Yesterday a Detroit-based federal judge dismissed criminal charges lodged against eight defendants for their alleged role in the female genital mutilation (FGM) of nine young girls. The presiding judge, Ronald Reagan-appointee Bernard Friedman, concluded that Congress lacked the power to pass 18 U.S.C. § 116, the federal statute that criminalizes FGM at the national level.
The multi-count indictment had charged Dr. Jumana Nagarwala with performing the procedure at a Livonia, Michigan clinic owned by co-defendant Dr. Fakhruddin. Farida Attar and Tahera Shafiq, who assisted Nagarwala in performing the procedure, were also named co-defendants and charged with conspiring to commit FGM and aiding and abetting in the commission of the crime. The girls’ mothers were also charged, including two Minnesota women who allegedly “tricked their 7 -year-old daughters into thinking they were coming to metro Detroit for a girls’ weekend, but instead had their genitals cut.”
It should go without saying that FGM is a horrific procedure and when inflicted on a minor constitutes a grievous form of child abuse. That said, Friedman reached the correct legal conclusion in dismissing the FGM and conspiracy charges. Here’s why.
The federal government is a government of limited and enumerated powers and thus may only criminalize (or regulate) conduct if granted authority to do so in the U.S. Constitution. Abuse or assault are part of the criminal law, and the heart of state power. The federal government could criminalize transporting girls across state lines to obtain FGM, but the federal statute under which the defendants were prosecuted does not do so now, so this is currently a matter for the states. While Michigan was remiss in not having a law against this, it cannot be applied retroactively
The government argued Congress had the power to criminalize FGM based on two distinct theories. First, the government argued that Article II, Section 2, Clause 2, of the federal Constitution, which gives the president “Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur,” provided Congress the authority to criminalize FGM.
The federal prosecutors then pointed to two provisions of the International Covenant on Civil and Political Rights, which the Senate ratified in 1992: Article 3, which directs signatories to “ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant”; and Article 24, which provides that “[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” The government then argued that criminalizing FGM was “necessary and proper” to carry out these two treaty obligations.
Friedman rejected the government’s reliance on the 1992 treaty, concluding that criminalizing FGM was unrelated to Article 3’s “equal rights” protection and Article 24’s non-discrimination mandate. He further reasoned that even if the treaty could be read so broadly, “federalism concerns deprive Congress of the power to enact this statute.” As Friedman aptly explained, “The constitutional processes in the United States include the important – indeed, foundational – division of authority between the states and the federal government.”
Here, Friedman pointed to the Senate Committee on Foreign Relations report, which, in recommending the Senate ratify the treaty, stated “that this Convention shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriated [sic] measures for the fulfillment of the Convention.”
The Bush administration likewise clarified that “even though the Covenant will apply to state and local authorities, it will be implemented consistent with U.S. concepts of federalism. The proposed understanding serves to emphasize domestically that there is no intent to alter the constitutional balance of authority between the State and Federal governments or to use the provisions of the Covenant to ‘federalize’ matters now within the competence of authorities of the state or local governments . . . .”
Or, as the late Supreme Court Justice Antonin Scalia said more pointedly in an analogous case, any other ruling would place “Congress only one treaty away from acquiring a general police power.”
Federal prosecutors also argued Congress has authority under the Commerce Clause to criminalize FGM. The Commerce Clause grants Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” but has been expansively interpreted by the Supreme Court to allow the federal government to regulate activities that substantially affect interstate commerce.
Yet, as Friedman detailed in his analysis, that power is not unlimited. Thus, for instance, Congress’ attempts to criminalize the possession of a gun within 1,000 feet of a school have failed on constitutional grounds. So too did Congress’ attempt to federalize the crime of rape. Similarly, Judge Friedman reasoned in a thorough 28-page opinion, Congress lacked the authority to make FGM a federal crime.
Yesterday’s decision has prompted a public outcry, with the Detroit Free Press reporting that “FGM survivor and social activist Mariya Taher, who heads a campaign out of Cambridge, Massachusetts, to ban FGM worldwide,” called Friedman’s ruling a gut-punch. “This is crazy,” Taher told the Free Press, “stressing she fears the ruling will put more young women in harm’s way.”
Yasmeen Hassan, who serves as executive global director for Equality Now, added that Friedman’s decision “sends a disturbing message to women and girls. ‘It says you are not important.’” Hassan claims the ruling served as “a federal blessing” for FGM, and saw the holding that the federal government cannot regulate FGM as “very bizarre.” But there is nothing bizarre about Friedman’s ruling. Rather, his opinion is right—both legally and ideologically.
As abhorrent as FGM is, the statute as currently written exceeds Congress’ constitutional authority. That is not a federal blessing on parent-coerced mutilation: It is an acceptance of our constitutional framework, wherein the federal government is one of limited and enumerated powers and criminalization of FGM and other forms of child abuse remain the province of state governments, which possess general police powers.
Twenty-seven states currently prohibit FGM, including now Michigan. After news broke of Nagarwala’s arrest, Michigan passed a law prohibiting FGM and subjecting both doctors and parents to up to 15 years imprisonment for it.
While the newly enacted Michigan law cannot be applied retroactively to the defendants in this case, the state’s general child abuse provisions do apply. Additionally, the federal conspiracy to obstruct an official proceeding charges lodged against Nagarwala and a co-defendant who assisted in the FGMs remain pending. If convicted, both could be sentenced to up to 20 years in prison.
Although the public outcry is understandable, it is misplaced. And the misreporting of the story will do more harm to young girls at risk of FGM than Friedman’s constitutionally required ruling. That’s because inaccurate reporting creates the appearance that, in America, FGM is legal. It is not. It is just not a federal crime.