December 4, 2018
500,000 girls in the U.S. are at risk of female genital mutilation. With a ban on the practice struck down, we need new legislation to protect them.
For more than two decades, underage girls in this country have been federally protected from the horrific practice of female genital mutilation (FGM). The ritualistic cutting or removal of a young girl’s external genitalia is an anachronistic act that occurs mostly in parts of Africa, the Middle East and a few countries in Asia. Last month, during a trial of a Michigan doctor accused of performing FGM on nine minor girls, a federal judge ruled that the law banning FGM is unconstitutional. Now, Congress and the states must act immediately to re-enact FGM protections.
FGM is decried internationally for its cruelty. It is denounced by the World Health Organization (WHO), the United Nations Children’s Fund (UNICEF) and the United Nations Population Fund (UNFPA) as a violation of basic human rights and a form of child abuse. At its most basic, this practice is rooted in the desire to control a woman’s sexuality. Physicians worldwide agree that FGM is medically unnecessary, and the procedure poses physical, sexual, and psychological dangers for the young victims. These girls, sometimes only a few days old, are subjected to an act that will have a profound negative effect on their lives.
Michigan ruling was misguided
In the Michigan case, the defendants were charged under the 1996 statute that banned FGM on minors. In their motion to dismiss, the defense claimed that Congress had overstepped its constitutional authority by enacting this statute. Judge Bernard Friedman agreed with this position and ruled the law unconstitutional.
Judge Friedman’s ruling rests on his belief that Congress, under principles of federalism, lacks the authority to prohibit this activity under the Commerce Clause because it is not a “commercial activity.” I share those views in some respects. And perhaps, Congress should address the judge’s concerns to make clear the federal aspect of this crime. But this ruling is nevertheless misguided and wrong.
Judge Friedman is too quick to dismiss the interstate “market” for this horrid procedure. In his decision, he rejects the comparison of the FGM marketplace to that of other illicit goods, like marijuana or child pornography. But in his view, because there are only “…a small number of alleged victims” and not billions of dollars at stake, there is no real market for FGM.
This reasoning fails on two fronts. First, this case absolutely demonstrates an interstate marketplace. Five of the victims were transported across state lines for the sole purpose of undergoing this mutilation. A relatively small marketplace is still a marketplace. Second, while there are the nine victims in this case, the Centers for Disease Control and Prevention reported in 2012 that there are likely more than 500,000 women and girls in the United States who are at risk of being victims of this procedure. Today these women are now at a greater risk as a result of this ruling.
We need to protect at risk girls
The Trump administration should appeal this decision immediately. This law has protected girls from FGM for 22 years. To accept this ruling without contention would be a dereliction of our duty to protect our young girls from this this abuse.
Without a federal ban in place, FGM is now legal in 23 states. Unless these states act swiftly to ban the practice, more of America’s young girls remain at risk. While Judge Friedman suggests that FGM can be prosecuted under existing assault statutes, this especially barbaric form of child abuse — being masqueraded as a religious practice — deserves to be addresses explicitly in our criminal code.
For my part, I intend to introduce legislation early next year to reinstitute a federal ban on this practice. The message should be clear to the women and girls of America — they are protected from this barbaric practice.
Congressman Jim Sensenbrenner represents Wisconsin’s Fifth Congressional District. He is a former Chairman of the House Judiciary Committee and current Chairman of the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations.
You can view this piece online here.