The Criminalization of Female Genital Cutting: Protecting Child Welfare or Limiting Religious Freedo

Female genital cutting (FGC) was criminalized in the United States in 1996, but until 2017, no one was prosecuted. The 2017 case involves Dr. Jumana Nagarwala, a Michigan doctor put on trial for the genital cutting of at least six girls. The individuals are members of a small Indian Muslim sect called Dawoodi Bohra. Several Muslim sects practice FGC, believing it falls in line with the teachings of the prophet Muhammad; however, it is not an explicitly codified Islamic rite. Dr. Nagarwala’s case highlights several legal questions, which present wide legal implications to the fields of religious and family law. First, one must consider the relationship between parental religious freedom and the government's responsibility to protect against child endangerment. Additionally, one must consider to what degree parents should be held liable for their children’s medical treatments. Nagarwala, as well as other relevant case-law precedents, raises the question of whether parents who submit their children to FGC or any other unsafe medical treatments, even if not criminally charged themselves, should lose custody of their children. The current standard is to protect the rights of children over the religious rights of parents. However, the decision in Nagarwala has the potential to shift this norm, changing how cases of similar circumstances are decided in the future.

The question of whether or not FGC is entirely supported by Islamic religious tradition is complicated and nuanced. Though never explicitly mandated in the Quran or the hadith, practitioners of FGC often cite an oral history in which the Prophet Mohammed said to his followers “to circumcise, but not to destroy (the clitoris), for not destroying would be better for the man and would make the woman's face glow.”[1] There is no consensus on FGC within the Muslim faith; some Islamic clerics support the practice while many also oppose it.

Nagarwala is particularly interesting because it is the first case prosecuted under the 1996 federal statute 18 USC § 116 that prohibits FGC.[2] Social challenges, such as getting children to inform officials and addressing difficulties investigating insular communities, are potential reasons why Nagarwala is the first case of its kind.[3] Statute § 116 has a broad scope, forbidding surgery and travel outside of the United States for the FGC procedure. It also explicitly forbids religion or culture from being considered upon enforcement, stating that “no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that person, or any other person, that the operation is required as a matter of custom or ritual.”[4] By forbidding the use of religion as a defense in cases of FGC, §116 actually draws attention to the relevance of religious liberty in these cases. A decision in favor of Nagarwala and the other doctors would thus suggest that the religious or cultural rights of parents should be prioritized over the rights of children.

The Supreme Court has previously upheld the ability of the state to limit free exercise of religion when a child’s welfare is at stake.[5] In Prince v. Massachusetts,[6] the Court ruled that the state had a “wide range of power”[7] to limit parents’ actions, including free exercise of religion, which may harm their children. However, the Court did not establish a justification for state incursion into the parents’ right to exercise their religious beliefs, even if it was potentially harmful to their children.[8]

The question of whether or not to prosecute parents who harm their children because of their religious faith or other cultural beliefs falls mainly within the realm of state law. However, in 1974, the Department of Homeland Security created a regulation, rescinded in 1983, in which states receiving federal funding for child abuse prevention must create exemptions for parents who believe in faith healing.[9] The variety of exemptions resulted in individual states prosecuting faith healing cases in radically divergent ways. In Commonwealth v. Twitchell, the Massachusetts Supreme Court overturned the conviction of a couple sentenced to ten years probation following the death of their six-month-old son.[10] Alternatively, in 2014 the Oregon Supreme Court upheld the conviction of manslaughter for David and Shannon Hickman, whose son died after being born two months premature.[11] That the death was allegedly caused by the Hickmans’ belief in faith healing did not prevent them from being sentenced to time in prison.[12]

Tension in these cases stems from the debate over parents’ abilities to decide what is best for their children. In Parham v. J.R.,[13] the Court pointed out that while the state can protect children’s rights when mental and physical health is at stake, our society places trust in parents, not the government, to decide what is best for their children.[14] The Court wrote that “natural bonds of affection”[15] compel parents to do what is best for their children. This may be why § 116 makes it criminal for doctors to perform FGC, but not for parents to seek it out, unless they take their child outside of the United States.[16]

While only those who perform the procedures can be charged under this statute, parents can still face the threat of losing their children. In the ongoing case, Michigan Child Protective Services has initiated a series of petitions to end the parental rights of several of the parents involved. CPS investigated the welfare of the girls, subjecting them to questioning and medical examinations. Following this investigation, Dr. Fakhruddin Attar, a parent and one of the doctors who performed FGC along with his wife, Farida, were arrested for endangering the welfare of their daughter, and CPS case worker Katie Campbell advocated for removal of the Attar’s daughter from their home.[17] CPS has also filed petitions to remove children from the homes of parents who are not facing criminal charges, alleging that living with their parents places these girls under continued risk.[18] On the other hand, Margaret Raben, a lawyer representing three sets of Michigan parents, said in an email to Vice, "My clients should not lose custody of their children...If they let something be done to their daughters—a fact that has NOT been established yet—they did this out of a profound belief that it was required by their religion."[19] Because FGC is not a codified Islamic rite, but rather a cultural practice with religious justifications, it is unclear whether the court will find the religious defense even credible.

Nargawala is a landmark case because it will establish a legal precedent for what parents can justifiably do to their children in the name of religious freedom. The case will also determine which cultural practices will be protected or deemed unjustifiable. More specifically, the circumstances of the case ask the Court to explicitly define the types of religious beliefs that are protected: those found in liturgy or those akin to FGC, justified by centuries of cultural practice. The central question is whether or not the state should intervene for the sake of the child or to respect parents’ rights to pass their religious and cultural traditions onto their children, with the knowledge that under this scope the Court will be permitting a mutilation procedure that is highly controversial. Will the Court agree with anthropologist Richard Shweder, who has argued that our disgust at FGC comes from misunderstanding of other cultures, an attitude toward the Global South shaped by colonialism, and a moral gut reaction?[20] Or will the Court deem, as was the case for the Hickman’s in Oregon, that some actions done in the name of parental faith have far too grievous consequences and must be prohibited? Whatever the choice, the Court’s decision will have an influential impact on the argument for religious liberty in cases similar to Nargawala and which agent should be privileged in cases involving FGC: the parent, the child, or the state.

[1] Althaus, Frances A. “Female Circumcision: Rite of Passage Or Violation of Rights?” International Perspectives on Sexual and Reproductive Health, vol. 23, no. 3, 2 Sept. 1997, pp. 130–134.

[2] 18 USC § 116 1996. Legal Information Institute. Web. Accessed April 10, 2018. https://www.law.cornell.edu/uscode/text/18/116.

[3] Hannah Summers. “‘Those involved in FGM will find ways to evade UK law’.” The Guardian. March 7, 2018. Accessed April 10, 2018. https://www.theguardian.com/society/2018/mar/07/reported-cases-fgm-rise-sharply-uk-no-court-convictions.

[4] 18 USC § 116 1996.

[5] Lederman, Anne D. “Understanding Faith: When Religious Parents Decline Conventional Medical Treatment for Their Children,” Case Western Law Review 45, no. 3 (1995): 895.

[6] Prince v. Massachusetts 321 US 158 (1944).

[7] Prince at 167.

[8] Id., 171.

[9] Liu, Joseph.“Faith Healing and the Law." Pew Research Center's Religion & Public Life Project. August 31, 2009. Accessed April 01, 2018. http://www.pewforum.org/2009/08/31/faith-healing-and-the-law/.

[10] Abraham, Henry J. “Abraham, Isaac, and the State: Faith-Healing and Legal Intervention,” University of Richmond Law Review 27, no. 5 (1993): 981.

[11] Bever, Lindsey. "Faith-healing Parents Convicted in Newborn's Death Lose Appeal to Top Court." The Washington Post. October 15, 2015. Accessed April 01, 2018.

[12] Bever.

[13] Parham v. J.R. 442 US 584 (1979).

[14] 18 USC § 116 punished “whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.” Parents are only prosecutable if they transport their children outside of the United States for the procedure.

[15] Parham at 603-604.

[16] Id., 602.

[17] Martindale, Mike. “Bid to end parental rights advances in mutilation case.” Detroit News. May 16, 2017. Accessed April 4, 2018. https://www.detroitnews.com/story/news/local/oakland-county/2017/05/16/female-genital-mutilation-custody-hearing/101767636/.

[18] Richert, Catharine. “Child Protection Petitions Filed for 2 Minn. Girls Subjected to Genital Mutilation.” Minnesota Public Radio News. April 14, 2017. Accessed April 4, 2018. www.mprnews.org/story/2017/04/14/hennepin-co-files-child-protection-petition-in-genital-mutilation-case-.

[19] Ahmend, Beenish. “The Female Genital Mutilation Scandal Tearing a Community Apart.” Vice News. May 16, 2017. Accessed April 4, 2018. https://www.vice.com/en_us/article/785dx4/the-female-genital-mutilation-scandal-tearing-a-community-apart.

[20] Shweder, Richard A.“What About Female Genital Mutilation,” in Why Do Men Barbecue: Recipes For Cultural Psychology, ed. Richard Shweder (Cambridge: Harvard University Press, 2003).