What’s the Story with the First U.S. Court Case on Female Genital Mutilation/Cutting?
United States v. Nagarwala should have marked the beginning of the end for female genital mutilation/cutting (FGM/C) in the United States. Instead, after two contentious years in court, the case unraveled when a federal judge dismissed most of the charges against the defendants. In his 28-page ruling, District Judge Bernard A. Friedman ruled that Congress had exceeded its authority when it criminalized FGM/C. In April 2019, the Department of Justice “reluctantly determined” that it would not appeal the decision and instead urged Congress to amend the statute in question.
During and even before the trial, the defense team presented a narrative about religious freedom and tradition that was difficult to counter with medical facts. The effectiveness of this strategy is an example of what social psychologist Jonathan Haidt explains in his research. Humans make moral judgments first and then they use reason to justify their intuitive decisions. As a result, the mind is not primarily a logic processor; it is a story processor. A closer examination of the defense’s narrative provides vital lessons for future FGM/C litigation and for those who wish to ban the practice altogether.
FGM/C involves the permanent mutilation of young girls’ bodies. The World Health Organization (WHO) classifies FGM/C as a form of gender-based violence and abuse. The practice is intended to curtail a woman’s sexual pleasure by damaging or removing her clitoris. In most cases cutting is performed before girls reach puberty. Traditional cutters, who are almost always women, use glass, knives, scissors or blades that are unlikely to be sterilized. The procedure itself ranges from scraping the clitoris to infibulation – excising the labia and the clitoris in its entirety, then sewing together the edges of the vulva. In some cases, girls’ legs are then bound together from 10 to 40 days so the cuts can “heal” closed. The remaining pencil-width opening channels both menstruation and urination, and must be torn open and remain exposed to allow for intercourse. The immediate trauma of genital cutting often reverberates throughout a victim’s lifetime with a range of physical and psychological problems.
Over 200 million women have undergone FGM/C worldwide, and an estimated 513,000 girls are at risk of FGM/C each year in the United States. Medically, and as a matter of international human rights law, FGM/C is widely and strongly condemned. The World Health Organization, the United Nations, and the Centers for Disease Control are among the governing bodies and organizations that oppose FGM/C. Until 2017, however, no case had ever been brought to court in the United States.
The Nagarwala case began in the Detroit, Michigan area, where Dr. Jumana Nagarwala, an emergency room doctor and graduate of The Johns Hopkins University School of Medicine, allegedly cut as many as 100 girls over the course of 12 years. Nagarwala and the girls belong to the Dawoodi Bohra – a prosperous Indian Shiite Muslim sect, some of whose members refer to the clitoris as haraam ni boti, or the sinful lump of flesh. The Bohra view FGM/C as a religious observance that prevents girls from becoming promiscuous.
When prosecutors first brought the Bohra case to court, Michigan did not yet have a state law prohibiting FGM/C. Thus, prosecutors relied on a 1996 federal statute which criminalizes FGM/C. Initially, the case against Dr. Nagarwala seemed strong, in part, because of testimony about the altered clitorises of two seven-year-old girls, one of whose pain was so severe that “she could barely walk.”
Facing a difficult set of facts and evidence against her, Nagarwala’s defense team crafted a counter-narrative portraying her not as someone who performed FGM/C but as a participant in an ancient and medically harmless religious practice. Alongside mothers and matriarchs who were continuing a traditional religious rite of passage, the defense explained, Nagarwala was merely scraping the genitals to perform a symbolic, ritual nick.
Meanwhile, the Bohra community’s charitable arm, Dawat-e-Hadiyah, retained the services of the renowned retired Harvard law professor, Alan Dershowitz. In a letter to the editor of The Wall Street Journal, Dershowitz stated: “I am consulting with the religious group in an effort to strike the proper constitutional balance between religious freedom and the rights of children [….]” Dershowitz added that he “categorically” opposed FGM/C, and was instead advocating for “a benign, sterilized, symbolic pinprick in the hood covering the clitoris, which is much like the foreskin of the penis.” (Dershowitz wrote the letter in response to an op-ed I wrote for The Wall Street Journal highlighting his participation in the case.) The inference, therefore, is that if male circumcision is protected by religious freedom then this form of FGM/C should also be protected.
Dershowitz’ legal strategy may have been brilliant, but existing evidence does not support his claims about the benign nature of this practice. Medicine has lagged egregiously behind in studying the clitoris. Research about this organ has “largely been defined by social factors” among scientists who have “avoided it,” writes Naomi Russo in The Atlantic. Not until 2017 did a French engineer working on biomedical and gender issues create the first life-size model of the clitoris. Readers may be surprised to learn that it includes more than the pea-sized “glans” – the organ’s full structure is ten centimeters long and is roughly the size of one’s palm. Although the clitoris is central to women’s sexual pleasure, pleasure may not be its only function. Research is underway, for example, investigating the clitoris’ possible role in women’s immune systems.
The origins of FGM/C are unknown. Herodotus documented the practice 500 years before the birth of Christ. Therefore, the procedure precedes both Islam and Christianity. Many religious groups – including Jews, Muslims, and Christians – have practiced FGM/C at some point in time. After the Nagarwala case surfaced, for example, a woman in Kentucky stated that her strict Evangelical parents had cut her when she was five years old, in the 1980s.
Even if those who practice FGM/C sincerely believe it is religiously justified, neither domestic nor international religious freedom jurisprudence protects harmful procedures carried out on minor children. Nonetheless, medical facts and the rights of girls have been sidelined by a narrative about the supposed religious rights of communities. The Dawoodi Bohra, like many of the other groups that practice FGM/C, sacralize sexual purity and portray women’s sexual organs as “unclean” – thereby creating an idiosyncratic moral matrix that uses religious beliefs to justify harming girls. This logic reflects Haidt’s conclusion that “morality binds and blinds.” Humans often develop sacred values first, and then develop post hoc arguments to support them. This makes communities like the Bohra and many others blind to medical facts and moral arguments that don’t support their predetermined beliefs.
Haidt’s theories may also explain why efforts to reduce the incidence of FGM/C show mixed results and generate cognitive dissonance among religious practitioners. For instance, in a 2013 study published in Obstetrics and Gynecology International about the efficiency of methods to reduce the incidence of FGM/C, scientists found that, in some surveys, women expressed a negative attitude toward the tradition of FGM/C but still intended to subject their daughters to the practice. Researchers concluded that one reason for this contradiction was social pressure.
If this harmful practice is to be ended, the strategy must win in courts of law as well as the court of public opinion. The U.S. government must establish strong interagency support for zero-tolerance of FGM/C in the United States. Congress should amend its 1996 federal statute, closing the loophole for states that have yet to criminalize FGM/C. Prosecutors must enforce existing state and federal laws, including the 2013 amendment criminalizing taking girls abroad for so-called “vacation cutting.” As Equality Now states, “Ending FGM requires a multi-sectoral approach that brings together law enforcement, child protection professionals, physicians, religious leaders, government agencies, advocates, and survivors.” No less importantly, advocates must acknowledge the powerful legal and religious narratives that are used to justify FGM/C, and develop trusted interlocutors among the religious communities that practice FGM/C to communicate a compelling counter-narrative that protects all girls from harm.
Kristina Arriaga is a Commissioner on the United States Commission on International Religious Freedom (USCIRF). The views expressed in this article reflect the opinions of the author. The USCIRF does not take an official position on FGM/C.