DETROIT - Two doctors charged in the historic genital cutting case want a judge to dismiss the most serious charge that could send them to prison for life: transporting minors with the intent to engage in sexual activity.
Sex has nothing to do with the procedure and to suggest that it does is nonsensical and outlandish, the defense claims. Moreover, it believes the government is manipulating a federal law just just to get a life sentence thrown in the case, which, it maintains, is about a religious procedure involving purity and spiritual cleanliness — not sex.
“The sexual-intent part is just a major, wrong stretch,” attorney Shannon Smith said late Wednesday, after filing a 40-page document that delved into the definition of “sexual act.”
Smith is representing Dr. Jumana Nagarwala, the lead defendant in the case who is accused of cutting the genitals of at least six minor girls as part of a religious ritual practiced by her religious community. She is charged alongside Dr. Fakhruddin Attar, who is accused of letting Nagarwala use his Livonia clinic for more than a decade to perform the procedure.
The government has estimated that Nagarwala had as many as 100 victims, and that she tried to cover up her crime when she was caught and instructed others in her religious community to “deny everything” if questioned about the procedures.
Nagarwala, who has maintained she never harmed any child, faces up to life in prison if convicted of transporting a minor to engage in sexual activity.
The government has argued that the law applies in this case, alleging one purpose of female genital mutilation is to curb the sexuality of girls and women by making sex painful. Therefore, it contends, the doctors who performed and condoned the procedure “acted with the intent to abuse, humiliate, harass, and/or degrade minor children.”
The government concedes that it has never claimed that the genital mutilation procedures were performed for the purpose of obtaining sexual gratification.
As an FBI agent noted in his affidavit: “The government does not, and cannot, contend that Dr. Nagarwala and Dr. Attar’s conduct was for the purpose of obtaining sexual gratification.”
Rather, the government has argued, the defendants participated in a “sexual act” that humiliated and harmed children.
The defense called the claim “baseless” and “groundless” and have asked the court to throw out the charge.
“This court should not condone the government’s unconstitutional attempt to shape (federal law) to fit a litigation strategy,” defense lawyers wrote in Wednesday’s filing.
If the transporting-a-minor charge is dismissed, the stiffest penalty Nagarwala and Attar face is 20 years, if convicted of obstructing justice. The genital mutilation charge carries a maximum five year sentence.
The doctors are two of eight defendants charged in the case. All are members of a small Indian Muslim sect known as the Dawoodi Bohra, which has a mosque in Farmington Hills. The other defendants include four mothers accused of subjecting their daughters to the procedure, and Dr. Attar’s wife, who is accused of holding the girls’ hands during the procedures and lying to investigators about the procedures.
Detroit Free Press