The Feds Can’t Prosecute Multicultural-Based Mutilation?
A judge struck down a 1996 law outlawing the barbaric practice of female genital mutilation.
In a decision that expands the idea of states’ rights to the point of absurdity, U.S. District Judge Bernard Friedman ruled that the female genital mutilation (FGM) law passed by Congress in 1996 was unconstitutional, thereby dismissing charges against two Michigan doctors and six others accused of subjecting nine minor girls to a ritual best described as barbaric.
The Federal Prohibition of Female Genital Mutilation Act was passed on Sept. 30, 1996 under the Commerce Clause of the Constitution. It states that “whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.” An exception is made for health or medical reasons, but Congress also made it clear that anyone who transports a person to or from the United States or its territories for the purpose subjecting that person to FGM can also be fined or imprisoned, or both.
At the time, former Senator Harry Reid explained Congress’s rationale, stating, “There is no medical reason for this procedure. … It is used as a method to keep girls chaste and to ensure their virginity until marriage, and to ensure that after marriage they do not engage in extramarital sex.”
Friedman, a Ronald Reagan appointee, wasn’t buying it, and his ruling cited the Commerce Clause as the primary reason why. “That clause permits Congress to regulate activity that is commercial or economic in nature and that substantially affects interstate commerce either directly or as part of an interstate market that has such an effect,” Friedman wrote. “The government has not shown that either prong is met. … Nor has the government shown that FGM itself has any effect on interstate commerce or that a market exists for FGM beyond the mothers of the nine victims alleged in the third superseding indictment.”
Friedman also questioned the federal government’s motive. “If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute?” he asked.
The judge is certainly correct regarding the latter assertion. The law wasn’t enforced once in 22 years prior to former Attorney General Jeff Sessions deciding to prosecute Dr. Jumana Nagarwala for performing the procedure, Dr. Fakhuruddin Attar for letting Nagarwala use his clinic to do so, Attar’s wife, Farida, for assisting Nagarwala in the examination room, and the parents for having their children’s genitals cut.
Yet Friedman’s assertion that there was no market rings exceedingly hollow. Despite citing only nine specific victims in their case, prosecutors alleged that Nagarwala had performed the procedure on as many as 100 girls over a 12-year period.
Moreover, five of the nine girls were transported from Minnesota and Illinois, both of which are among the 27 states that have enacted anti-FGM statutes of varying degrees. The other four girls were from Michigan, which passed its own anti-FGM statute last year because of this case, and while those accused could be prosecuted going forward, the law cannot be applied retroactively.
And finally, the Centers for Disease Control estimate that up to 500,000 U.S. women and girls are at risk of being mutilated in the name of religion.
In another line of attack, the feds asserted that FGM is an “illegal form of healthcare” that could thus be deregulated by Congress. Friedman countered that FGM is “a form of physical assault, not anything approaching a healthcare service.”
The ruling should surprise no one attuned to a nation besieged by moral ambiguity and infatuated with multiculturalism. It is our moral ambiguity that abides the ultimate form of physical assault known as abortion, which is not only defined — and subsidized — as a “healthcare service,” but wholly immunized from states’ rights, courtesy of the Supreme Court’s 1973’s Roe v. Wade ruling. It is our infatuation with multiculturalism that abides the partial or full removal of a child’s clitoris under auspices of religious freedom. The defendants are all members of an Indian Muslim sect known as the Dawoodi Bohra, a group that insists FGM is a “benign” procedure in keeping with their religious rituals.
Benign? Court records indicate some of the victims cried, screamed, and bled during the procedure, and one was given Valium ground in liquid Tylenol to calm her down. Records also show that two of the victims — both seven years of age — were tricked by their mothers into thinking they were being taken to Detroit for a girls’ weekend, not a life-altering surgical procedure.
One of Nagarwala’s attorneys was extremely pleased by the ruling. Shannon Smith, who also believes she will win on appeal if the feds take the next step, declared, “Dr. Nagarwala is just a wonderful human being. She was always known as a doctor with an excellent reputation. The whole community was shocked when this happened. She’s always been known to be a stellar doctor, mother, [and] person.”
Regardless, this “stellar person” remains under indictment for conspiracy for traveling with the intent to engage in illicit sexual conduct. The charge carries a maximum sentence of 30 years. She and the Attars are also facing obstruction of justice charges for allegedly telling members of their community not to cooperate with investigators. That charge carries a maximum sentence of 20 years. The case is slated for trial in April 2019.
In the meantime, one might assume the passage of anti-FGM laws in the 23 states where none currently exist would be a slam dunk. Think again. In 2017, when Maine attempted to create several new felonies attached to the procedure, the ACLU of Maine opposed it as “nothing more than an attempt to single out behavior that is commonly attributed to certain religious and ethnic communities as different from other forms of abuse.”
The bill ultimately failed despite the presence of 10,000 Somali refugees in that state, who come from a nation that embraced the procedure when it adopted Sharia Law as the nation’s legal code in 2009. The ACLU opposes FGM, but further insisted it preferred working with Maine’s immigrant communities to find “evidence-based solutions that will truly protect these vulnerable populations.”
Attorney Jerome Sabbota, who defended one of the women who abetted the procedure involving the Minnesota children, also defended her exoneration, saying, “These are deeply religious people, and a lot of people don’t understand that.”
So were the Aztecs, who embraced human sacrifice, and Hindis, who, though it is outlawed, still engage in the practice of “sati,” which is the ritual burning of a widow on her husband’s funeral pyre.
Dr. Phyllis Chesler, fellow at the Middle East Forum and Emerita Professor of Psychology and Women’s Studies insists that FGM “has no place in the West.”
Unless Friedman’s ruling is overturned on appeal, and/or Congress fixes the law, it apparently does.
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