Congress, Constitutional Law, Courts, Criminal law, Politics

Federal Judge Strikes Down Law Criminalizing Female Genital Mutilation

There is an important federalism ruling out of Michigan that will likely rekindle the debate over the continuing inherent powers of the states vis-a-vis the federal government.  Despite the massive expansion of the federal criminal code, most crimes were viewed as state not federal matters in the early days of the Republic.  Now, a federal judge in Michigan has ruled that Congress went beyond its constitutional domain in 1996 in criminalizing female genital mutilation.  The issue is not whether FGM should be criminalized but whether this is a state or a federal matter under the Constitution.  Over half of states (27) have criminalized FGM.  Senior United States District Judge Bernard A. Friedman threw out six of the federal charges against Jumana Nagarwala, who was accused of performing FGM on girls around the age of seven.  

Judge Friedman’s decision rests on a series of cases where the Court ruled that certain crimes and criminal conduct remain state matters.  In United States v. Morrison, 529 U.S. 598 (2000), the Court struck down the Violence Against Women Act (“VAWA”), which established a private right of action for victims of “crimes of violence motivated by gender.” The Court noted that the crime under the statute did not regulate economic activity and did not raise a truly interstate matter:

“Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”

What is striking is that many of the arguments against this ruling cite the impact on young girls which is clearly horrific and intolerable.  However, that is the type of argument rejected in Morrison: “[The VAWA] is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families. But the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. . . .”

Judge Friedman’s analysis is dispassionate and direct:

“As the Supreme Court has stated, “[a] criminal act committed wholly within a State ‘cannot be made an offence against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States.'” Bond, 572 U.S. at 854 (quoting United States v. Fox, 95 U.S. 670, 672, 24 L. Ed. 538 (1878)). For the reasons stated above, the Court concludes that Congress had no authority to enact 18 U.S.C. § 116(a) under either grant of power on which the government [*42]  relies. Therefore, that statute is unconstitutional.”

While one can clearly disagree with his conclusions, the decision is well-written and well-analyzed and certainly worth a read.

Here is the decision:  Nagarwala Opinion

43 thoughts on “Federal Judge Strikes Down Law Criminalizing Female Genital Mutilation”

  2. I think FGM should be illegal and probably already is under existing child abuse statutes, but I have to agree that it is a not a federal issue. I would like to see more courts roll back claimed federal jurisdiction in all areas. As the federal government looks more and more like the EU, just a gigantic, autocratic, anonymous and unaccountable bureaucracy the more I want to see it clipped back. Let the states deal with FGM and see if the federal government can remember what federalism is.

  3. But where is our “multi-cultural empathy and sensitivity” in this??? I think it is sooo white-privilege-y for us to tell our Muslim citizens that they must adapt to our rules! It is the ultimate in cultural appropriation! Diversity is strength! Who are we to dictate to other peoples how they must live???

    Either that, or the whole multi-cultural spiel is a bunch of crap.

    Squeeky Fromm
    Girl Reporter

    1. Child abuse isn’t multicultural; it’s criminal. The same is true for spousal abuse and rape and assault and various other violent crimes.

      You can support multiculturalism but still want children protected from abuse, and there is no question that female genital mutilation is abuse because it isn’t consensual and it harms the body irrevocably.

      1. It is your OPINION that FGM is criminal. Someone from a different cultural background simply may not see it that way.

        That is what the whole post-modern cultural stuff is about. That everybody sees stuff from their own perspective, sooo who is to say what is good and bad, or right or wrong???

        Personally, I like the Old Rules better, and like you, I would consider FGM a bad thing, and against the law. BUT, if I believe that, then I also believe that two queers (same sex ones) should not be allowed to marry. And that people should not be permitted to legally smoke pot. Or to have abortions.

        That is the problem with the Post Modern stuff. It guts the rules by which civilizations survive. And since people need rules, they start inventing new rules! Like the social justice warriors. Rules which don’t work, and tend to destroy civilization at its core.

        Squeeky Fromm
        Girl Reporter

        1. Queers should be able to marry because contract laws should be gender neutral. A contract between a male and a female is equal to the same contract between two people of the same sex.

          If you enter into a contract to buy a car from a man, the law will not distinguish if you buy the same car from a woman instead. Contracts must be gender neutral to ensure fairness.

          1. ProsecutorMilesEdgeworth – the whole marriage thingie should be handled under partnership law. And you can have as many partners as you can handle. 😉

          2. Funny though how most contracts for cars end up in “law” courts, and most domestic relation contracts end up in “equity” courts.

            Mixing queer marriages into regular marriages is a bad thing in the long run, because it basically puts simple lust into the same fabric of importance as committed relationships between men and women. It is the same in my mind as men pretending to be women, and taking hormone pills. Just a farce.

            And I think that our society is overrun with farces right now. What we need is some serious adult behavior, and instead, we get queers pretending to be man and wife, men pretending to be women, women, pretending to be men, people like Hillary pretending Black Girl Magic isn’t Black Girl Tragic, etc.

            I think the damage will be slight, because what is one more act of stupidity in a Sea of Stupidity? I mean in one way, Justice Whoever’s statement of “equality of dignity” is kinda morbidly hilarious when one considers he is talking about act of Sodomy, which I saw in a dirty dvd my ex-boy friend had, and it looked ridiculous. And sickening.

            Squeeky Fromm
            Girl Reporter

          3. Gays can marry now, but as an attorney you should know that the history of law relating to marriage draws very little on contract. Generally, I believe it was the province of church law. A better argument than contract has to be made for it. I would have preferred that gay partnerships were based on contract rather than marriage because I doubted such an extensive field of law could be changed without some bizarre social disruption such as we see now with marriage cakes, and the rest of the grievance suits. It has gone from ‘We just want to be tolerated’ to ‘Make me a cake, or else!’

            1. American marriages have always been legal contracts from a law perspective.

              This is because the USA doesn’t have an established religion, so church procedures are irrelevant as far as American law is concerned.

              This contrasts with the UK which has the Church of England as the government-linked church, which holds sway over British law.

              But many Anglican clergy now do support same-sex marriages, so the church opposition there has been melting away.

  4. “What is hateful unto you, do not do unto your neighbor. That is the whole Torah, all the rest is commentary. Now, go and study.”

    – Hillel

  5. I can understand the judge’s reasoning that this form of child abuse and mutilation is under state jurisdiction, and that there is no current federal law that prohibits it.

    What I cannot understand is why this terrible crime is not punished as the child abuse that it is in all 50 states. There may not need to be a specific law against it, as it is clearly mutilation. However, a specific law would address the religious issue. We have freedom of religion in our Constitution, but our people are not allowed to sacrifice their children, for example, or kill them because their religion believes they will rise from the dead.

    For those who may not know what Female Genital Mutilation is, or who believe its euphemism “female circumcision” puts it on a par with male circumcision, let me enlighten you. The more severe cuts leave a woman with a pinhole opening, and hard scar tissue that must be cut open by her husband on their wedding night. Not only has she lost her clitoris, leaving intercourse a pleasureless act, but the scar tissue has no elasticity. The act will forever be excruciatingly painful.

    https://www.unfpa.org/resources/female-genital-mutilation-fgm-frequently-asked-questions

    Here are the four types of mutilation performed on girls, often as young as 5 years old without anesthesia:

    Type I, also called clitoridectomy: Partial or total removal of the clitoris and/or the prepuce.
    Type II, also called excision: Partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora. The amount of tissue that is removed varies widely from community to community.
    Type III, also called infibulation: Narrowing of the vaginal orifice with a covering seal. The seal is formed by cutting and re-positioning the labia minora and/or the labia majora. This can take place with or without removal of the clitoris. (Infibulation leaves only a pinhole opening for menstrual fluid to try to escape, and necessitates cutting the woman open to have intercourse. It is a physical seal and guarantee of virginity.)
    Type IV: All other harmful procedures to the female genitalia for non-medical purposes, for example: pricking, piercing, incising, scraping or cauterization.

    Female Genital Mutilation has one purpose – to control the sexuality of women, permanently. It was used to prevent women from desiring affairs. After all, these women were given to strange men, who often had multiple wives. Realistically, those wives would not be very attached to them, and would be romantically unsatisfied. This mutilation extinguishes their desire for any sort of romantic connection outside the marriage. The more severe infibulation leaves some women eager for their husband to take multiple wives and concubines, as it would relieve them of the horrors of trying to have agonizing sex in that condition.

    Historically, the men treated women as possessions. Men were free to sleep around, rape, and pillage in their warrior societies, while the women were permanently mutilated in order to control their desire for romantic fulfillment. Types I and II are more common in the Middle East. Although it doesn’t leave the woman with a seal, it does forever extinguish any enjoyment they might have had in the act, destroying a level of intimacy they could have enjoyed with their husband.

    All this is done to very young girls, often 5 years old. In Somalia, there is a certain walk described for the freshly cut girls. It’s like they are trying to hold a ball with their knees. It is their agonizing attempt to walk with such a terrible injury.

    The judge may have been right that this case did not apply the law correctly, and there is no current federal law. The United States needs to get its act together and legislate against this mutilation of little girls in every state. You do NOT in fact have to respect every single part of every single culture around the world. Every person who lives in the United States has to obey our laws. Those in cults who starve their children or give them to pedophiles as child brides in the name of a warped religion do not get a pass, nor do Muslims who cruelly mutilate their girls.

    The girls are under the age of consent and therefore this is a crime.

      1. There is precedent for which a person can be charged on the state level for travel to foreign countries for the purpose of child and adult prostitution. Essentially it criminalizes a person in the state who books or arranges travel within the state.

        https://app.leg.wa.gov/RCW/default.aspx?cite=9A.88.085

        http://app.leg.wa.gov/RCW/default.aspx?cite=9.68A.102

        I can see a federal law enacted where the feds criminalize travelling from a state for the purposes of FGM where the state has a prohibition against such.

    2. Another survivor’s story:

      https://www.youtube.com/watch?v=UKT1MX-RnmU

      It is often women who arrange it, perform it, and hold the screaming and crying little girls down. This is perpetuated by women on women because they have been brainwashed to sincerely believe that a woman who is not cut is a slut who must be outcast and lose her place in their society. The family honor rests upon her small shoulders. The women believe if they do not have their girls cut, they will never make a good marriage, but marriage means pain and very likely an early hemorrhagic death in childbirth.

      FGM is a betrayal by women upon girls.

    3. This is a ‘7th Century Barbaric act AGAINST females, that males of this misogynist cult of Muslims/Islam have performed on little girls and it is their TRUE feelings about their females….domination, treating them like possessions and controlling them for the rest of their lives.

      Those who perform this in America should be “Charged with child endangerment and see prison time.”
      These cults are known to send their “little girls on vacations…to HAVE this heinous deed performed on them, and likewise IF they leave from America, they should be charged if this has occurred overseas.”

      The MORE we have Muslims/Islamists here in America, the MORE this is done and it is UGLY, Painful and a CRIME AGAINST WOMEN.” So, “WHERE are the ‘Holly-woodheads’ who come TO the aid of women supposedly- on THIS?” ROSIE? KATHY? KATY PERRY? MELISSA MILANO? STREISAND? ETAL???

      ABSENT, IT WOULD APPEAR. This is What they SHOULD BE PROTESTING, SINCE THEY CAIM TO BE “ALL IN FOR FEMALES.” THEIR ‘SILENCE IS DEAFENING’

    4. A specific state law against FGM doses not have to raise a religious issue. Muslims remind us that it is a cultural practice and not exclusively done by Muslims. Some Christian/animists in Africa also do it.

      However, even if it were a religious issue it is not necessarily out of bounds for our legal system to forbid it. What if Aztecs in America decided to resume human sacrifice? ‘Oh! That’s a religious issue so we can’t do anything about it!” Nonsense. You can believe anything you want but you can’t do anything you want.

  8. “What is hateful unto you, do not do unto your neighbor. That is the whole Torah, all the rest is commentary. Now, go and study.”

    – Hillel

  10. My interpretation of federalism goes back to the core notion of legal practicality. Matters would be ineffective or impractical to legislate on a state-by-state basis, but which could be effectively regulated at the federal level are the legitimate province of Congress and the Executive.

    In this specific case, Minnesota’s outlawing of FGM was easily thwarted by taking the victim across state lines to Michigan. If easy evasion of state restrictions was a key factor in this case, the Judge erred in his conclusion that interstate commerce was not involved. I hope the WH and Solicitor General will appeal this poor decision.

  11. FGM NEEDS TO BE FEDERALIZED

    OR PARENTS WILL TAKE GIRLS ACROSS STATE LINES

    I appreciate this argument that too many federal laws are to cover crimes that could, or should, be state laws. But FGM is certainly an offense where people would have an incentive to cross state lines unless every state takes action.

    One should note that many major metro areas encompass more than one state. New York City includes Connecticut and New Jersey. Chicago includes Indiana and Wisconsin. Philadelphia includes New Jersey and Delaware. Washington DC includes Virginia and Maryland. Residents of those areas could easily cross state lines unless FGM was banned in every state.

  12. This illustrates the sorry state of affairs caused by state’s rights versus federal oversight. The fact of the matter is that crimes are being committed. There is no comparison between a parent opting for their male child to be a ‘helmet head’ rather than an ‘anteater’. Most males prefer ‘helmet head’ and most women as well. A foreskin is an unnecessary body part that will probably evolve away. However, female genital mutilation is another issue. It is extremely painful, leaves the female with lifelong physical problems and pain, and has absolutely no benefit for the female. It is an imposed cosmetic and ritualistic barbarity.

    An adult male can opt to have his foreskin removed for disease prevention and/or cosmetic reasons with no negative results. I have never heard of a female opting to have genital mutilation.

    If the judge wants to pull a Pilot here and wash his hands then he should be removed. He should have ordered the prosecution to replace the charges that he contested with those that were appropriate: child abuse, endangering the life of a child, and many more.

    When the legal system rubs itself off over these nonsensical details it is time to take a look and make some changes.

  13. The interpretation by the judge is sound, what I find distressing is the potential that the state attorney general and legislature had not found creating or prosecuting such a crime within their state. This abdication of duty to the citizenry is evident of a cultural decline that is the true source of our problem here.

  14. What a whacked out country. I’m still trying to have my foreskin reattached.

    1. There’s no comparison between FGM and circumcision. A male equivalent to FGM would be castration. Would Judge Friedman find no federal interest in boys being transported across state lines to be castrated? I have no doubt whatsoever that under those circumstances he would find a federal violation, but when it come to little girls, well, he has to parse the law to avoid offending the “culture” of barbarians.

      1. THIS, IS A “7TH CENTURY CULT OF BARBARISM, KEPT GOING BY MISOGYNISTS AND OLD FEMALES WHO HAVE DONE THIS FOR YEARS TO LITTLE GIRLS.” END THIS IN AMERICA IN ALL STATES, WE ARE A CIVILIZED NATION, NOT ATTACKING LITTLE GIRLS WHO CANNOT EVEN UNDERSTAND WHAT IS HAPPENING TO THEM. BAN THIS COMPLETELY, AND IF NOT, THOSE WHO PERFORM THIS, GO TO PRISON FOR CHILD ENDANGERMENT!

  15. This is why there are Trump judges and there are Obama judges and there are Bush judges and there are Clinton judges. Which president do we blame this idiotic decision on. I read better decisions upholding slavery.

    All I can hope is that he is overturned on appeal and the Circuit Court sends back his decision with an F on it.

    1. There is nothing wrong with the decision. The case can be prosecuted perfectly well in state court. If the state in question does not have FGM laws, it certainly has laws against assault and child abuse.

      General police power is the domain of the states not the federal government.

      1. JihnSay:
        General police power is the domain of all government entities which is why we have federal, state and local police forces. Think before you just push keys.

    2. Who is comrade Roberts, the Obama Justice, kidding? He illicitly commingled the definitions of the words “state” and “federal” to find for the irrefutably unconstitutional Obamacare and its “exchanges.” Preposterous! What an absurd hypocrite.

    3. PCS, “Upholding slavery?”

      In context, colonists-cum-Americans lived with legal, deeded with bills of sale, slavery for 246 years. Slavery was extant and axiomatic. Were there “decisions” on perceiving the sun?

  16. It appears that an erroneous decision was linked. The linked decision merely upholds a motion to dismiss one of the seven counts in the indictment, because the statutory definition of illicit sexual contact doesn’t support the facts of the charged offense. Presumably the decision dismissing the indictment on constitutional grounds (the subject of this post) was issued at a later time. In any case, it is difficult to reconcile the judge’s ruling with the facts of the case. He ruled that there was no federal interest because there was no interstate economic activity that would involve a Commerce Clause violation, yet these young girls were transported across state lines from Minn to Michigan to have the procedure performed. In the seminal Heart of Atlanta Hotel case, the hotel was found to have committed a commerce clause violation because it refused to serve food to blacks that had been grown or produced in other states, and prepared in Georgia. Many scholars found that analysis awfully thin, because there was no suggestion that the blacks couldn’t buy food elsewhere in Atlanta. It was more a situation of offending the sensibilities than suffering actual harm, along with the Court bending over backwards to find a way to outlaw segregation, no matter how legally tenuous. The black wannabe patrons certainly did not suffer any permanent harm which would remotely approach the barbaric mutilation of the young girls in the genital mutilation case. Essentially, an elderly male judge fails to see that sexually mutilating young girls is not as serious as refusing to sell a sandwich to a black person. That’s exactly why there isn’t much respect for the courts; too many nutty, half-senile judges making it up as they go along to suit their own biases.

    2. TIN:
      It’s a Mann Act (18 U.S.C. §§ 2421–2424) violation as you point out. Clear federal interest present to prevent interstate transportation of minors for sexual activity which FGM surely is in that it seeks to prevent female sexual pleasure on cultural grounds. In Hoke v, US, 227 U.S. 308 (1913), SCOTUS specifically cited the Commerce Clause as authorizing Congress to act to uphold the law preventing movement of persons for immoral purposes. Hoke stands for the proposition that Congress may also act under the Commerce Clause to support notions of personal or family morality. Egghead judges with outrageous decisions paying homage to third world barabarism like we see here are why great civilizations fall. At 75, Judge Freidman’s lost his fastball and ought to go home and tend his garden not abandon children to Dark Ages sexual practices.

          1. You Certainly got it right in this case…! ALL children need to be protected from these heinous acts by barbarian cults.

    1. I believe that we citizens have a right to arm bears. Not just bear arms ourselves. If the Congress passes some criminal statute making it a crime to arm a bear then Congress needs to be not seen and not heard and maybe shot by some bears.
      2nd Amendment.

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