Defense tries to toss genital mutilation charges

Detroit — Defense lawyers tried to convince a federal judge Tuesday to dismiss female genital mutilation charges in the first criminal case of its kind nationwide, arguing the law is unconstitutional.

The bid by defense lawyers is the first challenge to a 22-year-old federal law that went unused until April 2017. That's when Dr. Jumana Nagarwala of Northville was arrested and accused of heading a conspiracy that lasted 12 years, involved seven people and led to mutilating the genitalia of nine girls as part of a religious procedure practiced by some members of the Dawoodi Bohra, a Muslim sect from India that has a small community in Metro Detroit.

U.S. District Judge Bernard Friedman, following an hour-long hearing in downtown Detroit, said he would file a written opinion soon.

Congress lacked authority to enact a law criminalizing female genital mutilation in 1996, Nagarwala's lawyer Molly Sylvia Blythe told the judge. Congress lacked authority under the Commerce Clause of the Constitution because the procedure has nothing to do with interstate commerce, she said.

"Mutilation is not an economic activity," she said. "It has nothing to do with commerce or an economic enterprise."

Prosecutors countered, arguing the crime does involve interstate commerce. Christian Levesque, a trial attorney with the Justice Department's Human Rights and Special Prosecutions section, noted that the procedure involves parents using cellphones to arrange the procedure and children transported across state lines who undergo surgeries utilizing medical tools in state-licensed clinics.

"Female genital mutilation is part of a health-care service, an illicit health-care service, an illegal and detrimental health-care service," Levesque told the judge. "All forms of female genital mutilation are an economic service at its core."

The defense motion is the latest attempt to dismiss charges filed by federal prosecutors. In January, Friedman dismissed the most serious count against Nagarwala and co-defendant Dr. Fakhruddin Attar, a sex charge punishable by up to life in federal prison.

Prosecutors say prepubescent girls were cut at Attar's clinic in Livonia, which was managed by his wife, Dr. Farida Attar, who also is charged in the case.

A trial is set for April 2019.

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, Nagarwala's lawyer Shannon 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.

The judge heard arguments two months after prosecutors filed new charges in the case.

The new charges brought to a total of nine girls from three states who prosecutors say underwent the illegal procedure at a Attar's medical clinic in Livonia since 2015.

The case is being closely followed in India, where the Dawoodi Bohra are based, and by international human rights groups opposed to female genital mutilation.

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

The indictment filed in September refers to three girls prosecutors say underwent a procedure performed by Nagarwala at the Burhani Medical Clinic on Farmington Road in Livonia in 2015. The three girls are from Illinois and were born in 2007 and 2008.

The clinic was shuttered last year.

Farida Attar was accused in the indictment of giving one girl Valium that was ground up in liquid Tylenol.

Prosecutors say the girls — four from Michigan, two from Minnesota and three from Illinois — underwent female genital mutilation, but defense lawyers say the procedure performed on the girls was benign and not female genital mutilation. They accuse the government of overreaching.

The eight-count indictment added one new charge against Nagarwala: conspiracy to travel with intent to engage in illicit sexual conduct. That charge is a 30-year felony.

The new charge accused Nagarwala of conspiring with others to bring two Minnesota girls to Metro Detroit to engage in illicit sexual conduct in early 2017.

Nagarwala is accused of mutilating the Minnesota girls on Feb. 3, 2017, at the clinic.

rsnell@detroitnews.com 

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Twitter: @robertsnellnews