US v. Nagarwala: A Case for Ending Impunity for Child Abuse

Shama Abbasi, WeSpeakOut member, Assistant Professor at the Jindal Global Law School and Assistant Director, Mahatma Gandhi Centre for Peace Studies in Delhi, India writes about the FGM case in Detroit, USA:

 

On the 12th of April 2017, Special Agent Kevin J Swanson, FBI submitted an Affidavit to U.S. Magistrate Anthony P. Patti securing a complaint against Dr Nagarwala for violating three code sections. These were - 18 USC Section 116 (Female Genital Mutilation), 18 USC Section 2423 (a) and (e) (Transportation with intent to engage in criminal sexual activity, and conspiracy) and 18 USC Section 1001(Making a false statement to a federal agent). This affidavit established probable cause to find the defendant Dr Nagarwala in defiance of the federal statute. The government alleged that Dr Nagarwala’s illegal practice has spanned over the years and the FBI was able to secure strong evidence from two recent victims.

The Case, as it passed through the United States District Court, Eastern District of Michigan, Southern Division, merits a brief recounting. Let us at the very outset declare that the court dismissed the case on technical grounds. The age-old tug-of-war between the Federal Government and the State played out before Judge Freidman. The only ones who lost that day were the young girls, in search of justice. Through this blog, I try to rebut these technical grounds and appeal to the readers to bear with me as I summon some legal jargon to my aid.

The Case:

The following subsections illustrate the two technical grounds that proved to be lost battles in the war against FGM in the United States.

The Necessary and Proper Clause

The Michigan court acknowledges, Congress may pass legislation to effect a treaty, {e.g., Missouri v. Holland, 252 U.S. 416 (1920), but only to the extent that the two are rationally related. Though the government argued that the laws criminalizing female genital mutilation (FGM) were a direct implementation of Articles 3 and 24 of the International Covenant on Civil and Political Rights (ratified by the Senate in 1992), the court rejected the Government’s argument. The court stated that the FGM laws were not rationally linked to ensuring Civil and Political Rights (A.3 - for instance, the rights to vote or to expression among others), nor were they anti-discriminatory in nature (A.24), creating equality and equity among children irrespective of their race, religion, nationality etc.

The court offered an alternative argument for rejecting the government’s claims. It stated that even if we were to assume that there is a rational relationship between the articles of the ICCPR and the FGM laws, the reservations against A.50 of the ICCPR, as explained by the Bush administration defeat the government’s claims. The reservations explicitly state that though the Covenant will apply to all states and local authorities, it will not in any way disturb the federal balance. Simply put, the ICCPR will not federalize powers that vest in the state authorities. The court then explained that since the power to regulate crimes primarily rests in the hands of the state authorities, any laws enacted by the Congress on this matter would be outside the Constitutional mandate.  Quoting the US. v. Bond 572 U.S. 844 (2014):

nothing prevents Congress from implementing the Convention, in the same manner, it legislates with respect to innumerable other matters - observing the Constitution’s division of responsibility between sovereigns and leaving the prosecution of purely local crimes to the States

the court emphasizes that the FGM laws are neither ‘necessary’ nor ‘proper’ and that the Congress overstepped its bounds by legislating to prohibit FGM.

The Commerce Clause 

Introduced as 16 words in Article 1 Section 8, Clause 3, the Commerce clause has played a significant role in balancing powers between the federal and state governments and between the two elected branches and the judiciary. Its interpretation has been the centre of debate in many significant cases and affects American lives directly. The case at hand employs the commerce clause in two distinct ways: one, the government argues that FGM “substantially affects interstate commerce”, and two, it is “an illegal form of healthcare”. If either of these contentions could be accepted, Congress would have had the power to regulate FGM. However, both these arguments were rejected by the court. The court stated that the government had not brought sufficient evidence to show that there is an interstate market for FGM. The government did themselves a disfavor by analogizing FGM to multi-billion dollar markets like child-pornography and marijuana trade. On point two, the court cursorily dismissed the analogies to abortion and general health care. Further, it clarified that as per Norton the court could support Congress’s power to legislate if it contained “a jurisdictional element limiting the reach of the law to a discrete set of activities that had an explicit connection with, or effect on, interstate commerce”. The FGM laws did not meet this test and failed the other two alternatives as well.  There was a lack of congressional findings and of evidence to showcase substantial effects of FGM on interstate commerce. The FGM laws failed the test of the Commerce Clause. This lack of Congressional power to legislate on FGM was analogized to similar attempts made in the past with the laws against guns in and around schools (Lopez, 514 U.S) and gender-motivated crimes of violence (Morrison, 529 U.S. 598).

In conclusion, the court argues that the commerce clause does not allow Congres to legislate on activities that “no one single state can control” but only on activities that have a substantial effect(s) on interstate commerce. The court claims that if FGM is “criminal sexual conduct because it involves unlawful touching and penetration”, then all states have criminal laws in place that outlaw it and that “no state offers refuge to those who harm children”.   

The Arguments for Reversal

Judge Friedman’s bold claims about the lack of impunity for those who harm children are a dream for all those abused at the hands of their parents and some doctors who destroy the bodily autonomy of minor girls on the name of religion/culture. These individuals have been escaping legal consequences despite the early enactment of the federal laws against FGM. In 1993 Congresswoman Patricia Schroeder introduced the bill banning FGM, and it was enacted on the 30th of September 1996. The most significant reported struggle concerning FGM in the US has been the lack of data available to chart and curb the practice (See Centre for Reproductive Rights, Legislation on Female Genital Mutilation in the United States, Briefing Paper https://www.reproductiverights.org/sites/default/files/documents/pub_bp_fgmlawsusa.pdf). This peculiar feature of this practice may be one of the most cogent argument to enforce a federal ban against it under the commerce clause. The readers who are passionate about removing impunity for Dr Nagarwal and all others who contribute to this terrible form of child abuse may rejoice in the fact that the Supreme Court of the United States has potentially three clear paths to reverse the impugned order.   

  1. Reversal of the verdict on the “Necessary and Proper Clause”: Justice Marshall in 1819, speaking through the landmark judgment in McCulloch v. Maryland exclaimed that “The government of the union [is] emphatically and truly, a government of the people.” He stated that the union government’s powers are granted directly by the people “to be exercised directly on them and for their benefit”. Justice Marshall goes on to explain that the meaning of the word “necessary” in light of the above is not restrictive; it is rather expansive. This expansive definition of “necessary” laws to manifest the limited powers granted to the Congress through the US Constitution would thus mean, anything that is “convenient, or useful, or essential”.

This reversal will take no more than the acceptance of a simple logical premise. Raz points out in his famous treatise “The Morality of Freedom” the autonomy of an individual cannot exist unless her bodily integrity is preserved along with her political rights. Civil and political rights are inextricably linked with the preservation of socio-economic rights of individuals (See Also, Sandra Fredman, Human Rights Transformed, OUP, 2008). An individual with a history of abuse that has left them incapable of sound judgment would not be in a position to exercise political freedoms. Simply put, one cannot be expected to exercise the right to vote on an empty stomach. Thus A. 3 and A.24, that is, assurances of civil-political rights irrespective of gender, and non-discrimination among minors are both secondary goals. These goals can be attained only if an individual has access to the bare minimums, for instance, bodily autonomy and integrity. Formal equality cannot be exercised without access to the protection of life and bodily autonomy. FGM violates the bodily autonomy of a minor. What is more, it is usually exercised against young girls from specific cultural/religious communities, thereby making certain groups more vulnerable than the rest. The government is thus well supported in exercising its treaty enforcing powers. Federal FGM laws are both “necessary” and “proper” for the enforcement of Articles 3 and 24 of the ICCPR.

The alternative proposed by Judge Friedman, based on the reservations against the enforcement of the ICCPR by the federal government may stand. I believe the FGM laws could be declared “necessary and proper” using the arguments of Prof. Akhil Reed Amar, in his work on the thirteenth amendment to the Constitution. This is elaborated upon in the following subsection.  

  • The victim’s rights under the Thirteenth Amendment: Inspired by Justice Blackmun’s dissent in the DeShanny case, Prof. Amar passionately makes a strong case for federal protection of abused children through its powers under the thirteenth amendment. The thirteenth amendment proclaims that “slavery, of all forms and in all places, shall not exist”. Prof. Amar lauds Justice Blackmun's analogy where he compares abused children to antebellum slaves and criticizes his fellow judges for taking the wrong call in DeShannyi. A young boy was rendered severely damaged at the tender age of five due to the physical abuse of his father. Prof. Amar argues that this form of custody to biological or foster parents, where the parents use their authority not in the interest of the child but against it, is easily subsumable within the definition of slavery under the thirteenth amendment. He argues that “Treating [a] child not as a person but as a chattel, acting as if he had title over the child rather than a trusteeship on behalf of the child” qualifies as slavery. He also clearly distinguishes between regular custody that all parents have over their children and the existence of abusive authority as captured under the thirteenth amendment. This argument can surely be extended to the victims of FGM. The parents and the healthcare practitioners, as private individuals capable of exercising complete authority on the minor girls abuse her and treat her as a commodity, transferring her to states where FGM is not criminalized and mutilating her. In those hours or days while this elaborate scheme is planned, when the young girls are brainwashed to keep the trip a secret and are discretely shipped to a doctor who willingly harms her, defying the Hippocratic oath, cannot be anything short of slavery. As per section 2 of the Thirteenth Amendment, “Congress shall have power to enforce this article by appropriate legislation.” Thus the federal FGM laws fall within this power and ought to be upheld as Constitutional.
  1. Reversal of the verdict on the “Commerce Clause”: Another strong argument in favor of federal laws against FGM may be made under the Commerce Clause. The Courts may appreciate the peculiar nature of this practice and the intense effort required to unearth evidence. This is due to the incomparable secretive nature of this practice. In many homes including mine, the fathers of these young girls may remain unaware of the trip they take. The limited number of people involved and the high level of anonymity it demands cannot be emphasized enough. This can be evidenced by the public claims of “the community” to uphold the laws against FGM while it continued to practice it behind closed doors. These misleading claims coupled with the highly secretive nature of this practice may persuade the court to relax the evidentiary requirements under the ‘fourth factor’ of the Commerce Clause. Further, as early as 1990 CDC estimated that, “there were approximately 168,000 girls and women living in the United States with or at risk for FGM/FC” (Wanda K. Jones et al., Female Genital Mutilation/Female Circumcision: Who Is at Risk in the U.S.?, 112 Pub. Health Rep. 368, 372, 1997). Such a high-risk factor coupled with the lack of prospects of discovering a paper trail ought to persuade the US Supreme Court to relax some evidentiary technicalities in favor of the victims and the federal government. The only way to gather data on such practices would be a resource-intensive covert operation as was involved in the present case. Due to the impossibility of such operations being conducted in all 22 state where FGM is not prohibited by law, the data available ought to suffice to meet the requirements of the Commerce Clause.

Conclusion

As of January 2019, 28 of the 50 states in the USA have laws in place that prohibit FGM. This increases the incentive for those indulging in the practice to cross state borders to escape the clutches of the law. It is also more likely that doctors and health care practitioners who still offer these “services” would do so more boldly in these states. This encourages the practice of forum shopping, so to speak, for this heinous practice.

The federal laws banning the practice are the only recourse to curb impunity in the 22 states. Judge Friedman’s suggestions that one ought to use regular criminal laws against child sex abuse are a farfetched dream due to the peculiar nature of this practice. Thus, a specific nationwide ban on this practice is not just desirable but also essential for the safety of the young girls who fall prey to it.

As argued above, all three, the “Necessary and Proper Clause”, the Thirteenth Amendment and the relaxed reading of the “Commerce Clause” can restore the federal power to legislate against FGM. These may serve as the tools to end legal impunity against FGM practitioners in the US.  

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