Wednesday July 17, 2019
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Female Genital Mutilation Unconstitutional: Michigan Judge

The AHA Foundation, however will work with Congress to try to pass a new federal law to ban the procedure nationwide.

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FILE - A T-shirt warns against female genital mutilation. Its wearer attends an event, discouraging harmful practices such as FGM, at a girls high school in Imbirikani, Kenya, April 21, 2016.Image source: VOA

Women’s rights advocates said they were shocked when a federal judge in Michigan ruled this week that a law protecting girls from genital mutilation was unconstitutional. They called his decision a serious blow to girls’ rights. Legal experts said the judge made clear that U.S. states have authority to ban the practice, though only about half do.

Here is a look at the ruling, which dismissed several charges against a doctor accused of cutting nine girls in three states as part of a religious custom, and what could happen next.

The ruling, simplified

Dr. Jumana Nagarwala was among eight people charged in federal court in Michigan in connection with the genital mutilation of nine girls from Michigan, Minnesota and Illinois between 2015 and 2017. Authorities alleged that mothers brought their girls to Nagarwala when they were roughly 7 years old for the procedure.

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A badge reads “The power of labor against FGM” is seen on a volunteer during a conference on International Day of Zero Tolerance for Female Genital Mutilation (FGM) in Cairo, Egypt, Feb. 6, 2018. (VOA)

Nagarwala has denied any crime was committed and said she performed a religious custom on girls from her Muslim sect, the India-based Dawoodi Bohra.

On Tuesday, U.S. District Judge Bernard Friedman threw out mutilation and conspiracy charges against all the defendants. He ruled that a 1996 federal law that bans female genital mutilation was unconstitutional because Congress didn’t have the power to regulate the behavior in the first place.

Heidi Kitrosser, a law professor at the University of Minnesota, explained that Congress doesn’t have unlimited authority to legislate and can only make laws that fall within powers explicitly outlined in the Constitution.

In this case, Friedman found that Congress lacked authority to regulate the practice under the Commerce Clause because the procedure is not a commercial activity. He also said Congress’ treaty powers don’t give it authority, because there was no rational relationship between treaty obligations that call for equal rights and a law banning genital mutilation.

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Students arrive at the start of a social event advocating against harmful practices such as female genital mutilation at the Imbirikani Girls High School in Imbirikani, Kenya. VOA

But the judge clearly stated that the power to regulate female genital mutilation lies with state governments, which have primary authority in defining and enforcing criminal law.

“The court really could not have been clearer in suggesting this is something that states can do,’’ Kitrosser said.

Human rights fears

The AHA Foundation works to protect women from genital mutilation, honor violence and forced marriages. The group said the ruling was outrageous and set a precedent that cutting girls’ genitals was not a concern at the national level.

While 27 states have laws against female genital mutilation, including Minnesota and Illinois, the 23 states that don’t could become destinations for the procedure, said Amanda Parker, the foundation’s senior director. Michigan lawmakers banned the procedure after Nagarwala’s arrest.

“This is exactly how we got here. The defendants in this case had the victims shipped from Minnesota to Michigan, and the only way of holding them accountable for FGM was the federal statute,” Parker said in a statement. She said the court ruling “sends the message that the authorities are not serious about protecting girls, especially those in immigrant communities, from this form of abuse.”

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KAMELI, KENYA – AUGUST 12: A Masaai villager displays the traditional blade used to circumcise young girls August 12, 2007 in Kameli, Kenya. Maasai are a pastoral group mostly clustered in the Rift Valley. They practice circumcision on both boys and girls during puberty years as a rite of passage to adulthood.

Friedman said in his ruling that states without laws specifically banning female genital mutilation can still prosecute the practice under laws that criminalize sexual battery and abuse.

“No state offers refuge to those who harm children,” he wrote.

But those abuse laws often don’t take the specific issues surrounding female genital mutilation into account, said George Zarubin, AHA’s executive director.

“This is such an underground, secretive, barbaric practice,’’ Zarubin said. “I think the judge made a major mistake.”

Is this common?

Genital mutilation, also known as female circumcision or cutting, has been condemned by the United Nations. The World Health Organization says there is no health benefit to the procedure, and it can cause numerous health problems. The practice is common in parts of Asia, Africa and the Middle East and is generally performed as a way of controlling a girl’s sexuality.

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Amran Mahamood used to circumcise young girls in Hargeysa, Somalia, but stopped after a religious leader convinced her the rite was not required by Islamic law. VOA

It’s difficult to gauge how often genital cutting occurs in the U.S. because the practice is largely underground. A 2012 study from the U.S. Centers of Disease Control and Prevention estimated that more than 513,000 girls in the U.S. had been subjected to or were at risk of undergoing genital cutting.

What’s next?

Federal prosecutors have the option of appealing Friedman’s ruling, but it’s unclear if they will. The U.S. Attorney’s Office has not returned messages from The Associated Press this week seeking comment.

Molly Blythe, an attorney for Nagarwala, said Friedman’s decision was warranted under the law and it is “exactly what our justice system is designed to do.”

Female Genital Mutilation, FGM, judge
FILE – A counselor holds up cards used to educate women about female genital mutilation (FGM). VOA

Although the bulk of the case is now dismissed, Nagarwala and three others still face federal obstruction charges, and Nagarwala faces an additional count of conspiracy to travel with intent to engage in illicit sexual conduct.

Also Read: Teens Still At Risk But FGM Rates Goes Down in Africa: Research

Blythe said Nagarwala will continue to fight the remaining charges.

If Friedman’s decision stands, the AHA Foundation will work with Congress to try to pass a new federal law to ban the procedure nationwide, Zarubin said. The foundation will also continue work to ban the practice in all 50 states.

“I think a lot of us in the community that are working to try to ban female genital mutilation in this country are beside ourselves” with this decision, he said. (VOA)

Next Story

African Nations Urge Government to Enforce Fairer Family Laws

The pact, known as the Maputo Protocol, came into force in 2005 and guarantees extensive rights in areas from protection against violence to economic empowerment

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FILE - A woman protests against underage marriage in Lagos, Nigeria, July 20, 2013. VOA

Women and girls in Africa are still being pushed into forced or early marriages, while those in unhappy unions face discrimination when seeking divorce, campaigners said on Tuesday, urging governments to enforce fairer family laws.

The Solidarity for African Women’s Rights (SOAWR) — a coalition of 50 groups — said while most nations had committed to a pan-African pact on women’s rights, states had failed to enforce laws relating to marriage, divorce, child maintenance and inheritance.

The pact, known as the Maputo Protocol, came into force in 2005 and guarantees extensive rights in areas from protection against violence to economic empowerment.

Anisah Ari from the Nigeria-based Women Rights Advancement and Protection Alternative, a SOAWR member, said while African nations had taken steps in other areas such as tackling sexual violence, family laws were largely being ignored.

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File: Sudanese Women carrying 50kg bag of grains. Wikimedia Commons

“While the Maputo Protocol affirms women’s rights to exercise self-determination and bodily autonomy — free from discrimination, coercion and violence — many African girls and women continue to bear the brunt of discriminatory family laws,” Ari told a news conference.

“For instance, despite the fact that women have a right to inherit their husbands’ properties after death, this is not always assured — leading to protracted legal battles.”

The SOAWR members, which come from 25 African countries, said many nations had enacted progressive family laws in line with the Maputo Protocol, but the laws were not being enforced.

Women’s contribution and access to familial property was rarely recognized during marital disputes, and women often faced an uphill struggle when seeking child maintenance, they added.

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Women wear the Algerian flag during a protest in Algiers, April 26, 2019. VOA

The legally binding pact, lauded as the most progressive human rights instrument for women and girls in Africa, has been signed and ratified by 42 of the African Union’s 55 member states. Three countries — Botswana, Morocco and Egypt — have neither signed nor ratified it.

The SOAWR members — which come from countries such as Tunisia, Uganda, South Africa, Nigeria and Kenya — said addressing the protection and rights of women and girls in the family was the integral to the advancement of women.

ALSO READ: Africa: New Dresses, Youth Action – Ending Female Circumcision

“Family laws are key as the family unit is where the socialization of gender roles begins. It is where girls first learn their rights and roles in society,” said Violet Muthiga from Sauti Ya Wanawake, a Kenya-based women’s rights group.

“So if we can intervene at the family level to ensure they are protected and treated fairly, we can change perceptions and curb practices like child marriage and female genital mutilation — all of which happen with the family unit.” (VOA)