'This matter is vindictive': Federal judge throws out landmark female genital mutilation case

DETROIT — A federal judge on Tuesday threw out the nation's first female genital mutilation case, delivering a major blow to the prosecution and survivors who had hoped the Detroit case would help end a practice that is still performed on millions of girls worldwide.

In dismissing the four-year-old case, U.S. District Judge Bernard Friedman concluded the prosecution was vindictive in seeking new charges against the accused, who had previously convinced the judge to declare the federal female genital mutilation ban as unconstitutional.

"The court concludes that the prosecution in this matter is vindictive. The government

obtained the fourth superseding indictment, which asserts new and additional charges, in retaliation for defendants’ past success in having other charges dismissed," Friedman wrote in his ruling. "Such vindictive or retaliatory prosecution is a due process violation of the most basic sort."

The lead defendant is Dr. Jumana Nagarwala, whom prosecutors allege cut the genitals of nine minor girls during after-hours procedures at a Livonia clinic that belonged to her doctor friend, who also was charged in the case. Nagarwala has long denied engaging in genital mutilation, saying the procedure she performed on minor girls was a benign, religious practice that involved only scraping or "shaving" of the genitalia, not cutting.

Nagarwala's attorney, Shannon Smith, applauded Friedman's ruling, but called the ending of this case "bittersweet."

"Yes, they've won, but they've never been vindicated in court. Those things never happened. The things the government alleged never happened," Smith said. "Our clients have lost so much of their lives. The impact on their lives has been unspeakable. It’s hard. They’ve gone through half a decade of being charged and living under these charges."

Smith also expressed frustration with much of the case being sealed.

"I'm not surprised with how it ended. But what’s really sad is that so much of the case is under seal and is not available to the public," Smith said. "I can understand why people reading about this are going to be so upset and confused and not understand ... but so much of the case is under seal."

The U.S. Attorney's Office declined comment Tuesday, noting it has not yet reviewed the judge's ruling, which essentially ends the case unless the government appeals.

The case involves nine girls, ages 7 to 12, from Michigan, Illinois and Minnesota, including some who cried, screamed and bled during the procedure and one who was given Valium ground in liquid Tylenol to keep her calm, court records show.

Among the accused were three mothers, including two Minnesota women whom prosecutors said tricked their 7-year-old daughters into thinking they were coming to metro Detroit for a girls' weekend, but instead had their genitals cut at the Livonia clinic as part of a religious procedure.

Female genital mutilation case: Michigan doctor part of secret network who cut girls, feds say

Since the case emerged in 2017, the bulk of the charges had been dropped and the federal female genital mutilation law was declared unconstitutional in 2018. In making that decision, Friedman concluded that "as despicable as this practice may be," Congress did not have the authority to pass the law that criminalizes female genital mutilation, and that FGM is for the states to regulate.

Female genital mutilation is banned worldwide and has been outlawed in more than 30 countries, though the U.S. statute had never been tested before this case. A new and tougher law has since been passed, though the defendants cannot be tried under it retroactively.

The case was set to go to trial in April 2019 on a single obstruction charge, but COVID-19 hit and the prosecution came to a halt.

This year, prosecutors sought new charges.

In March, the government issued its fourth superseding — or new —indictment that includes five new charges, including conspiracy to make false statements and witness tampering. Prosecutors allege that Nagarwala and her three cohorts lied to the FBI about female genital mutilation that was going on in their community, and instructed others in their religious community to do the same if the FBI came asking questions.

The defense lambasted the new charges, arguing they were about vengeance stemming from the many blows the prosecution took in years past, specifically 2018, when Friedman declared the federal law unconstitutional and dismissed nearly all charges.

"The government is acting with extreme prosecutorial vindictiveness in issuing yet another superseding indictment nearly half a decade after charges were first issued," the defense previously argued in court filings.

Friedman agreed, stating that the repeated challenges by the defense "put the prosecutor through a great deal of inconvenience and embarrassment …they all but destroyed the government’s case.”

“(The) defendants forced the government to “do over what it thought it had already done correctly” not just once, but three times," states Friedman, who also called the charges in the latest indictment "unreasonable."

Specifically, Friedman found that the prosecution could have brought up the witness tampering and lying to the FBI about female genital mutilation charges years ago, but did not.

Currently, 40 states have laws that criminalize female genital mutilation, including Michigan, which passed its statute in the wake of the federal case.

Michigan's law applies to both doctors who conduct the procedure, and parents who transport a child to have it done. The defendants in this case can't be retroactively charged under the new state law.

'This is demonic': Genital mutilation victims break their silence

The defendants are all members of a small Indian Muslim sect known as the Dawoodi Bohra, which has a mosque in Farmington Hills. The sect practices so-called "female circumcision" and believes it is a religious rite of passage that involves only a minor "nick."

Yasmeen Hassan, executive global director for Equality Now, an international women's rights organization, has previously decried the developments in the Michigan case, saying they send a disturbing message to women and girls.

"It says you are not important," Hassan has previoulsy said.

"In this day and age, for FGM to still occur — and a federal government can’t regulate this with a human rights violation — is very bizarre," Hassan said after the ban was declared unconstitutional. "This is not what I expected. It's so not what I expected."

Prosecutors have alleged that Nagarwala subjected as many as 100 minor girls to FGM over a period of 10 years, though the case cites only nine alleged victims: two 7-year-old girls from Minnesota; four Michigan girls, ages 8-12; and three Illinois girls. They said Nagarwala did this with the help of Dr. Fakhuruddin Attar, who is accused of letting Nagarwala use his Livonia clinic after hours to carry out the procedures; and his wife, Farida Attar, who is accused of assisting Nagarwala in the examination room during the procedures and holding the girls' hands.

Nagarwala has long maintained that she committed no crime and that she was charged under a law that slid through Congress without proper vetting.

The prosecution disagreed, arguing that genital mutilation is an illegal, secretive and dangerous health care service that involves interstate commerce on a number of fronts: Text messages are used to arrange the procedure; parents drive their children across state lines to get the procedure, and the doctor uses medical tools in state-licensed clinics to perform the surgeries.

In charging the defendants, prosecutors noted that FGM is condemned worldwide — it's illegal in more than 30 countries — and has no medical benefit, but rather is about controlling girls and their sexuality.

As Assistant U.S. Attorney Sara Woodward argued repeatedly: the defendants knew what they were doing was illegal, but did it anyway, and that Nargarwala was "aware that female genital mutilation has no medical purpose."

Contact Tresa Baldas: tbaldas@freepress.com.

This article originally appeared on Detroit Free Press: Federal judge tosses Detroit's historic female genital mutilation case