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"""
Detroit-based federal judge dismissed criminal charges lodged against eight defendants for their alleged role in the female genital mutilation (FGM) of nine young girls. The presiding judge, Ronald Reagan-appointee Bernard Friedman, concluded that Congress lacked the power to pass 18 U.S.C. § 116, the federal statute that criminalizes FGM at the national level.

The multi-count indictment had charged Dr. Jumana Nagarwala with performing the procedure at a Livonia, Michigan clinic owned by co-defendant Dr. Fakhruddin. Farida Attar and Tahera Shafiq, who assisted Nagarwala in performing the procedure, were also named co-defendants and charged with conspiring to commit FGM and aiding and abetting in the commission of the crime. The girls’ mothers were also charged, including two Minnesota women who allegedly “tricked their 7 -year-old daughters into thinking they were coming to metro Detroit for a girls’ weekend, but instead had their genitals cut.”
[...]
The federal government is a government of limited and enumerated powers and thus may only criminalize (or regulate) conduct if granted authority to do so in the U.S. Constitution. Abuse or assault are part of the criminal law, and the heart of state power. The federal government could criminalize transporting girls across state lines to obtain FGM, but the federal statute under which the defendants were prosecuted does not do so now, so this is currently a matter for the states. While Michigan was remiss in not having a law against this, it cannot be applied retroactively
[...]
The federal prosecutors then pointed to two provisions of the International Covenant on Civil and Political Rights [...] Friedman rejected the government’s reliance on the 1992 treaty, concluding that criminalizing FGM was unrelated to Article 3’s “equal rights” protection and Article 24’s non-discrimination mandate. He further reasoned that even if the treaty could be read so broadly, “federalism concerns deprive Congress of the power to enact this statute.”
[...]
Federal prosecutors also argued Congress has authority under the Commerce Clause to criminalize FGM. [...] Judge Friedman reasoned in a thorough 28-page opinion, Congress lacked the authority to make FGM a federal crime.
[...]
Twenty-seven states currently prohibit FGM, including now Michigan. After news broke of Nagarwala’s arrest, Michigan passed a law prohibiting FGM and subjecting both doctors and parents to up to 15 years imprisonment for it.

While the newly enacted Michigan law cannot be applied retroactively to the defendants in this case, the state’s general child abuse provisions do apply. [...] Additionally, the federal conspiracy to obstruct an official proceeding charges lodged against Nagarwala and a co-defendant who assisted in the FGMs remain pending. If convicted, both could be sentenced to up to 20 years in prison.
"""
http://thefederalist.com/2018/11/21/judge-right-states-job-not-feds-outlaw-female-genital-mutilation/
http://thefederalist.com/2018/11/21/judge-right-states-job-not-feds-outlaw-female-genital-mutilation/

Labels: Oleg Zabluda

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