A federal judge has declared a US law which bans female genital mutilation unconstitutional and dismissed charges against two doctors for carrying out the procedure on underage girls in the first US criminal case of its kind.
The decision has sparked shock and anger from campaigners who argue it will have an impact on tens of thousands of girls who are at risk of the practice across the US.
District Judge Bernard Friedman said on Tuesday in Detroit that American Congress lacks the authority to outlaw the procedure and only individual states can undertake the decision.
"As despicable as this practice may be, it is essentially a criminal assault," Mr Friedman wrote.
“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.”
The trial was the first federal case to involve FGM – a term which refers to any procedure that intentionally alters female genital organs for non-medical reasons and a procedure which is internationally recognised as a human rights violation.
Shelby Quast, director of the US branch of Equality Now, a non-government organisation which aims to promote the rights of women and girls, said: “The dismissal of charges is deeply concerning and reaches far beyond the defendants in this case, impacting tens of thousands of girls at risk from FGM across the USA.
“Judge Friedman's order completely fails to appreciate the discriminatory nature of FGM, which is practised mainly to control the sexuality of women and girls.
“By stating that FGM is not a ‘commercial practice’ the order ignores the reality that in most communities, traditional cutters and medical practitioners are paid for their services, and performing FGM is lucrative work.”
The Centers for Disease Control and Prevention has estimated 513,000 women and girls have experienced or are at risk of FGM in America. Many of these women and girls live in one of the 23 states which have not passed laws against FGM.
But even those who live in states with anti-FGM laws are not necessarily safe because they can be transported to other states for the procedure to be carried out. Only 11 of the 27 states with anti-FGM laws have specific provisions which bar the transportation of a child out of the state to perform FGM which would be banned if conducted inside the state.
Mariya Taher, of a survivor-led organisation that campaigns against FGM called Sahiyo, said: “This ruling is a setback in terms of legal protections in the US but the decision will be appealed and there is still much to do around community education and outreach and we at Sahiyo will continue to work with community members and survivors who reach out to for support.”
A spokesperson for US Attorney Matthew Schneider in Detroit said the prosecutor’s office would review the decision before choosing whether to appeal.
The judge dismissed the main charges against Jumana Nagarwala – a doctor who performed the procedure on nine girls from Michigan, Illinois and Minnesota at another doctor's clinic in the Detroit suburb of Livonia.
FGM is a religious custom performed on girls from her Muslim sect – the Dawoodi Bohra.
Four of the eight defendants were dismissed from the case, including three of the four mothers accused of subjecting their daughters to FGM.
The government said one girl, age seven, had told investigators she and another girl were taken to Detroit for what they deemed to be a “special girls’ trip,” and was told not to discuss the FGM procedure after it was finished.
Molly Blythe, a lawyer for Dr Nagarwala, said: “We are very excited about today’s ruling, although the victory is bittersweet given we fully anticipated our client to be vindicated at trial on those charges.”
Dr Nagarwala pleaded not guilty last month to the two remaining charges she faces. Those charges are obstructing an official proceeding, and conspiracy to travel with intent to engage in illicit sexual conduct.
FGM is performed on girls and women from various backgrounds and communities – across racial, ethnic, economic, education, geographic and religious lines.
FGM, which typically involves the partial or total removal of the clitoris, is a common practice in many northern and central African countries.
According to the World Health Organisation, the proportion of women who have undergone the procedure in some countries is as high as 96 per cent, with the highest rates including Somalia, Guinea, Egypt and Sudan.
Over 200 million women and girls are estimated to be living with the lifelong impact of FGM and 8,000 girls are still being cut each day.
FGM has been illegal in Britain since 1985 but the law was strengthened in 2003 to prevent girls travelling to undergo FGM abroad.
However, it is estimated that in 2015 there were more than 100,000 women and girls living in the UK who had endured female genital cutting, which is linked with severe long-term complications.
At least 16,265 women and girls living in the UK have told doctors they have suffered FGM but officials believe the figure is the tip of the iceberg as the practice continues to be under-reported.
NHS figures show that almost 4,500 women and girls came forward for the first time in the year to March, although the procedure may have been carried out years before and occurs overseas in most instance.
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