Detroit Genital Mutilation Case New Territory For 1st Amendment

DETROIT, MI — Lawyers for three people charged in a sweeping federal investigation into female genital mutilation plan to defend their clients under the religious freedom clause in the First Amendment, according to media reports. Federal law has made the practice illegal in the United States for more than two decades, but the landmark Detroit case is the first time the law has been challenged.

All three of those criminally charged — Dr. Jumana Nagarwala, 44, of Northville, and Dr. Fakhruddin Attar, 53, and his wife, Farida Attar, 50, of Farmington Hills — are members of Dawoodi Bohra, a small Indian Muslim sect with a mosque in Farmington Hills. They have said through their attorneys that two 7-year-old Minnesota girls at the center of the case were not cut but were merely scraped in the centuries-old ritual and that they are being persecuted by the U.S. government for being Muslim.

Genital mutilation, intended to curb girls’ and women’s sexual pleasure and promiscuity, has been internationally condemned as a violation of their human rights by the World Health Organization, UNICEF and the UN Population Fund, among others. Serious health consequences can result, including chronic pain, infections, infertility, complications during childbirth and psychological problems. (For more local news, click here to sign up for real-time news alerts and newsletters from Detroit Patch, click here to find your local Michigan Patch. Also, follow us on Facebook, and if you have an iPhone, click here to get the free Patch iPhone app.)

The historic genital mutilation case will raise for the first time whether the U.S. Constitution protects female genital mutilation in any form.

“It is hard for me to imagine any court accepting the religious freedom defense given the harm that’s being dealt in this case,” First Amendment expert Erwin Chemerinsky, one of the nation's leading constitutional law scholars and dean of the law school at the University of California at Irvine, told the Detroit Free Press. “You don't have the right to impose harm on others in practicing your religion.”

Religion isn’t an absolute right in the United States, Chemerinsky said, noting that courts have consistently ruled again Jehovah’s Witness and Christian Scientist families who have argued the First Amendment gives them the right to refuse medical care for their children.

If defense attorneys can prove that the procedures involved only scraping, as the defendants have maintained, they could be acquitted on religious grounds, legal scholars told the Free Press.

However, the government contends in charging documents that medical examinations of the girls at the center of the case showed evidence of scarring, and that they told investigators the secret procedure at the Attars’ clinic in Livonia was painful.

According to the criminal complaint against Nagarwala, one of the girls from Minnesota told an FBI forensic investigator that she screamed in pain when she “got a shot” after being told to take off her pants and underwear and that she could “barely walk and felt the pain all the way down to her ankle.” The complaint also says the procedure made one of the girls cry.

Attorney Mary Chartier, who is representing Fakhruddin Attar, told the Free Press the procedure in question isn’t FGM.

“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,” she 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.”

Regardless, the case plows “new territory,” Brad Dacus, president of the California-based conservative legal defense group Pacific Justice Institute, told the Free Press. Like Chemerinsky, he doesn’t think the defendants will prevail because of earlier rulings that religious freedom isn’t an absolute right subject to the state interest in protecting children.

“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 told the Free Press. “And it impacts not only their body, but also potentially their future spousal relations.”

All three of the defendants are in federal custody in lieu of bail.

In state court, Nagarwala faces the loss of her parental rights, as do two other Wayne County residents whose children underwent the procedure. In two Oakland County cases, juvenile court referees declined to remove the children from their homes. In the case of the Attars’ daughter, she will remain in her Farmington Hills home under the supervision of relatives.

Photos of Dr. Jumana Nagarwala, left, and Dr. Fakhruddin Attar via Henry Ford Health System and St. Joseph Mercy Health System, respectively.