Despicable, But Not Federal: Female Genital Mutilation

It’s almost impossible to consider the nature of the offense without retching. It is a horrible thing to do to any girl. Female genital mutilation is disgusting.

The federal statute at issue states: “Whoever knowingly circumcises, excises or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person” under the age of 18 shall be fined or imprisoned for up to five years, or both.

It’s been outlawed in more than 30 countries and 27 states, as well as under 18 U.S.C. § 116. District Court Judge Bernard Friedman takes no issue with the horror of the procedure, but that wasn’t the issue before him.

“As laudable as the prohibition of a particular type of abuse of girls may be … federalism concerns deprive Congress of the power to enact this statute,” Friedman wrote in his 28-page opinion, noting: “Congress overstepped its bounds by legislating to prohibit FGM … FGM is a ‘local criminal activity’ which, in keeping with long-standing tradition and our federal system of government, is for the states to regulate, not Congress.”

It’s hard, if not impossible, for people who want to eradicate this religious practice to accept the premise that there can be any question that doesn’t end with “but it’s horrible and must be stopped.” Yet, the question was whether the federal government has any jurisdiction over the practice. Judge Friedman held it does not, and that the federal law was unconstitutional.

There is an argument to be made that FGM is a religious practice, and as such should be allowed as a matter of the Free Exercise Clause of the First Amendment.

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.”

However, Judge Friedman’s decision wasn’t grounded in the First Amendment, but rather federalism.

“There is nothing commercial or economic about FGM,” Friedman writes. “As despicable as this practice may be, it is essentially a criminal assault. … FGM is not part of a larger market and it has no demonstrated effect on interstate commerce. The commerce clause does not permit Congress to regulate a crime of this nature.”

A detail that has no bearing on the question of the propriety, or repulsiveness, of the practice is whether it falls within the ambit of Congress to criminalize under either the Necessary and Proper Clause or the Commerce Clause.

The Necessary and Proper Clause does permit Congress to pass legislation to enforce treaty obligations, but there must be a rational relationship between the two. In the present case, there is no such relationship between the ICCPR and the FGM statute. Article 3 calls for “the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant,” while Article 24 calls for protection of children without discrimination based on “race, colour, sex, language, religion, national or social origin, property or birth.” Neither article is rationally related to the FGM statute, which prohibits the mutilation of girls’ genitalia.

* * *

Nor was enactment of the FGM statute a permissible exercise of congressional power under the Commerce Clause. That clause permits Congress to regulate activity that is commercial or economic in nature and that substantially affects interstate commerce either directly or as part of an interstate market that has such an effect. The government has not shown that either prong is met.

The government’s argument that jurisdiction over FGM should be covered by the Commerce Clause was unavailing.

The prosecution disagrees, arguing 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.

This argument reflects the peculiar gymnastics employed to manufacture federal jurisdiction over purely local crimes. The point isn’t whether the conduct involved should be criminal, or whether it’s somehow unworthy of federal attention, but rather that the Constitution left it to the states to determine what conduct to criminalize in the absence of a real impact on interstate commerce.

It’s possible, if one squints hard enough, to come up with some theoretical connection between pretty much any act and interstate commerce, whether because it involves using a communication device or whether some aspect of the conduct, here medical tools, might be manufactured in another state.

Painful as it may be, the burden of determining what conduct should be criminalized falls on the state. Where the state either fails to criminalize reprehensible conduct, or fails to punish it as harshly as advocates would prefer, that does not mean that the feds get to take up the slack and criminalize conduct that falls beyond federal authority.

Friedman’s ruling also drew the ire of Sen. Rick Jones, R-Grand Ledge.

“I’m angry that the federal judge dismissed this horrific case that affected upwards of a hundred girls who were brutally victimized and attacked against their will,” Jones said in a statement, noting 23 states don’t have FGM laws.

This is the problem when focus is on the “horrific case” rather than on the law that gives rise to federal jurisdiction over the conduct. The issue isn’t whether FGM is wrong and should be criminalized, but whether there is any federal basis to do so. Distinguishing between these two issues is hard but critical to keep the fed’s fingers off every aspect of human conduct that someone deems improper.

26 thoughts on “Despicable, But Not Federal: Female Genital Mutilation

  1. Dan

    Next version:

    “The Congress finds and declares that . . . FGM . . . interstate commerce.”

    Hey, it worked for “Gun Free School Zones”…

    1. SHG Post author

      With a little bit of effort, farting could be a federal offense given the theoretical absurdities imputed to interstate commerce.

      1. Patrick Maupin

        It did seem there were no limits. Which was simultaneously wrong and much more rational than the contours of the limits as they are now developing. Who will be the modern day Stewart Potter who knows a federal case when he sees one?

        1. SHG Post author

          One of the points I make when I do the “what happened to trials” panels and presentations is that before the 80s crack epidemic, the feds pretty much kept their hands off crime, as it was a state matter. Once the dam broke, there was no stopping the deluge and now people have no grasp of why the feds shouldn’t be prosecuting everything they believe to be horrible.

  2. Skink

    It gives me both pause and hope to read this type of order, even if it is just from a district court. I won’t belabor it, but interpretations of the clauses at issue have allowed the federal government to reach nooks and crannies other parts of the federal Constitution sought to protect. Any lawyer whose practice touches the Constitution knows this and the damage done, not just in criminal law, but in the vast sellout to administrative agencies.

    This judge didn’t go with the flow. Good for him.

    1. SHG Post author

      As you know, I’m not a huge fan of the administrative state (not that I think well of my pals in Congress either), but when they run out of legit windmills to tilt, and mission creep sets in, there either is a limit or their ain’t. Or as might be analogized here…

      1. Richard Kopf


        Your link stimulated a long forgotten matter.

        When I was a law clerk in 1972, I remember now, fondly, gawking at the pimp who showed up for trial at the federal bulding in a white fur coat after exiting his White Cadillac, with gold rims and a Continental kit on the back. That’s when I fell in love with the Mann Act, also known as the White Slave Traffic Act.

        Those were the good old days. Thanks for the memories.

        All the best.


        1. HandsomeMrToad

          The Mann Act was passed in order to enable white racists in 1910 in order to prosecute the great black boxer Jack Johnson, for daring to fcck white women.

          One of the VERY FEW things I like which Trump has done is he posthumously pardoned Jack Johnson.

          Here, watch this. You can see Johnson brushing Ketchel’s two front teeth out of the surface of his (Johnson’s) glove, after the knockout.

          1. SHG Post author

            As a general practice, it’s poor form for a first-time commenting random ‘nym to explain the Mann Act to a federal judge.

  3. Alan

    People–even people who are trained in the law–have great difficulty accepting that law is not the Forest of Feelings and courts are not Care Bears. Failure to accept this is the reason for way too many criticisms of judicial rulings… and is also the reason for way too many judicial rulings.

  4. Ross

    This started blowing up on Facebook today amongst the woke friends I have who don’t think things through very well. Lots of posts about how evil the male judge is, but no analysis of the actual opinion and reasoning. Lots of comments on how evil Reagan was to have appointed the judge as well. I would despair for the future, but I’m told despair is a sin. Does anyone actually think anymore?

    1. Nemo

      If you want to keep company with people who think, it is possible to do so.

      However, if you want to keep company with people who think, and despair not being able to do so, you would be better served to avoid invoking Facebook and/or Twitter before getting into your lament, since neither platform is conducive to rational thought.

      Case in point: On your venue of choice, David “Avocado” Wolfe, he of the “chocolate is an octave of sunlight” notoriety, is quite popular, and his marketing memes are widely shared.

      I could go on (and on, and on, and on*) with other examples, but I won’t. FB, et cetera, is top-heavy with such, so complaining about the lack of rational thought there is closely akin to complaining that when you are near a hog pen there’s a distinct lack of floral scents.

      With belated wishes that one and all have a good Thanksgiving,

      *I have been known to do so, at times.

  5. B. McLeod

    Well, people around the world are different, and some of them have different customs and practices. Sometimes, those customs and practices are tied to their cultural and/or religious views of what virtuous people do. This practice has been criminalized and dubbed “genital mutilation” by people who are strangers to the cultures and belief systems that subscribe. Should the banners of these surgeries equally be allowed to forbid and criminalize circumcision of males? These laws are patronizing, insensitive and discriminatory, no matter how many states or countries adopt them.

    1. alanlaird

      Except that ‘This practice’ spans the range from nicking to removal of the clitoris and sewing the vulva shut. While I may personally believe that men should be able to give informed consent before a penis pruning (dear old pediatrician dad’s term), it is qualitatively – and quantitatively! – different from removing the entire glans.

      1. B. McLeod

        Human civilizations have engaged in numerous body modification practices, including head-boarding, foot-binding, ear plates, lip plates, neck rings, trepanning, branding, scarring and various surgical alterations. Some of these were/are rites of passage in the cultures that observe(d) them, and to deny a child from such a culture access to the modification impairs the child’s acceptance in his or her native culture. Hence, “protecting the children” by attempting to suppress practices of their cultures over which we pompously sit in judgment comes with its own cost to their long term well-being.

  6. Casual Lurker

    Too bad Judge Friedman wasn’t around when Chuck Berry was convicted under the Mann Act for transporting a 14-year-old girl over a state line for “immoral purpose”. (Hey, “something must be done!”)

    (I’m ashamed for both you and GuitarDave for missing this one).

  7. Bo Orloff

    First, the obligatory ”IANAL, but…”

    With that out of the way, I’d like to suggest that while the learned judge’s ruling seems to me correct as regards the lack of Commerce Clause jurisdiction, it doesn’t seem to me that much (or any) inter-sectional stretching is required to find a rational connection between banning FGM and the International Covenant on Civil and Political Rights’ guarantee that “the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.” So, I’d say this was wrongly decided. Seems pretty clearly “Necessary and Proper” to enforcing the treaty to me [feel free to add a “but what do I know?” here if it makes me sound more reasonable 😉 ].

Comments are closed.