Robert Snell | The Detroit News

Detroit — Federal prosecutors will not appeal a judge's order dismissing female genital mutilation charges in the first criminal case of its kind nationwide, concluding the law is weak and needs to be rewritten.

The decision delivers a setback to international human-rights groups opposed to female genital mutilation that have closely followed a case that has raised awareness in the U.S. of a controversial procedure and prompted Michigan to enact new state laws criminalizing the procedure.

"Although the department has determined not to appeal the district court's decision, it recognizes the severity of the charged conduct, its lifelong impact on victims, and the importance of a federal prohibition on FGM committed on minors," Solicitor General Noel Francisco wrote in a letter to Congress on Wednesday.

The decision comes six months after U.S. District Judge Bernard Friedman delivered a significant, but not fatal, blow to a novel criminal prosecution involving a team of Metro Detroit doctors accused of mutilating the genitalia of nine girls at a Livonia clinic since 2015.

Friedman concluded the law is unconstitutional and concluded Congress had no authority to enact a law criminalizing female genital mutilation.

“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.”

The Justice Department has submitted a legislative proposal to Congress that would, among other things, amend the federal law and make it a crime when a defendant or victim crosses state lines to undergo the procedure.

Clarence Tabb Jr., The Detroit News

The case emerged in April 2017 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 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.

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 have accused the government of overreaching.

Prosecutors have alleged that two girls’ clitorises were completely removed, but the evidence of female genital mutilation involving all of the girls is lacking, Nagarwala lawyer Shannon Smith said.

"The defense is pleased to see the Justice Department has reached the same conclusion as Judge Friedman, however, the case will still be heading to trial on the remaining charges," Smith wrote in a text message to The News on Friday. "At trial the defense is confident a jury will agree that there was no female genital mutilation in this case and see that the prosecution relied on an unreliable medical expert in pursuing this case."

Women’s rights groups blasted 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 Justice Department's decision not to pursue and appeal drew an outcry on social media Thursday, including reaction from Hillary Clinton.

There is a federal law banning FGM. It is the Department of Justice’s responsibility to defend it.



They’re choosing instead to abandon the fight for the health and human rights of women and girls around the world.



If you agree that’s outrageous, let them know: 202-353-1555 https://t.co/ucx74UIFrC — Hillary Clinton (@HillaryClinton) April 11, 2019

The criminal case is is pending because Friedman left intact conspiracy and obstruction charges that could send Nagarwala and three others to federal prison for decades.

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

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

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

During a hearing last fall, 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.

Prosecutors say prepubescent girls were cut at a Livonia clinic owned by Dr. Fakhruddin Attar. His wife, Dr. Farida Attar, also is charged in the case.

Robert Snell/The Detroit News

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.

rsnell@detroitnews.com

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