This week, a federal Judge in the Michigan State, USA passed a ruling dropping all the charges Dr. Nagarwala, a Medical Doctor from Detroit who has been accused of Female Genital Mutilation.
The charges were brought against the Doctor including the accessory before and after the fact under the Female Genital Mutilation Act in 1996. The Judge made a decision and concluded that the Congress overstepped their boundary when they passed the 1996 Act.
The reason for saying such was that according to the United States Law, criminal offense ought to be provided by the State and not the Congress. By making the Act a federal law, it goes contrary to the Constitutional provision enshrined. Thus, the Act which is a federal law criminalizes FGM which ought to state duty.
The Judge, therefore, added that States should pass the law individually and not rely on the 1996 Act otherwise, a reliance on the Act is unconstitutional. This decision has resulted in a lot of backlash and perplexed feeling in the communities where FGM is prevalent in the United States.
While the world is taking advance steps towards ending FGM, the United States is taking a step back to review its laws.
Female Genital Mutilation also commonly referred to as FGM is the procedure that cuts, alters or removes the external female genitals. The FGM has usually carried out for non-medical reasons and such procedure is a cultural practice.
The external female genitals that are cut, removed, altered or disfigured are the Clitoris, the Labia Majora or the Labia Minora.
The World Health Organization (WHO) classified four (4) main types of FGM. They include:
- Type 1: Clitoridectomy which is the total removal or the partial removal of the clitoris.
- Type 2: Excision which is the total removal or the partial removal of the clitoris including the Labia Minora. The Labia Major is usually not affected.
- Type 3: Infibulation which is the repositioning of the Labia Minora and Labia Majora by narrowing the vaginal. This procedure is severe and recorded as the worst type of FGM.
- Type 4: Other procedure which covers for all types of FGM that cannot be classified under 1 – 3. This includes the burning, cutting, scraping or mutilation of the female genitals.
FGM is also referred to in some countries as female genital cutting or female circumcision and it is estimated to affect more than 125 million women and girls globally. In the United States, it is estimated to affect more than 500,000 women and girls of which almost 35% are girls under the age of 18 years.
In the United States, the procedure is prevalent among immigrants. Most of these women enter the US having their genitals already cut while the children of the immigrants have theirs cut by traditional practitioners in the US or are sent back to their home country during summer breaks for the procedure to be carried out.
Under the Federal Law of the United States, particularly 18 US Code $116 FGM procedures are declared illegal including the transportation of girls out of the US with the sole intention to carry out the procedure.
FGM is usually a common practice in North and South Africa but it is currently banned in at least 59 countries. In fact, several international treaties criminalize FGM as WHO describes it as a violation of Human Rights. It violates the right that offers equal protection of genders.
Therefore when the female genital without the consent of the individual or even with consent, but was not adequately given, is mutilated for religious, sociological, non-medical reasons or for some form of ritual or historical deductions, it is a violation of their rights.
The FGM practice was prevalent in the 19th century when it was introduced by doctors as a treatment of psychological or sexual abnormalities such as masturbation in women, lesbianism, hysteria, depression, and nymphomania. During that era, female sexuality was largely suppressed as it was believed that men are more sexual than women. Thus, masturbation among women has deemed an abnormality and symptomatic of varying diagnosis such as reflex neurosis.
Reflex Neurosis was the excessive stimulation of the nerves surrounding the vaginal walls and it among others was covered by the Blue Shield Insurance. It was later stopped in 1977. The solution to the diagnosis was either type of FGM procedure enumerated above.
The Center for Disease and Prevention Control (CDC) reported that 513,000 women and girls are either victim or at risk of FGM. From the figure, 1/3 are girls under the age of 18 years. The first report of FGM was in 1996 from a 1990 census report. It was estimated then that 168,000 women and girls were victims or at risk of FGM.
Out that figure, 48,000 were girls under the age of 18 years. Within a decade, the figure has tripled. The figures as calculated by the African Women’s Health Center located at Brigham, the PRC and the Women’s hospital deciphered that the increase in the figures can be attributed to the increase in immigration in the country.
The States with the highest number of FGM are Washington, Virginia, Maryland, Minnesota, California, New Jersey, New York, and Texas. Out of these states listed, the cities with the highest rate are Seattle, Washington, New York, Los Angeles, and Minneapolis-St. Paul. From the survey, the prevalence of women were mostly immigrants from Egypt, Somalia, and Ethiopia.
There are several legal frameworks which include State, Federal and International Policy put in place to end FGM at least within a generation. Other than the policies, their judicial decisions too but they are rare. Until 2018, there are only two (2) known cases of FGM in courts. Each of these shall be discussed accordingly.
State and Federal Policy
In 1993, Congresswoman Pat Schroeder introduced the Female Genital Mutilation Act to the Congress. In 1996, the Congress passed the Female Genital Mutilation Act of 1996 which makes it illegal for anyone to perform or aid another to perform FGM on women and girls.
It also made such procedure a felony if performed on girls under 18 years of age. The Act introduced education, sensitization, and outreach in communities and schools to inform the people about FGM. Thereafter the Transport for Female Genital Mutilation Act was also passed to prohibit the transportation of a girl outside the US for FGM or with the intention to perform FGM.
The Act also prohibited “vacation cutting” in girls and women. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act were passed to educate visa applicants from the 28 high-risk countries on the US stance on FGM prior to their arrival into the US.
The International bodies have condemned acts of FGM through varying provisions of the law and enactments. Although most of these laws are subject to a country’s ratification and adoption for it to be an effect, instances of these laws include
- The Universal Declaration of Human Rights 1948
- The Convention on the Rights of the Child 1989
- The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979
- CEDAW’s General Recommendation 1990
The CEDAW’s General Recommendation led to the introduction of the United Nations Population Fund (UNPF) and United Nations Children’s Emergency Fund (UNICEF) which is targeted at ending FGM within a generation. FGM was also included as one of the practices that affect gender equality by the United Nation’s Sustainable Development Goals.
This week, the US District Judge, Judge Bernard A. Friedman ruled that the FGM Act of 1996 was unconstitutional. The reason for such ruling was Dr. Jumana Nagarwala was charged with FGM of two girls including 100 more in the past.
The medical doctor is a doctor with Henry Ford Hospital in Detroit. He was charged together with Fakhruddin Attar and his wife Farida Atta who were owners of the medical clinic where it was performed. The Accused denied the charges and argued that what they did was not contrary to the Commerce Clause which was stipulated in the Act. The Judge ruled in their favor.
The Judge held that the Act was not the duty of the Congress to pass but that of the State. Thus, the accused should be brought under State laws in either Michigan (where the doctor is practicing) or Detroit (where the alleged offense was committed) criminalizing FGM and not a federal law.
The US Attorney on the case argued that adding that the FGM Act is unconstitutional goes contrary to all international treaties signed by the US against gender equality for all gender and it also exposes one to multiple risks associated with FGM such as depression, hysteria, frigidity, emotional trauma, nymphomania, etc.
Prior to that, the first conviction of FGM was in Georgia, the USA in 2006 where an Ethiopian immigrant was charged with aggravated battery and cruelty to children. Her two-year-old daughter was circumcised by her with a pair of scissors. The court found her guilty. Subsequently, in 2010, the State of Georgia passed a law with criminalizes FGM.
There are several controversies surrounding FGM. In 2010, the American Academy of Pediatrics faced backlash for providing an alternate name to FGM. They called it a “ritual nick” and claimed that It is far better than FGM.
This was published in the Journal section and was titled “Education of Patients and Parents”. After the backlash faced from various medical institutions globally, the organization withdrew the article and propagated that they are against all forms or procedures of FGM and warns its member to disassociate themselves from it.
The recent controversy is the Judge’s decision. The Judge gave its opinion saying that the law was unconstitutional and criminalizing it was not one of the permissible uses of powers by the Congress.
He added that inasmuch as the people would think that the Act is protecting the girls from FGM, it is inadvertently exposing them to more risks of FGM. He noted that the Supreme Court passed that criminal activities are policed by individual states and not the federal government.
He pointed out that the law was passed under the economic or commercial enterprise whereas it should have been a criminal assault.
There is an expectation of an Appeal on the case by April 2019.
FGM is a prevalent violation of human rights. The mutilation of the female genitals either by cutting, alternating or removing is a huge cry for intervention. FGM is historical as it is performed in several countries across the world.
At the moment, FGM has been banned in 44 countries but this does not stop the trafficking of girls outside the banned countries to other countries allowing it for it to be carried out. From the recent decision in the United States, it is expected to be a wake-up call for individual states to pass laws criminalizes FGM and making it illegal.