Via Flickr Creative Commons; Photo UNICEF / Olivier Asselin;
Back in April, federal authorities broke up what seemed to be a ring of medical professionals, allegedly, who specialized in inflicting Female Gential Mutilation (FGM) on young girls from a peculiar Muslim sect. See:
The case has finally made its way to court and the federal judge rendered something of a shocking and counterfactual ruling…the feds have no role in combating FGM.
A federal judge Tuesday dismissed female genital mutilation charges against several doctors in the first criminal case of its kind nationwide, arguing the law is unconstitutional.
The ruling by U.S. District Judge Bernard Friedman comes two weeks after defense lawyers mounted the first challenge to a 22-year-old genital mutilation 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 other 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.
Friedman delivered a significant, but not fatal, blow to a novel criminal prosecution being closely followed by members of the sect and international human-rights groups opposed to female genital mutilation.
Friedman removed four defendants from the case — including three mothers accused of subjecting their daughters to female genital mutilation — while concluding Congress had no authority to enact a law criminalizing female genital mutilation.
“There is nothing commercial or economic about FGM,” Friedman wrote in a 28-page opinion. (Female genital mutilation) 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.”
Insert IANAL caveat.
It is always cute and adorable when activists judges suddenly discover federalism and the Constitution. And, were it real and not merely a pretext, there would be rejoicing in Heaven for sinners who returned to the fold. The reasoning this judge cites was thrown out decades ago when the Supreme Court decided Wickard vs. Filburn and it was definitely dead by the time the power of federal law enforcement was used to suppress the Klan during the Civil Rights era. If this stands, then the federal Edmunds Act that outlaws polygamy is also invalid. Conspiracy statutes that rely solely upon the use of the mail or of interstate telephone carriers to perpetrate them would also be up for grabs.
While I’m sympathetic to the argument that this should be a state prosecution, my guess is that this is a federal prosecution for the exact same reason that many otherwise state crimes were prosecuted by the feds during the Civil Rights era, that is, the local courts are so deeply corrupted that no prosecutions of even obvious crimes of a certain type will take place (see my story link about the estimate of FGM vs prosecutions).
If the feds appeal, and one has to think they will not stand idly by and have a law declared unconstitutional without any protest, odds are that this ruling will be overturned. What impact does this have on the cases that have been dismissed? Again, IANAL but I imagine the perpetrators of this horror show escape.
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