By Denise Noe for SiA Magazine (siamagazine.com)
In November 2018, U.S. District Judge Bernard Friedman dismissed several charges against eight people arrested in April 2017 in America’s first Female Genital Mutilation or FGM legal case. Authorities had alleged the accused had performed, or been complicit in FGM on nine minor girls. Judge Friedman ruled that the federal law under which the eight were charged was unconstitutional.
Friedman declared that Congress did not have the authority to outlaw or regulate FGM and that any laws about it had to be made at the state level. He wrote, “Congress overstepped its bounds by legislating to prohibit FGM because “local criminal activity” is “for the states to regulate, not Congress.”
According to the Detroit Free Press, Congress could not have passed a female genital mutilation ban under the Commerce clause since such procedures have “absolutely no effect on interstate commerce.” Friedman concurred, stating, “There is nothing commercial or economic about FGM.”
Of the 50 states, 27 have laws against FGM. Michigan is one of them but its law was passed after the procedures that led to charges in this case were performed so its law cannot be applied.
Those arrested in April 2017 included Dr. Jumana Nagarwala, accused of performing FGM; Dr. Fakhuruddin Attar, accused of allowing Dr. Nagarwala to use his clinic for the purpose; his wife, Farida Attar, accused of assisting Dr. Nagarwala in examinations and holding the hands of girls during the procedures; Tahera Shafiq, also charged with assisting; and four mothers charged with bringing daughters in for the procedures. The alleged victims were four Michigan girls, two from Minnesota and three from Illinois.
When Judge Friedmann’s ruling was announced, Dr. Nagarwala’s attorney, Shannon Smith, expressed joy: “Oh, my God, we won!” She elaborated, “We are confident we will win even if appealed.”
Smith enthusiastically sang her client’s praises. “Dr. Nagarwala is just a wonderful human being,” she maintained. “She was always known as a doctor with an excellent reputation. The whole community was shocked when this happened. She’s always been known as a stellar doctor, mother, person.”
In early April 2019, the Department of Justice decided against attempting to uphold the federal anti-FGM law. Solicitor General Noel Francisco wrote, “The Department has reluctantly determined that . . . it lacks a reasonable defense” of the law “as currently worded, and will not pursue an appeal.”
Attorney Shannon Smith stated, “The defense is pleased to see the Justice Department has reached the same conclusion as Judge Friedman” but called the victory “bittersweet,” adding she was certain that, had a trial been held, “a jury would agree that there was no female genital mutilation.”
According to a CBS News article, “Nagarwala said she performed a religious custom on girls from her sect, the India-based Dawoodi Bohra.” Interviewed by the writer of this article, Smith describes that custom as “making a sesame seed sized nick to the clitoral hood. A sesame seed sized amount is removed from the clitoral hood.”
When asked whether she believes Dr. Nagarwala’s acts were similar to female genital cosmetic surgeries, Smith replied, “I think what my client does is more minimal than what anyone would sign up for surgery for. I would imagine surgery would take off more.” Is there anything similar? “If a person in a shower nicked themselves with a razor, it would be similar,” Smith answered.
Warning - Adults Only: SiA Magazine Special Issue of Female Genital Cosmetic Surgery
Defending a physician accused of “FGM” has not been without hazard for the attorney. “I’ve been harassed and threatened,” Smith said. She elaborated that she believes widespread misconceptions have influenced the course of the entire case. “Quite frankly, it boils down to people not understanding the spectrum of genital cutting around the world and the term itself, ‘Female Genital Mutilation,’” Smith asserted.
“The particular procedure my client does has absolutely no effect on the ability to enjoy sex or have an active sex life.”
Asked to compare the procedure done by Dr. Nagarwala to male circumcision that is common and accepted in the United States, Smith answered,
“I think it’s far less invasive or extreme [than male circumcision], considering the amount that is removed. Male circumcision removes about 100 times more which is why I can respect people who are against all genital cutting but not people who have their sons circumcised and then say what my client did is wrong.”
Are the two procedures comparable? Click here for Yale University's Dr. Brian Earp comparison of female and male circumcision and problems with the FGM law.
Here is Brian Earp discussing his views on the dismissal of the federal FGM case.
Although Friedmann dismissed most charges, he left in place charges of obstruction of justice and traveling with intent to commit sexual activity. Smith also said Dr. Nagarwala was “obviously happy but still nervous and stressed out” by the dismissal of the majority of charges. Smith said Dr. Nagarwala “will not make statements or give interviews until the case is over.” Smith elaborated, “Dr. Nagarwala is not currently practicing medicine. She was on house arrest for a long period of time and lost her job as a result. But she still has her license.”
The charges still pending, obstruction of justice and traveling with intent to commit sexual activity, carry possible prison sentences of 20-30 years.
“We don’t believe these procedures are sexual activities and a judge already ruled they were not,” Smith comments. “After those charges were dismissed, the Government went back to the grand jury and got a superseding traveling indictment under a different portion of the same law. We will file a motion to dismiss obstruction of justice and have already filed a pending motion to dismiss the sexual activities charges.”
Read other features on female circumcision or khatna among the Dawoodi Bohra and other Muslim women in Southern Asia, such as India and Sri Lanka as well as Southeast Asia, such as Indonesia and Malaysia.
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