A federal judge in the city of Detroit on Tuesday declared a 1996 United States law banning female genital cutting unconstitutional. US District Judge Bernard Friedman dismissed charges against two Michigan doctors and six others accused of performing the procedure on nine minor girls, the Detroit Free Press reported.
He also dismissed the prosecution’s charges against three women, including two from Minnesota, who tricked their seven-year-old daughters into thinking they were going to Detroit for a weekend trip, but instead were made to undergo the procedure at a clinic in Livonia city.
“As despicable as this practice may be, it is essentially a criminal assault,” Friedman said, according to Reuters. “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.”
Friedman said that “federalism concerns deprive Congress of the power to enact this statute”, that is, ban female genital cutting. He said it is for the states to regulate the practice.
Currently, female genital cutting is prohibited in 27 US states, including Michigan where it carries a 15-year jail sentence since 2017. Gina Balaya, a spokesperson for US Attorney Matthew Schneider in Detroit, said the government is reviewing the verdict and will decide whether to appeal against it.
The Dawoodi Bohra community is the only one in India known to practice female genital cutting, which typically involves a cut or nick to the clitoral hood. The practice, called khatna or khafz within the community, is defined by the United Nations as Type-I female genital mutilation, which defines this type as including either the cutting of the clitoral hood or the partial or total removal of the clitoris. It is usually done to girls at a young age.
The practice is not yet illegal in India, but female genital cutting in any form has been outlawed in several countries around the world.