Religious defense planned in landmark Detroit genital mutilation case
On paper, the law seems clear: Cutting any part of a young girl's genitalia is illegal — and no custom or ritual can be used to justify it.
The law has been on the books for 21 years, unchallenged.
But in a federal courtroom in Detroit, a landmark case involving the centuries-old taboo ritual is about to put that law to the test for the first time.
And perhaps more historic, a question will be raised in the American legal system that has never been raised before: Does the U.S. Constitution allow for genital cutting, even if it's just a minor nick or scraping, in the name of religion?
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Defense lawyers plan to argue that religious freedom is at the core of the case in which two physicians and one of their wives are charged with subjecting young girls to genital cutting. All three are members of the Dawoodi Bohra, a small Indian-Muslim sect that has a mosque in Farmington Hills.
The defense maintains that the doctors weren't engaged in any actual cutting — just a scraping of the genitalia — and that the three defendants are being persecuted for practicing their religion by a culture and society that doesn't understand their beliefs and is misinterpreting what they did.
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First Amendment scholars across the country — liberal and conservative alike — are closely following the case, noting that the fate of the accused will largely rest with scientific evidence.
The key question for jurors to answer will be: Were children harmed physically? If they were, experts say, the religious freedom defense doesn't stand a chance.
But if the defense can show that it was just a nick and caused no harm, some experts believe, the defendants could be acquitted on religious grounds.
'This is new territory'
The Detroit case involves the genital cuttings of two 7-year-old Minnesota girls whose mothers brought them to a Livonia clinic for the procedure in February.
Defense lawyers have argued that the defendants are good, hardworking people with deeply held religious convictions who were involved in only mild procedures that are part of their faith.
But the government says the harm was much more severe than the defense is claiming and that there are multiple other victims. According to court documents, the two Minnesota girls had scarring and abnormalities on their clitorises and labia minora.
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"It is hard for me to imagine any court accepting the religious freedom defense given the harm that's being dealt in this case," said First Amendment expert Erwin Chemerinsky, one of the nation's leading constitutional law scholars who called the religious claim in the Detroit case a "losing argument."
"You don't have the right to impose harm on others in practicing your religion," said Chemerinsky, dean of the law school at the University of California at Irvine who in January was named the country's most influential person in legal education by National Jurist magazine.
Chemerinsky, who has written a leading textbook on constitutional law, said there is "no absolute right" to religion in the U.S., noting many parents over the years have fought for the right to refuse their children medical care because of religious beliefs. But those parents, many of them Jehovah's Witnesses or Christian Scientists, have consistently lost those cases, he said.
Chemerinsky believes the Detroit defendants will lose, too.
"I can't imagine any court that would say that the parents' right to practice their religion gives them the right to inflict this harm on their daughters," Chemerinsky said, adding what will ultimately decide this case is the science.
"It's going to come down to medicine, and if (the procedure) really inflicts great, lifelong harms on those who are subjected to it — that's what is going to decide this case," he said.
First Amendment attorney Brad Dacus, president of the Pacific Justice Institute, a conservative legal defense group in California that defends religious freedom, parental rights and other civil liberties, agreed. He said while genital mutilation is a novel issue for the federal courts, the government's interest in protecting the safety and well-being of children will likely outweigh religious freedom.
"As far as case law goes, this is new territory," Dacus said. "But the courts have held in the past that religious freedom is not an absolute right. And it is subject to a state interest that is narrowly tailored."
In this case, the government's interest is in protecting children from what it has claimed is an illegal and harmful procedure.
"This issue involves the direct health, safety and welfare of minors, not just for the short term, but literally for the rest of their lives," Dacus said. "And it impacts not only their body, but also potentially their future spousal relations."
As for the defense claims that the procedure was more mild than what the government claims, Dacus noted: "There are experts who contend that even the most mild procedure is still harmful."
He continued: "The science is definitely going to come into play there. I think the procedure itself is highly suspect for surviving scrutiny."
'A very minor nick'
Michigan State University law professor Frank Ravitch, who specializes in law and religion, said the only way the doctors could win based on freedom of religion is to show that there is a "more narrowly tailored way" to meet the government’s "extremely strong interest" in protecting the young women.
"It is theoretically possible that if the procedure really was just a nick that does not cause lasting damage and does not harm sexual health or sensitivity for the young women, allowing the nick, but nothing more, could be more narrowly tailored than an outright ban," Ravitch said. "It would also keep the practice from going underground, which could lead to more serious mutilation."
That philosophy — preventing more serious mutilation — was at the heart of a controversial stance taken years ago by the American Academy of Pediatrics. In 2010, the AAP came under fire for changing its policy on female genital cutting by recommending that doctors be allowed to ceremonially nick the clitoris of girls at the requests of parents. The goal was to prevent girls from being subjected to more harmful forms of genital mutilation either overseas or in secretive procedures in the U.S.
In the statement, the AAP's Committee on Bioethics wrote: "It might be more effective if federal and state laws enabled pediatricians to reach out to families by offering a ritual (clitoral) nick as a possible compromise to avoid greater harm."
Within weeks of issuing the statement, after facing mounting pressure from advocacy groups, the AAP went back to its original position in banning all forms of genital cutting.
The ‘nick’ philosophy, however, was revisited last year by two American doctors, who in a study published in the Journal of Medical Ethics suggested allowing parents to have their daughters' genitals nicked to prevent sending the girls overseas for more harmful procedures.
The authors wrote: “We are not arguing that any procedure on the female genitalia is desirable. … We by no means condone oppression. … However, in order to reduce the prevalence of the extensive forms of FGA, we propose a compromise solution that is ethical, culturally sensitive and practical.”
'They didn't commit the crime'
Mary Chartier, one of the defense lawyers in the Detroit case, has faith in the jury system. She believes that fair-minded jurors will be seated in this case — which she says has "inflamed passions" — and will conclude that the defendants didn't do what the government says they did.
Moreover, she said, jurors will see that the procedure at issue is a religious one that is constitutionally protected.
"Will jurors have an initial bias on what happened here? They probably will. ... But most jurors will really want to do what's right," Chartier said. "I think we can convince 12 people that they did not violate the law. ... They just didn't commit the crime."
Chartier is representing Dr. Fakhruddin Attar, 53, of Farmington Hills who is accused of letting another doctor use his Livonia clinic to carry out genital cutting procedures. That physician is Dr. Jumana Nagarwala, 44, of Livonia, a former emergency room physician at Henry Ford Health System who was fired from her job following her April 10 arrest in the federal case.
The third defendant is Attar's wife, Farida Attar, 50, who is accused of holding the hands of at least two victims during the cutting procedures to comfort them.
All three defendants are members of the Dawoodi Bohra sect, which is known for practicing female circumcision on girls for religious reasons. The defendants are accused of secretly subjecting girls to the procedure, and then trying to cover up the acts when they were discovered and encouraging others in their religious community not to cooperate with authorities — or to lie to them — if questioned about genital mutilation.
Chartier said while multiple constitutional arguments will be made — freedom of religion being just one of them — one of the most significant points the defense will make is "what the procedure actually is."
"We know there is female genital mutilation. No one is saying it doesn't exist. But what we're saying is this procedure does not qualify as FGM," Chartier said.
"And even if it did, it would be exempt because it would violate their First Amendment rights. They believe that if they do not engage in this then they are not actively practicing their religion."
Chartier said the 1996 law that is being used to prosecute this case is "unconstitutionally vague and overly broad." She believes parental rights are being violated, arguing parents have the right to raise their children as they deem fit.
She also believes the statute violates the constitution's equal protection clause in that it treats men and women differently. Specifically, it prohibits female circumcision but allows male circumcision.
"Male circumcision is allowed, which is much more invasive than the very minor religious procedure (that defendants practice)," said Chartier, who believes the religious freedom argument will stick.
"Jurors will listen carefully and they will follow the law," she said. "This country was founded on religious freedom. That's what the core of this country is."
Robert Sedler, a constitutional law professor at Wayne State University, believes the male circumcision versus female cutting argument does not raise a valid equal protection argument. He offers several reasons.
Male circumcision has health benefits, such as helping prevent disease and cleanliness. By comparison, he said, "there is no good medical reason" for female genital cutting.
Male circumcision does not affect a man's ability to enjoy sex as an adult. However female circumcision can curb a woman's sexuality and can make sex painful and childbirth difficult.
Sedler said when it comes to the constitutional right to parent, a ban on male circumcision — which is practiced by Jews and Muslims — wouldn't stick because the procedure has not been deemed harmful by the medical community and there are medical and aesthetic benefits to it.
Nagarwala's lawyer, Shannon Smith, declined comment for this article. But in court, she has repeatedly argued that her client's actions were "completely a religious practice."
'It's blind faith'
According to health agencies and human rights organizations, the reasons for practicing female genital mutilation vary from one region to another, though many experts stress it’s more about tradition and rite of passage than religion.
A United Nations advocacy group for women’s health says: “FGM is a cultural rather than a religious practice. In fact, many religious leaders have denounced it.”
According to the World Health Organization, UNICEF and the UN Population Fund, which advocates for women's reproductive health, here are among the top reasons cited for genital cutting:
- Sociological and cultural reasons, where the procedure is seen as part of a girl’s initiation into womanhood and a key part of a community’s culture. FGM is often considered a necessary part of raising a girl and a way to prepare her for adulthood and marriage.
- Sexual control, with the goal being to curb a woman’s sexuality to avoid premarital sex or having affairs once she’s married.
- Social norm. The pressure to conform and not be rejected by a community is a big motivator for genital mutilation.
- Hygiene.In some communities, the female genitalia are considered dirty and ugly and are removed for hygiene or aesthetic reasons.
- Religion. Although genital cutting is not endorsed by any religion, some believe the practice has religious support and is a religious requirement, as do the Dawoodi Bohra.
For Mariya Taher, who grew up in the Dawoodi Bohra community and underwent genital cutting when she was 7, the religious argument for the procedure has no basis. Neither does the "it's just a nick" philosophy, she said.
"They keep throwing that argument — that 'we are not mutilating,' " said Taher, noting one of the barriers to ending genital cutting is convincing people in her community that religion doesn't require it.
"The religious administration of this community is in India. They have been emphasizing that this is (required) ... they're trying to claim that there is a religious connection to it," said Taher, noting many Bohras are afraid to question the directive.
"It's blind faith," she said. "There are a large number of people who are afraid of being excluded. They might not want (cutting) to happen, but others have pressured them. And there's a lot of fear of social ostracism."
But resistance is growing.
Taher, 34, who is now a social activist in Cambridge, Mass., working to end genital mutilation worldwide, is among several Bohra women who have publicly denounced the practice. She views all forms of genital cutting — even the so-called ritual nick — as oppressive and a form of child abuse that has negative physical, emotional and sexual consequences.
Many Bohra communities across the U.S., including the Detroit chapter, also have urged their members not to practice it because it's illegal in the U.S. and their religion requires them to follow the laws of of the land.
"I hope this is an opportunity for more awareness and education on this issue," said Taher, who sees progress, but believes the problem is still more widespread than the numbers show.
'The doctor made her cry'
Prosecutors have argued that the federal genital mutilation law is clear: It prohibits "knowingly circumcis(ing), excis(ing) or infibulat(ing) the whole or any part of the labia majora or labia minora or clitoris of any other person who has not attained the age of 18 years."
Assistant U.S. Attorney Sara Woodward has argued repeatedly in court that the defendants knew what they were doing was illegal, but did it anyway. She has called their crimes "heinous" and argues the harm was severe.
According to court documents, in interviews with authorities, the two Minnesota victims described the genital cutting procedures as painful.
One girl said that she got a shot, screamed, and "could barely walk after the procedure, and that she felt pain all the way down to her ankle." The other said she was "laid on an examining table with her knees near her chest and legs spread apart," that she was "pinched" in the genital area, that it "hurted a lot" and that there was "pain and burning."
Both girls were told to keep the procedures a secret, court records show. One said "the doctor made her (friend) cry."
"According to some members of the community who have spoken out against the practice, the purpose of this cutting is to suppress female sexuality in an attempt to reduce sexual pleasure and promiscuity," a Homeland Security Investigations special agent wrote in an April 20 court filing.
Especially egregious, authorities have argued, is that this procedure was carried out by a doctor who took an oath to do no harm.
"She knew that this was illegal but did it anyway," Woodward has said of Nagarwala, stressing: "As a medical doctor, she is aware that female genital mutilation has no medical purpose."
Contact Tresa Baldas: tbaldas@freepress.com
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