The federal female genital mutilation statute has ** commerce-clause jurisdictional hook (Updated)

October 19th, 2015

A regular-reader emailed me to note that 18 U.S.C. § 116, which criminalizes female genital mutilation, has no jurisdictional hook concerning interstate commerce, or any other enumerated power.

(a) Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates 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 shall be fined under this title or imprisoned not more than 5 years, or both.
(b) A surgical operation is not a violation of this section if the operation is—
(1) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or
(2) performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.
(c) In applying subsection (b)(1), no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that person, or any other person, that the operation is required as a matter of custom or ritual.
(d) Whoever knowingly transports from the United States and its territories a person in foreign commerce for the purpose of conduct with regard to that person that would be a violation of subsection (a) if the conduct occurred within the United States, or attempts to do so, shall be fined under this title or imprisoned not more than 5 years, or both.

A prosecution under this statute would be unconstitutional under United States v. Lopez. Genital mutilation by itself, like gun possession, is not an economic activity. Absent a jurisdictional hook–show a substantial effect on interstate commerce, Congress has no authority over the inherently intrastate act. This statute was enacted in 1996–the year after Lopez–and amended in 2013. Further, the fact that section (d), concerning the transportation of someone involved with genital mutilation has a the jurisdictional hook, but section (a) does not, suggests Congress knows the difference.

Helpful note to any defense lawyers who are involved with such a case.

Contrast this law with the federal partial birth abortion statute (18 U.S.C. § 1531), which does include the jurisdictional hook.

Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself

Update: On Twitter, Jay Wolman writes in to note that the jurisdictional hook is in a different section, 18 U.S.C 116 note. Yes, you remember the notes, don’t you. It is justified based on Section 5 of the 14th Amendment and the Treaty Clause:


    (a) <<NOTE: 18 USC 116 note.>>  Findings.--The Congress finds that--
            (1) the practice of female genital mutilation is carried out 
        by members of certain cultural and religious groups within the 
        United States;
            (2) the practice of female genital mutilation often results 
        in the occurrence of physical and psychological health effects 
        that harm the women involved;
            (3) such mutilation infringes upon the guarantees of rights 
        secured by Federal and State law, both statutory and 
            (4) the unique circumstances surrounding the practice of 
        female genital mutilation place it beyond the ability of any 
        single State or local jurisdiction to control;
            (5) the practice of female genital mutilation can be 
        prohibited without abridging the exercise of any rights 

[[Page 110 STAT. 3009-709]]

        under the first amendment to the Constitution or under any other 
        law; and
            (6) Congress has the affirmative power under section 8 of 
        article I, the necessary and proper clause, section 5 of the 
        fourteenth Amendment, as well as under the treaty clause, to the 
        Constitution to enact such legislation.