A federal judge on Tuesday threw out the nation’s first female genital mutilation case, delivering a major blow to the prosecution and FGM survivors who had hoped the Detroit case would help end a practice that is still performed on millions of girls worldwide.
In dismissing the 4-year-old case, U.S. District Judge Bernard Friedman concluded the prosecution was vindictive in seeking new charges against the accused, who had previously convinced the judge to declare the federal FGM ban as unconstitutional.
“The court concludes that the prosecution in this matter is vindictive. The government
obtained the fourth superseding indictment, which asserts new and additional charges, in retaliation for defendants’ past success in having other charges dismissed,” Friedman wrote in his ruling. ” Such vindictive or retaliatory prosecution “is a due process violation ‘of the most basic sort.”
The lead defendant is Dr. Jumana Nagarwala, whom prosecutors allege cut the genitals of nine minor girls during after-hours at a Livonia clinic that belonged to her doctor friend, who was also charged in the case. Nagarwala has long denied engaging in genital mutilation, saying the procedure she performed on minor girls was a benign, religious practice that involved only scraping or “shaving” of the genitalia, not cutting.
Nagarwala’s attorney, Shannon Smith, applauded Friedman’s ruling, but called the ending of this case “bittersweet.”
“It’s a lost bittersweet. Yes, they’ve won, but they’ve never been vindicated in court. Those things never happened. The things the government alleged never happened,” Smith said. “Our clients have lost so much of their lives. The impact on their lives has been unspeakable. It’s hard. They’ve gone through half a decade of being charged and living under these charges.”
Smith also expressed frustration with much of the case being sealed.
“I’m not surprised with how it ended. But what’s really sad is that so much of the case is under seal and is not available to the public,” Smith said.” I can understand why people reading about this are going to be so upset and confused and not understand … but so much of the case is under seal.”
The U.S. Attorneys office declined comment, noting it has not yet reviewed the judge’s ruling, which essentially ends the case unless the government appeals.
The case involves nine girls ages 7-12 from Michigan, Illinois and Minnesota, including some who cried, screamed and bled during the procedure and one who was given Valium ground in liquid Tylenol to keep her calm, court records show.
Among the accused were three mothers, including two Minnesota women whom prosecutors said tricked their 7 -year-old daughters into thinking they were coming to metro Detroit for a girls’ weekend, but instead had their genitals cut at a Livonia clinic as part of a religious procedure.
Since the case emerged in 2017, the bulk of the charges have been dropped and the federal FGM law was declared unconstitutional in 2018. In making that decision, Friedman concluded that “as despicable as this practice may be,” Congress did not have the authority to pass the law that criminalizes female genital mutilation, and that FGM is for the states to regulate.
FGM is banned worldwide and has been outlawed in more than 30 countries, though the U.S. statute had never been tested before this case. A new and tougher FGM law has since been passed, though the defendants cannot be tried under it retroactively.
The case was set to go to trial in April 2019 on a single obstruction charge, but COVID-19 hit and the prosecution came to a halt.
This year, prosecutors sought new charges.
In March, the government issued its fourth superseding — or new —indictment that includes five new charges, including conspiracy to make false statements and witness tampering. Prosecutors allege that Nagarwala and and her three cohorts lied to the FBI about FGM that was going on in their community, and instructed others in their religious community to do the same if the FBI came asking questions.
The defense lambasted the new charges, arguing they were about about vengeance stemming from the many blows the prosecution took in years past, specifically 2018, when Freidman declared the federal FGM law unconstitutional and dismissed nearly all charges.
“The government is acting with extreme prosecutorial vindictiveness in issuing yet another superseding indictment nearly half a decade after charges were first issued,” the defense previously argued in court filings.
Currently, 40 states have laws that criminalize female genital mutilation, including Michigan, which passed its statute in the wake of the federal case.
Michigan’s FGM law applies to both doctors who conduct the procedure, and parents who transport a child to have it done. The defendants in this case can’t be retroactively charged under the new law.
The defendants are all members of a small Indian Muslim sect known as the Dawoodi Bohra, which has a mosque in Farmington Hills. The sect practices female circumcision and believes it is a religious rite of passage that involves only a minor “nick.”
Yasmeen Hassan, executive global director for Equality Now, an international women’s rights organization, has previously decried the developments in the Michigan case, saying they send a disturbing message to women and girls.
“It says you are not important,” Hassan has previoulsy said.
“In this day and age, for FGM to still occur — and a federal government can’t regulate this with a human rights violation — is very bizarre,” Hassan said after the ban was declared unconstitutional. “This is not what I expected. It’s so not what I expected.”
Prosecutors have alleged that Nagarwala subjected to as many as 100 minor girls to FGM over a period of 10 years, though the case cites only nine alleged victims:ntwo 7-year-old girls from Minnesota; four Michigan girls ages 8-12, and three Illinois girls. . They said Nagarwala did this with the help of Dr. Fakhuruddin Attar, who is accused of letting Nagarwala use his Livonia clinic after hours to carry out the procedures; and his wife, Farida Attar, who is accused of assisting Nagarwala in the examination room during the procedures and holding the girls’ hands.
Nagarwala has long maintained that she committed no crime and that she was charged under a law that slid through Congress without proper vetting.
The prosecution disagreed, arguing that genital mutilation is an illegal, secretive and dangerous health care service that involves interstate commerce on a number of fronts: text messages are used to arrange the procedure; parents drive their children across state lines to get the procedure; and the doctor uses medical tools in state-licensed clinics to perform the surgeries.
In charging the defendants, prosecutors noted that FGM is condemned worldwide — it’s illegal in more than 30 countries – and has no medical benefit, but rather is about controlling girls.
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