Judge's Decision Dismissing Female Genital Mutilation Charges Sparks Concern

A federal judge has dismissed key charges against a Michigan doctor accused by prosecutors of performing female genital mutilation (FGM) on young girls a decision that has prompted some concern among activists against the practice.

On Tuesday, U.S. District Judge Bernard Friedman dismissed conspiracy and mutilation charges against Dr. Jumana Nagarwala , a Detroit physician accused of performing the surgery on nine minor girls, and Dr. Fakhruddin Attar, who reportedly allowed the procedures to take place in his Livonia clinic.

The same charges were also dismissed against two women who reportedly acted as assistants during the procedure and the four mothers who prosecutors say brought their daughters to Nagarwala.

Other charges levied against some of the defendants remain standing, including one accusing Nagarwala of “conspiracy to travel with intent to engage in illicit sexual conduct.”

For Friedman, a Reagan-appointee, the dismissals on the charges of FGM came down to the issue of federalism. In his opinion, Friedman wrote that “as despicable as this practice may be,” FGM is a crime that should fall under the jurisdiction of states not the federal government. He found that Congress acted unconstitutionally when it passed a federal law criminalizing FGM in 1996.

But some activists are worried about the message that the ruling will send to members of Nagarwala’s religious community, Dawoodi Bohras,  for whom genital cutting is still a deeply engrained tradition.

Mariya Tehrer is the co-founder of Sahiyo , a group that seeks to end FGM in the Bohra community. Tehrer told HuffPost that many in the Sahiyo community particularly survivors of the practice feel the judge’s decision is “a punch in the gut.”

“I think people are sort of in shock and disbelief,” Tehrer said.

Watch a Love Matters India video about khatna in the Dawoodi Bohra community below.

The primary concern among activists is that Bohras who support genital cutting will misinterpret the ruling as proof that the practice is permissible. But Tehrer said Friedman’s ruling had to do with a jurisdictional and technical challenge, pointing out that in his opinion, the judge called the practice of genital cutting “essentially a criminal assault.” 

“The implication is that he views this as a criminal activity, but a local criminal activity under state jurisdiction,” Tehrer said. “It’s a very important distinction, but the reality is that many people have been using it as proof that we can continue this. That’s not at all what happened.”

The government is reviewing Friedman’s opinion, The Associated Press reports. Experts are expecting it to be appealed. 

The Nagarwala case is believed to be the first  brought under the federal law against FGM, 18 U.S. Code § 116. Only 27 states currently have laws criminalizing FGM. 

Nagarwala, a former emergency room physician, was arrested in April 2017 , after an FBI investigation uncovered that she allegedly removed clitoral skin from two 7-year-old girls. Prosecutors claimed the girls were brought from Minnesota to Livonia for the procedure.

The investigation eventually uncovered nine alleged victims of FGM. 

Michigan’s law against FGM passed after Nagarwala’s arrest and can’t be used to retroactively charge the doctor or others involved in the case, the Detroit Free Press reports.

Shannon Smith, Nagarwala’s lawyer, has maintained that the procedure the doctor performed does not qualify as FGM. 

“Dr. Nagarwala is just a wonderful human being. She was always known as a doctor with an excellent reputation,” Smith told the Detroit Free Press after the ruling. “The whole community was shocked when this happened. She’s always been known to be a stellar doctor, mother, person.”

The World Health Organization defines FGM as procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons.  It is primarily a cultural tradition that is practiced by some members of the Muslim, Christian, Jewish, and other faiths, according to Human Rights Watch.   

Most American Muslim denominations do not practice FGM. In fact, prominent Muslim organizations have openly condemned the practice .  But for years, Dawoodi Bohras, a Mumbai-based sect of Shia Islam, have practiced a type of genital cutting called khatna, or khafz. Bohras have long considered khatna to be a religious requirement for women, even though it is rarely discussed by mosque leaders. The social pressure to have daughters undergo the procedure has been quietly passed down from woman to woman over generations.

Supporters of khatna resist having their practice defined as FGM. But Tahrer said although the kind of genital cutting typically practiced by Bohras is not as extreme as other forms , it is still happening to young girls who are not able to give their consent. 

In addition, calling khatna simply a “nick” or a “wiping” of the clitoral hood also dismisses the stories of many survivors who say they are still experiencing physical or emotional harm from the procedure, Tahrer said.

The WHO and The United Nations Population Fund  consider genital cutting to be a human rights violation no matter the severity of the particular procedure.

Both Bohra men and women have spoken up against khatna in recent years . At the same time, since Nagarwala’s arrest, some Dawoodi Bohra women have banded together  to publicly defend the practice as harmless, and claim that governmental attempts to restrict it infringes on their religious freedom. Tahrer said she’s noticed a movement to dismiss survivors’ stories as attention-seeking attempts to “badmouth” the community. And the sect’s religious leaders in Mumbai still largely support khatna, Tahrer said, which makes it harder for local imams in India and the diaspora to publicly speak against it.

Still, Tahrer believes the discussions the Nagarwala case have prompted within the Bohra community are a positive development.

“For a very long time, religious authorities didn’t make any public comments on this, they referred to it as a private matter,” Tahrer said about khatna. “Whenever you’re trying to make some sort of social change you’re seeing it now with the Me Too movement as well you need to have formerly private discussions come out in public.”