Will a New Anti-FGM Bill Close Loopholes in Federal Commerce Clause Laws?

A Judge's gavel, also called a hammer, signifying a court where the law is upheld.
A Senator is trying to push a new bill through that will close the existing loopholes in Federal Commerce Clause laws that allowed a Judge to dismiss FGM charges as unconstitutional.

Ever since the huge female genital mutilation scandal that took the Detroit area by storm in April of 2017, the subject has made headlines over and over, as the case took several unexpected turns. First there were some unexpected charges, as more and more people were implicated in the allegations. Then families were torn apart as CPS stepped in and removed kids from homes where parents were accused of facilitating FGM, and criminal charges were brought on a federal level. But that’s where things got complicated…

A federal Judge tossed the charges, saying they were unconstitutional!

In his 28 page decision, Judge Friedman explained his controversial decision to throw out the charges for being unconstitutional. As despicable as this practice may be, he said, Congress had overstepped its bounds in 1996 by making FGM illegal, so any charges based on that first faulty decision shouldn’t stand. FGM, he went on to say, is a “’local criminal activity’ that, in keeping with long-standing tradition in the United States, should be regulated and punished by the states themselves, not Congress. For future FGM cases here in the U.S. if prosecutors hope to bring charges that stick, they’ll need to use state laws to prosecute alleged offenders.

Many people were angry about the Judge’s decision!

In the end, a lot of people were very upset that Drs Nagwala and Attar didn’t end up facing charges. Angry enough, in fact, that they decided to make sure that it never happened again. Currently there are only 34 out of 50 states where FGM is illegal (which was the issue when the charges were filed – Michigan didn’t have anti-FGM laws on the books, so when they were later created, they couldn’t be retroactively applied!) And the current federal law banning FGM  doesn’t include the needed Commerce Clause language which would allow federal prosecutors to bring charges against perpetrators.

So the Department of Justice asked the Senate to address this issue.

In April 2019, the Department of Justice (DOJ) sent a formal letter to Congress, asking them to amend the law and add the necessary Commerce Clause language to 18 USC § 116(a). That would allow the federal government to “regulate and protect the channels of interstate commerce, the instrumentalities of interstate commerce, and activities that “substantially affect commerce.” This would allow charges to be brought against anyone, anywhere in the US for the practice of FGM, even if they crossed a state border to achieve the procedure.

The new bill has received wide support so far in the Senate.

The Federal Prohibition of Female Genital Mutilation Act of 2019 was spearheaded by Senator Blackburn, a republican from Tennessee, but the number of co-sponsors is prodigious. “Perpetrators of FGM must be held responsible for their grotesque actions – even after they cross state lines.” Senator Blackburn said at a recent media event. “No woman or girl should have to watch her abuser go unpunished. This legislation closes a crucial loophole and introduces six circumstances under which the practice is considered a federal crime.”

Immigrant cultural practices can lead to a lot of misunderstanding in the U.S.

FGM is a very controversial subject, and this case in particular has drawn battle lines all over the country. But not all cultural practices from other countries and cultures are as black and white. There have been many instances where loving parents were doing something that was completely acceptable in their home country, and CPS ended up involved because the practice isn;t considered acceptable here. If this sounds like your situation, and you need help from a sensitive and understanding child abuse defense attorney, call 866 766 5245 today and discuss your sitaution with The Kronzek Firm. We can help you.