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Floor Speech

Date: Dec. 15, 2020
Location: Washington, DC

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Mrs. BLACKBURN. Mr. President, I am pleased that we've finally agreed on language to enhance penalties for female genital mutilation, or FGM, a truly horrible practice. I thank my colleagues in the House who worked with me on this issue.

More than 200 million women and girls alive today in 30 countries in Africa, the Middle East, Asia, and the United States have fallen victim to this monstrous practice. Researchers estimate more than 500,000 women and girls in the U.S. have experienced or are at risk of falling victim to FGM.

I introduced legislation on this subject earlier this year, and, although the final language adopted by the House in H.R. 6100 doesn't include the protections I championed in a legally precise manner, it will send a strong message that Congress condemns the violent and disgusting butchery of young girls and women in this country.

Federal law bans the practice of FGM. However, in 2018, a district judge in Michigan found unconstitutional under Commerce Clause grounds the Federal statute banning FGM. Rather than appeal, the Department of Justice's Solicitor General wrote a letter asking Congress to amend the law to address the constitutional problem.

The bill I introduced in response to this request, S. 2017, the Federal Prohibition of Female Genital Mutilation Act of 2019, fixes the constitutional defects by adding specific commerce clause-focused language to the current law. It is a straightforward change that would make the existing statute consistent with Supreme Court precedent.

The House version of my bill will go a long way in protecting women and girls from FGM, but I remain convinced Congress can and should go even further to prevent this barbarity. Because H.R. 6100 only criminalizes FGM acts committed for nonmedical reasons, it creates a loophole in the form of a medical benefits defense. Criminal defendants could leverage this defense against their victims by claiming they performed FGM to prevent infections, inflammation, or sexually transmitted diseases, all common excuses in countries where FGM is widespread. Unlike the old law, the burden is now on the government to prove the act was not done for medical reasons. Previously, it was the defendant's burden to prove the act was not medically necessary, per 18 U.S.C. 116(b).

While medical issues are commonly contested in FGM cases, the addition of a new element for the government to prove as part of its case-in-chief makes it tougher to prosecute perpetrators.

Furthermore, section 5 of H.R. 6100 declares that the Michigan district court decision on interstate commerce is erroneous. That language squarely conflicts with the Solicitor General's letter to Congress, which asserts the exact opposite.

A fix-it law should make a defective law better, not introduce new problems or make it easier for defendants to escape accountability. I am disappointed that these concerns were not addressed early on in the legislative drafting process, but I am also optimistic that we will resolve them in a future Congress. Department of Justice, Office of the Solicitor General, Washington, DC, April 10, 2019.

Re United States v. Jumana Nagarwala et al., No. 17-cr-20274 (E.D. Mich. Nov. 20, 2018)

Hon. Dianne Feinstein,

Ranking Member, Committee on the Judiciary,

U.S. Senate, Washington, DC.

Dear Senator Feinstein: Consistent with 28 U.S.C. 530D, I write to call your attention to the above-referenced decision of the United States District Court for the Eastern District of Michigan. A copy of the decision is attached.

This case is the first federal prosecution under 18 U.S.C. 116(a), which prohibits female genital mutilation (FGM). Section 116(a) makes it a criminal offense to ``knowingly circumcise[ ], excise[ ], or infibulate[ ] 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.'' Ibid. The district court dismissed the FGM charges, holding that Section 116(a) is beyond Congress's power. First, the court concluded that Section 116(a) is not necessary and proper to effectuate an international treaty under Missouri v. Holland, 252 U.S. 416 (1920). The court rejected the government's argument that the provision was rationally related to implementing the United States' obligations under the International Covenant on Civil and Political Rights (ICCPR), done, Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368. Second, the court relied on United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), to hold that Section 116(a) was beyond Congress's power under the Commerce Clause. The court found that FGM was not an economic activity but was instead a form of physical assault, and that the statute adding Section 116(a) to the U.S. Code was unaccompanied by detailed, record-based findings from which a court could determine that FGM substantially affects interstate commerce. The court further emphasized that, unlike many federal criminal statutes, Section 116(a) does not include any jurisdictional elements, such as a requirement that the charged offense have an explicit connection with, or effect on, interstate commerce.

Section 116(a) targets an especially heinous practice-- permanently mutilating young girls--that should be universally condemned. FGM is a form of gender-based violence and child abuse that harms victims not only when they are girls, suffering the immediate trauma of the act, but also throughout their lives as women, when it often results in a range of physical and psychological harms. See Act of Sept. 30, 1996, Pub. L. 104-208, Div. C., Tit. VI, Sec. 644(a), 110 Stat. 3009-708 (18 U.S.C. 116 note). The Centers for Disease Control and Prevention estimates that half a million women and girls in the United States have already suffered FGM or are at risk for being subjected to FGM in the future. See Howard Goldberg et al., Centers for Disease Control and Prevention, Female Genital Mutilation/Cutting in the United States, 131 Public Health Reports 340 (2016). The Department therefore condemns this practice in the strongest possible terms.

That said, the Department has reluctantly determined that-- particularly in light of the Supreme Court's decision in Morrison, which was decided after Section 116(a)'s enactment--it lacks a reasonable defense of the provision, as currently worded, and will not pursue an appeal of the district court's decision. Instead, we urge that Congress act forthwith to address the constitutional problem, by promptly enacting the attached legislative proposal, which, in our view, would clearly establish Congress's authority to criminalize FGM of minors and ensure that this practice is prohibited by federal law.

First, the Department has determined that it lacks an adequate argument that Section 116(a), as it is currently written, is necessary and proper to the regulation of interstate commerce. Pursuant to the Commerce Clause, Congress can regulate and protect the channels of interstate commerce, the instrumentalities of interstate commerce, and activities that ``substantially affect interstate commerce.'' Gonzales v. Raich, 545 U.S. 1, 17 (2005). Unlike many federal criminal statutes, however, Section 116(a) does not require proof of any nexus between the conduct at issue (performing FGM on minors) and interstate commerce--the critical defect found by the Supreme Court in Morrison and Lopez. Furthermore, although FGM can be performed in circumstances with commercial characteristics, FGM itself does not appear to be inherently an economic activity, and when performed purely locally, FGM does not appear to be ``part of an economic `class of activities' that have a substantial effect on interstate commerce.'' Ibid.

Second, the Department has determined that it does not have an adequate argument that Section 116(a) is within Congress's authority to enact legislation to implement the ICCPR, which does not address FGM. None of the ICCPR's provisions references FGM at all. Nor do they provide a basis for the federal government itself (rather than the individual States) to criminalize FGM of minors by private parties. This case is therefore not analogous to Holland, which involved a treaty that more directly addressed the parties' obligation to protect certain migratory birds and to propose legislation to do so. See 252 U.S. at 431. Thus, even maintaining the full continuing validity of Holland, the Department does not believe it can defend Section 116(a) on this ground.

Although the Department has determined not to appeal the district court's decision, it recognizes the severity of the charged conduct, its lifelong impact on victims, and the importance of a federal prohibition on FGM committed on minors. Accordingly, the Department urges Congress to amend Section 116(a) to address the constitutional issue that formed the basis of the district court's opinion in this case. Specifically, concurrently with submitting this letter, the Department is submitting to Congress a legislative proposal that would amend Section 116(a) to provide that FGM is a federal crime when (1) the defendant or victim travels in or uses a channel or instrumentality of interstate or foreign commerce in furtherance of the FGM; (2) the defendant uses a means, channel, facility, or instrumentality of interstate commerce in connection with the FGM; (3) a payment is made in or affecting interstate or foreign commerce in furtherance of the FGM; (4) an offer or other communication is made in or affecting interstate or foreign commerce in furtherance of the FGM; (5) the conduct occurs within the United States' special maritime and territorial jurisdiction, or within the District of Columbia or a U.S. territory; or (6) the FGM otherwise occurs in or affects interstate or foreign commerce. In our view, adding these provisions would ensure that, in every prosecution under the statute, there is a nexus to interstate commerce.

Please let me know if we can be of further assistance in this matter. Sincerely, Noel J. Francisco, Solicitor General

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