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Detroit – Federal prosecutors were weighing Monday whether to appeal a judge’s order that dismissed the most serious count against two doctors in the nation’s first female genital mutilation case, a sex charge punishable by up to life in federal prison.

The move by U.S. District Judge Bernard Friedman on Sunday granted a defense motion to dismiss a conspiracy charge alleging Dr. Jumana Nagarwala and Dr. Fakhruddin Attar transported minors to Metro Detroit with the intent to engage in criminal sexual activity. While female genital mutilation is a federal crime, the allegations do not constitute criminal sexual activity, the judge said.

The move was a victory for the defense teams but leaves in place several other charges, including a conspiracy charge that could send the doctors to prison for 20 years. A trial is set for January 2019.

“We respect the opinion of the court and are reviewing our options for a potential appeal,” U.S. Attorney’s Office spokeswoman Gina Balaya said. “Moreover, we stand ready to proceed with the remaining charges against the defendants.”

Any appeal would be filed with the 6th U.S. Circuit Court of Appeals in Cincinnati.

The doctors are accused of mutilating the genitalia of 7-year-old Minnesota girls whose mothers brought them to Metro Detroit last year. Prosecutors say they were cut by Nagarwala in February at Attar’s clinic in Livonia.

Eight people have been charged, all members of a Muslim sect, the Dawoodi Bohra, based in India. Locally, most members of the sect belong to the Anjuman-e-Najmi mosque in Farmington Hills.

Defense attorneys argued that the government was “impermissibly using the definition of ‘criminal sexual conduct’ under state law and ‘sexual act’ from another federal statute to characterize their actions in committing, or conspiring to commit, (female genital mutilation) as ‘criminal sexual activity.’”

The 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, the defense had argued.

“We’re thrilled for our clients that the law was followed,” Attar’s lawyer, Mary Chartier, said Sunday. “This is going to be a long fight, but we’re confident they’ll be vindicated.”

Nagarwala 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.

Prosecutors say the girls were cut but defense lawyers say the procedure performed on them was benign and not female genital mutilation. They accuse the government of overreaching.

One girl told the FBI that Nagarwala “pinched” her on the “place (where) she goes pee” and a subsequent medical examination showed the girl’s genitals did not appear normal and a section had been altered or removed, according to a court filing. A doctor also observed scar tissue and small healing lacerations.

In ruling to dismiss the count, Friedman wrote: “To prove their guilt on this charge, the government must show that defendants transported a minor ‘with intent that (the minor) engage in ... any sexual activity for which any person can be charged with a criminal offense.’ ... The facts alleged in the indictment do not support this charge because, as a matter of law, FGM, while a prohibited criminal act, is not ‘criminal sexual activity.’”

No definition of “sexual activity” is provided in the law underpinning the count, Friedman wrote. It provides “a precise definition of ‘illicit sexual conduct’ but does not define (or even mention) the phrase ‘sexual activity,’” he said.

The government argued that while the law does not define sexual activity, the count should stand “because the cutting and penetration alleged in the indictment constitute violations of Michigan’s criminal sexual conduct statute.”

rsnell@detroitnews.com

(313) 222-2486

Twitter: @robertsnellnews

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