Genital mutilation case revs up amid grand jury activity

Detroit — As many as six members of a Muslim sect from India were questioned by a federal grand jury Wednesday as prosecutors pursue more criminal charges involving new girls in the nation's first female genital mutilation case.

The grand jury appearances by members of the Dawoodi Bohra community come as defense lawyers challenge the constitutionality of an untested federal law criminalizing female genital mutilation. Legal experts suspect the government is trying to bolster its case to withstand the legal challenge by adding more girls from multiple states.

The ongoing grand jury investigation and the prospect of additional charges could delay an unprecedented criminal trial scheduled to start in January in downtown Detroit. The criminal case has been closely followed in India, where the Dawoodi Bohra are based, and by international human rights groups opposed to female genital mutilation, a federal crime since 1996.

"It does sound like they’re trying to bolster their case," said Peter Henning, a Wayne State University law professor and former federal prosecutor. “The government is not permitted to use a grand jury to aid in discovering evidence of crimes that have already been charged, but they can use a grand jury for new charges.”

Targets of a criminal investigation rarely appear in front of a grand jury, making it more likely the Dawoodi Bohra members are witnesses, legal experts said.

It is unknown whether the people who testified Wednesday were subpoenaed by the government and forced to answer questions. There is a general fear within the Dawoodi Bohra community that members could be excommunicated if they talk about the secretive practice of female genital mutilation, said Isufali Kundawala, a Bohra and retired anesthesiologist near Dallas who has spoken out against female genital mutilation.

"Those that come in and talk — oh my god — if it becomes known, they will be really taken to task, I’m telling you," he said. "Excommunication is the main danger to the community."

So far, eight people have been charged, most notably Dr. Jumana Nagarwala, 45, of Northville, who is accused of heading a conspiracy that lasted 12 years, involved seven people and led to mutilating the genitalia of girls as part of a religious procedure practiced by some members of the Dawoodi Bohra.

Nagarwala is free on $4.5 million unsecured bond, the largest bond of its kind in Detroit federal court history.

The grand jury appearances Wednesday were not a surprise, said Nagarwala's lawyer, Shannon Smith.

"It's no secret. We've known for the last few weeks that it was in the works, and we'll deal with the evidence as it comes," she told The News.

The case, so far, involves six females: two 7-year-old girls from Minnesota and four girls from Michigan ages 8-12. Investigators have questioned at least eight other children in multiple states, according to federal court records, and prosecutors have estimated that Nagarwala performed female genital mutilation on at least 100 girls — a claim defense lawyers dispute.

Prosecutors say the girls were cut but defense lawyers say the procedure performed on the girls was benign and not female genital mutilation. They accuse the government of overreaching.

Nagarwala is accused of mutilating the Minnesota girls on Feb. 3, 2017, at the Burhani Medical Clinic in Livonia, owned by Fakhruddin Attar. Attar and wife Dr. Farida Attar are also awaiting trial.

Farida Attar is accused of helping arrange the procedure and being in the examination room while it was performed.

The couple were arrested last year and accused of accused of committing female genital mutilation, trying to cover up the crime and conspiring with Nagarwala to cut girls.

The grand jury activity Wednesday comes eight months after U.S. District Judge Bernard Friedman dismissed the most serious count against Nagarwala and Fakhruddin Attar, a sex charge punishable by up to life in federal prison. 

Defense lawyers are now arguing that a law banning female genital mutilation is unconstitutional.

One defense argument is that Congress lacked authority to enact the female genital mutilation law under the Commerce Clause because the procedure has nothing to do with interstate commerce.

"If they brought the child up here from out of state, that could at least bolster the claim that this fulfills Congress' authority over interstate commerce," Henning said.

Los Angeles defense lawyer Haytham Faraj, who is involved in the case, previously said FBI and U.S. Immigration and Customs Enforcement agents have approached doctors and members of the Dawoodi Bohra community in Los Angeles, Illinois and other cities as part of the investigation.

Two couples were spotted entering the grand jury suite Wednesday inside federal court where a group of 23 citizens meet in secret to decide the fate of those suspected of violating federal laws. A third couple also appeared in federal court and were met by an FBI special agent involved in the case.

The three women in federal court Wednesday wore distinctive, colorful long-flowing dresses, one purple, one green with swatches of red and white and one lime green. The dresses are a traditional Dawoodi Bohra garment called a rida.

One husband wore the traditional topi, a white cap with gold trim.

One woman — dressed in the green, red and white rida — entered the grand jury suite at 8:30 a.m. Wednesday carrying an Illinois driver's license and left after four hours. She was flanked by lawyer Ryan Machasic.

The woman was followed minutes later into the grand jury suite by the Justice Department team prosecuting the case. That team included Assistant U.S. Attorneys Sara Woodward and Malisa Dubal and the lead FBI agent on the case.

Machasic, a veteran criminal defense lawyer, declined to comment about the grand jury appearance.

The U.S. Attorney's Office also declined comment Wednesday.

After the woman in the green, red and white dress left federal court, a woman wearing a long purple rida entered federal court with attorney Brian Watkins.

Watkins could not be reached for comment Wednesday.

Minutes after Watkins entered court, a third couple was spotted entering the grand jury suite. Outside court, the couple declined comment when approached by a reporter for The News.

Henning expects the people testifying Wednesday were offered immunity or given assurances they will not be prosecuted.

The witnesses also could assert their Fifth Amendment protection against self-incrimination.

"That’s the one protection they truly have," Henning said.

Last year, Nagarwala's lawyer said the investigation had spread to at least three more states as federal agents had identified new targets. The targets live in Los Angeles, Chicago and New York, according to a federal court filing and interviews with sources familiar with the case.

Locally, most members of the sect belong to the Anjuman-e-Najmi mosque in Farmington Hills.

Female genital mutilation is an internationally recognized violation of human rights.

Some members of the Dawoodi Bohra community who have spoken against the procedure said the surgery is performed to suppress female sexuality, reduce sexual pleasure and curb promiscuity, according to court records.

The procedure is most common in parts of Africa, the Middle East and Asia, along with migrants from those regions, says the World Health Organization.

There are four major types of female genital mutilation, including a partial or total removal of the clitoris.

Prosecutors have alleged that two girls’ clitorises were completely removed but the evidence is lacking for at least one girl, Smith said.

Worldwide, an estimated 140 million women and girls have undergone the procedure, according to the World Health Organization. More than 3 million girls in Africa undergo the procedure each year.

The procedure has been illegal in the U.S. since 1996, and there are no medical benefits for girls and women, according to the World Health Organization.

rsnell@detroitnews.com 

(313) 222-2486

Twitter: @robertsnellnews

Staff writers Christine Ferretti and Charles E. Ramirez contributed.