and conspiracy to commit female genital mutilation.

Defense lawyers cite several reasons that Congress lacked authority to enact the female genital mutilation law:

• The law could not have been enacted pursuant to a section of the 14th Amendment because the section only applies to state actions.

• Congress also could not have enacted a female genital mutilation ban under the Commerce Clause because the procedure has nothing to do with interstate commerce, the lawyers claim.

"Notably, (female genital mutilation) is not an economic or commercial activity," defense lawyers wrote in the filing Friday.

If the doctors are successful in their legal arguments, they would still face an obstruction charge that could send them to federal prison for up to 20 years.

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

Nagarwala is accused of mutilating the genitalia of two Minnesota girls at a Livonia clinic in February 2017.

Prosecutors estimate up to 100 girls were cut during the 12-year conspiracy. So far, the indictment references six victims: two 7-year-old girls from Minnesota and four girls from Michigan ages 8-12.

Prosecutors say the girls were cut but defense lawyers say the procedure performed on the girls was benign and not female genital mutilation. They accuse the government of overreaching.

Nagarwala is accused of mutilating the Minnesota girls Feb. 3, 2017, at the Burhani Medical Clinic in Livonia, owned by Fakhruddin Attar.

Farida Attar is accused of helping arrange the procedure and being in the examination room while it was performed.

The couple were arrested last year and accused of accused of committing female genital mutilation, trying to cover up the crime and conspiring with Nagarwala to cut girls.

rsnell@detroitnews.com

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Twitter: @robertsnellnews