Michigan case presents first test of federal law against female genital mutilation

Dr. Jumana Nagarwala has been released on a $4.5 million bond. (Photo Courtesy: CNN Newsource)

As the first doctor charged with performing female genital mutilation under federal law was released on bond Tuesday, questions remained about the extent to which religious freedom can be used to defend a practice many human rights groups say is a barbaric and misogynistic form of sexual abuse.

After her arrest in April, Dr. Jumana Nagarwala was indicted on four counts of female genital mutilation, one count of conspiracy to commit female genital mutilation, one count of conspiracy to transport a minor with intent to engage in criminal sexual activity, and one count of conspiracy to obstruct an official proceeding.

Nagarwala, a Michigan emergency room physician, has been released into the custody of her father after posting $4.5 million bond. She has pleaded not guilty to all counts. The parents of some alleged victims have also been charged.

The case has shone a spotlight on female genital mutilation (FGM), a practice common in some African countries and other communities around the world. According to the World Health Organization (WHO), more than 200 million women and girls alive today have been cut.

The defendants are all part of an Indian-Muslim sect called the Dawoodi Bohra that considers a form of genital cutting called khatna a religious requirement. Many other Muslim sects oppose the practice and insist it has no basis in their faith.

The WHO and the United Nations have been fighting against the practice for 20 years. The organization has identified four categories of procedures that it classifies as FGM:

  • Type 1: partial or total removal of the clitoris or the fold of skin surrounding it.
  • Type 2: partial or total removal of the clitoris and the labia minora.
  • Type 3: narrowing of the vaginal opening by cutting and repositioning the labia.
  • Type 4: any other procedure on the female genitalia for non-medical purposes including pricking, piercing, incising, scraping and cauterizing the genital area.

Female genital mutilation has been illegal in the U.S. under federal law since 1996, but prosecutors believe Nagarwala and her co-defendants are the first people ever charged under the statute. Other cases involving genital mutilation are rare. In 2006, Ethiopian immigrant Khalid Adem was convicted of aggravated battery in Georgia for removing the clitoris of his own 2-year-old daughter with scissors.

The lack of prosecutions should not be taken as evidence that the procedure is not being performed in the U.S. The Centers for Disease Control and Prevention estimated in a 2016 study that 513,000 women and girls in the U.S. are either victims of or at risk of becoming victims of the practice.

Researchers stated this figure was more than three times higher than an earlier estimate based on 1990 data. They concluded this was due to an increase in immigration from countries where FGM is commonly practiced.

“I don’t know if this is a sex abuse problem or a civil rights problem,” said Thomas Veivia, a former FBI agent who investigated crimes against child victims, but it clearly is a growing problem in the U.S.

Although she is currently accused of mutilating four girls, prosecutors believe Nagarwala has done it to many other children. The doctor who runs the clinic where the after-hours procedures occurred told investigators Nagarwala sees children there five or six times a year.

After Nagarwala’s arrest, Michigan passed new legislation that made it the 25th state to explicitly criminalize female genital mutilation, setting a 15-year penalty, three times the maximum federal sentence. Other states are considering similar laws to set stiff penalties for FGM.

In early court filings, the defense did not dispute that these children were brought from Minnesota to Livonia in order for Nagarwala to perform a procedure on their genitals in accordance with Dawoodi Bohra culture. They did, however, deny that the procedure she performed qualifies as genital mutilation.

"When it comes to female genital mutilation, there's a very huge range in terms of genital cutting. Not all genital cutting is mutilation,” defense attorney Shannon Smith told WEYI. “There's far more to this case and we plan to try it in the courtroom."

At an April 17 detention hearing, Smith complained that the media has “made the facts of this case appear to be far, far, far, far more egregious than what was actually happening.” She said Nagarwala agrees that genital mutilation is “inappropriate” but denied she ever engaged in it.

“There are four types of FGM that exist according to the World Health Organization and all of the acts that my client was performing on children did not meet the criteria of those four definitions of potential FGM,” she argued.

“Your Honor, what was being performed was a religious procedure where my client would look at -- on the clitoris of the girls, there's a mucus membrane,” Smith explained when asked by the judge what exactly Nagarwala did do. “She would wipe a little portion of the mucus membrane off, put it on a piece of gauze, which the family would then take the gauze with the mucus membrane and they would bury it.”

She did not contest the findings of a physician that the girls had abnormalities in their vaginal areas, but she insisted they were not necessarily caused by her client’s actions.

Speaking to WEYI this week, Smith defended Nagarwala’s behavior as “protected religious freedom under the First and Fourteenth Amendments.”

In a Washington Post op-ed earlier this year, UCLA law professor Eugene Volokh outlined a possible defense under the Religious Freedom Restoration Act. That case would rest on proving that Nagarwala’s actions did not cause substantial harm to the children if the defense’s characterization of the procedure is accurate.

He pointed to a 1972 case where the Supreme Court upheld the rights of Amish parents to pull their children out of school at 14 despite evidence of long-term harm caused by lack of education.

However, Frank Gaffney, founder and president of the Center for Security Policy, told Sinclair there are plenty of cases where religious rights have been curtailed due to the damage they cause to others or society.

“There are other religious practices like peyote or polygamy or, you know, the sacrifice of vestal virgins that we do not tolerate in America,” he said, “so there’s a well-established precedent that you can practice your religion as long as you’re not harming other individuals or otherwise violating societal norms.”

Attorneys for Nagarwala and the other defendants have also argued that the charge of conspiracy to transport a minor to engage in criminal sexual activity should be dropped because the procedure was not a sexual activity. In court documents, attorneys maintain that there cannot be sexual activity if there was no libidinal gratification sought.

Prosecutors reject that interpretation, saying the federal definition of a criminal sexual act includes the intentionally touching a minor’s genitalia “with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”

They allege that genital mutilation results in long-term abuse, humiliation, and degradation for the victims. They also warn that limiting the offense to acts intended for sexual gratification could have far-reaching consequences.

“Many cases in the state of Michigan and elsewhere involve abusive sexual contact by pediatricians, sports doctors, trainers and the like. If the government is required to prove gratification, prosecution of these cases would become significantly more difficult,” Woodward stated in an October filing.

Veivia also took issue with that reasoning, even if from a cultural standpoint, the Dawoodi Bohra do not consider this a sexual act.

“It’s hard to quantify,” he said. “What are they using for their basis to say there was no sexual gratification from it?”

Veivia acknowledged the difficulty prosecutors face in proving that the underlying conduct Nagarwala and the parents are accused of attempting to engage in violates the law.

“The statute that they chose to charge the individuals, basically it’s causing someone to engage in interstate commerce to engage in a criminal sexual act,” he said.

He noted that the law being used was crafted decades ago to fight interstate prostitution. Investigators encountered similar obstacles applying existing laws to internet child sex exploitation in the late 1990s.

“What we need to do is somehow adapt [statutes] to the changing times,” he said.

Defenders of FGM have likened it to male circumcision, particularly in its less extreme forms. Experts and advocates critical of the practice have rejected that that comparison.

“We should clarify once and for all that excision of the clitoris is the equivalent of removing the head of the penis,” Kim Thuy Seelinger of the Sexual Violence Program at the Human Rights Center and gynecologist Dr. Herman Reyes stated in a Huffington Post op-ed.

“It's a bizarre argument to make, rather like comparing ear piercing with sawing off a person's entire ear with a rusty hacksaw,” said Simon Hochhauser, co-chairman of an organization that defends religious male circumcision, in a 2014 Telegraph column.

“It’s more like female castration than circumcision,” Gaffney said.

Some anthropologists and others have argued FGM is a more complex cultural issue than its critics admit, saying it is often the women in a society who pressure children to conform and the medical and sexual ramifications are overstated. The United Nations is still pushing to eliminate the centuries-old practice worldwide by 2030, though.

Based on descriptions of the procedure he has read, Veivia said female genital mutilation appears to be at the very least child abuse, even if it is done in a sterile clinical setting by a professional.

“I don’t think because it’s performed by a physician it adds to the legitimacy of the act,” he said.

Federal prosecutors have taken an aggressive approach in this case, but according to Veivia, whether it sets a precedent for future cases depends heavily on how other states word their criminal statutes. Whatever their cultural or religious justifications, parents and doctors still must adhere to the law.

“We have to find that balance between religious freedom and the protection of children,” he said.

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