Wednesday, November 21, 2018

Thoughts on Judge Friedman's dismissal of FGM charges

Here's what happened:

In a stunning ruling yesterday, U.S. District Judge Bernard Friedman in Detroit dismissed charges against two doctors and others in a case involving at least nine female genital mutilation (FGM) victims from Minnesota, Illinois, and Michigan -- including two seven-year-old girls.
The two doctors and three mothers charged in the case are followers of the Dawoodi Bohra sect of Shia Islam. Their defense attorneys claimed that the FGM procedure was a protected religious rite:
During the case it was revealed that a mosque had paid for the FGM procedures.
At least one of the girls was drugged in order to take her across state lines to have the procedure performed by Dr. Jumana Nagarwala. As many as 100 girls may have been victims in this case.
Here's Friedman's reasoning, and a reflection by PJ Media's Patrick Poole on why it looks like an awfully strange Commerce Clause hill for a judge to die on:

 Friedman ruled:
There is nothing commercial or economic about FGM. As despicable as this practice may be, it is essentially a criminal assault just like the rape at issue in Morrison. Nor has the government shown that FGM itself has any effect on interstate commerce or that a market exists for FGM beyond the mothers of the nine victims alleged in the third superseding indictment. There is, in short, no rational basis to conclude that FGM has any effect, to say nothing of a substantial effect, on interstate commerce. The present case cannot be distinguished from Lopez or Morrison. As in those cases, FGM is a crime that could be prosecuted under state law. FGM is not part of a larger market and it has no demonstrated effect on interstate commerce. The Commerce Clause does not permit Congress to regulate a crime of this nature.
While there have been many critics over the years of the use of the Commerce Clause by Congress to expand federal criminal and regulatory powers, this seems an odd situation for the federal judiciary to finally move against that effort.
What impact this ruling might have on similar federal criminal cases, such as kidnapping, is still unknown.
 Among the lessons here is the need for the legislation - in this case, the 1996 federal law banning this barbaric practice - to be airtight.

Exit question: Where does Linda Sarsour come down on this decision?

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