The lead defendants in the nation’s first female genital mutilation case moved late Wednesday to dismiss the most serious count against them, a sex charge punishable by up to life in federal prison.
Dr. Jumana Nagarwala and Dr. Fakhruddin Attar want U.S. District Judge Bernard Friedman to dismiss a conspiracy charge alleging they transported minors to Metro Detroit with the intent to engage in criminal sexual activity, according to a court filing.
The pair’s alleged conduct does not qualify as sexual activity because the doctors did not intentionally touch the girls’ genitalia for gratification or to abuse, humiliate or degrade anyone, their lawyers argued. The criminal charge also is unconstitutionally vague, they added.
“The government does not, and cannot, contend that Dr. Nagarwala and Dr. Attar’s conduct was for the purpose of obtaining sexual gratification,” Nagarwala’s lawyer Shannon Smith and Attar’s attorney Mary Chartier wrote.
The doctors are accused of mutilating the genitalia of 7-year-old Minnesota girls whose mothers brought themto Metro Detroit. Prosecutors say they were cut by Nagarwala in February at Attar’s clinic in Livonia.
The Minnesota moms, Haseena Halfal, 34, of Plymouth, Minnesota, and Zainab Hariyanawala, 31, were arraigned Thursday in federal court in Detroit.
The mothers are charged with female genital mutilation and conspiracy to commit female genital mutilation. Both stood mute and U.S. Magistrate Judge Elizabeth Stafford entered not guilty pleas on their behalf.
They were released on $10,000 unsecured bond and ordered not to have any contact with victims or witnesses aside from relatives.
Prosecutors lost a request to have the Minnesota moms wear GPS tethers. Hariyanawala has incentive to flee since the indictment was filed, Assistant U.S. Attorney Sara Woodward said.
Hariyanawala is a stay-at-home mom who moved to the U.S. in 2015, defense lawyer Patricia Maceroni said, noting that Hariyanawala voluntarily surrendered.
Hariyanawala also has surrendered her Indian passport.
Eight people have been charged in the case. Nagarwala, who was ordered to be released on bond Tuesday, and the others are accused of participating in a conspiracy to cut prepubescent girls as part of a religious procedure practiced by some members of the Dawoodi Bohra.
Locally, most members of the sect belong to the Anjuman-e-Najmi mosque in Farmington Hills.
The procedure happened even though the FBI had installed a hidden camera outside the clinicbefore the girls arrived. There is no indication in court records that investigators were watching the surveillance footage in real time, were aware of its significance initially or knew about the alleged surgeries beforehand.
Prosecutors estimate up to 100 girls were cut during the 12-year conspiracy. So far, the indictment references six victims.
Prosecutors say the girls were cut but defense lawyers say the procedure performed on the girls was benign and not female genital mutilation. They accuse the government of overreaching.
Attar, 53, of Farmington Hills, has been indicted along with his wife, Dr. Farida Attar, 51, who is accused of helping arrange the procedure and being in the examination room while it was performed.
The couple was arrested earlier this year and accused of committing female genital mutilation, trying to cover up the crime and conspiring with Nagarwala to cut girls.