Secrecy surrounding female genital mutilation hinders prosecution
Prosecutors say the case against Dr. Jumana Nagarwala is the first of its kind under a federal law – even though that law is more than 20 years old.
Congress passed the law against female genital mutilation in 1996. The law makes it a crime to cut or to remove or suture all or part of the clitoris or labia of someone under 18 years old. In 2013, the law was amended to also criminalize taking a girl out of the U.S. for an FGM procedure, a practice frequently referred to as "vacation cutting."
According to Peter Henning, professor of criminal law at Wayne State University and a former prosecutor, the 1996 law was a response to a push by the United Nations that countries ought to outlaw the practice of FGM.
"So the United States did. But then the Department of Justice didn't really pay any attention to it. Didn't put resources into it," said Henning. "I expect we viewed this more as something seen in foreign lands and not something that would really take place much in the United States."
There have been a few prosecutions at the state level. But Henning said FGM prosecutions are very rare because it's difficult to find cases, and even harder to prove them.
"This shouldn't occur. This is violence. But I also can see how much parents can be nurturing and great in other ways. So I feel complicated in that way."
A big barrier is the secrecy surrounding the practice.
"You're told not to speak about it. You're brought up with this idea that it's a private matter, " said Mariya Taher, a 34-year-old American-born activist working to bring an end to FGM. "There's sort of this desire to not even acknowledge it."
Taher said it happened to her on a family vacation to India when she was seven years old.
"You're not really told what's going to happen to you, or if you are told, it's said in a way that is normalized. So you kind of feel that everybody gets it done, and it's maybe not a big deal," Taher said. "And for me personally, I didn't think anything about it. I thought it was something that was celebrated."
Taher said years later she was reading about FGM and connected it to what happened to her.
"When you're learning about it in this outside context and then kind of making the connections with your own experience is when you start to realize like, 'Wow, that was wrong. That was violence. I shouldn't have experienced that,'" said Taher.
FGM cases stay below the radar of prosecutors because people are afraid to come forward, according to both Taher and Henning.
Taher said people don't want to get loved ones or friends in trouble.
"They don't want to send them to jail," said Taher. "They don't want to see families torn apart.
"I think about my own family, and I had a great childhood. And I think people are very quick to judge a person's overall character because this (FGM) is done," said Taher. "I definitely think this is wrong. This shouldn't occur. This is violence. But I also can see how much parents can be nurturing and great in other ways. So I feel complicated in that way."
Taher says members of some communities may fear ostracism if they don't follow the custom, much less report it.
Henning said because the practice is shrouded in secrecy, it is hard to get the necessary evidence of what the person who performed the procedure actually did.
"As a prosecutor, I have to prove the procedure caused whatever it is that is identified as the mutilation. That may not be easy to prove," said Henning.
Henning thinks it's unlikely that parents will be prosecuted in FGM cases because the parents may be needed to testify about what was done to the child and who did it.
Anti-FGM advocates say the law criminalizing FGM makes a powerful statement that it's a harmful practice and a form of child abuse and violence against women.
"People are talking about it. People are getting more comfortable talking about it. And that's something that you need when you are trying to make change happen."
But many say prosecution, by itself, will not end the practice. For that goal to be reached, a holistic approach that includes support, prevention and education is needed.
Taher said prosecution may serve as a deterrent for some. But it could also drive the practice further underground.
Taher said that one of the most important effects of the Detroit-area prosecution is that it has sparked conversations in practicing communities about a previously hidden subject, and she is hopeful this will lead to members of the community starting to question the practice.
"People are talking about it. People are getting more comfortable talking about it," said Taher. "And that's something that you need when you are trying to make change happen."
Henning said he anticipates that part of the change could be greater awareness about the harms of FGM and more prosecutions.
Shortly after charges were filed against Dr. Nagarwala, legislation was introduced in the Michigan legislature to criminalize FGM in the state with tougher penalties than under federal law.