Title: Strengthening the Opposition to Female Genital Mutilation Act of 2020
Policy area: Crime and Law Enforcement

Summary:
Strengthening the Opposition to Female Genital Mutilation Act of 2020 or the STOP FGM Act of 2020
This bill revises the federal criminal statute that prohibits certain conduct often referred to as female genital mutilation (FGM).
Currently, the FGM statute prohibits performing certain procedures—circumcising, excising, or infibulating the female genitalia of a minor—for nonmedical purposes. However, it does not define FGM.
In 2018 a federal district court invalidated the FGM statute in United States vs. Nagarwala. The court found, among other things, that the statute exceeds Congress's authority under the Commerce Clause of the Constitution because it (1) lacks detailed, record-based findings regarding how FGM substantially affects interstate commerce; and (2) lacks jurisdictional elements (e.g., requirements that charged offenses have an explicit connection with, or effect on, interstate commerce). In 2019, the Department of Justice (DOJ) decided not to appeal the decision.
This bill creates a statutory definition of female genital mutilation and provides explicit findings regarding the effects of FGM on interstate commerce.
The bill broadens the scope of prohibited FGM-related conduct on a minor to include
It expressly requires prohibited FGM-related conduct to have a connection to interstate or foreign commerce.
The bill increases from 5 to 10 years the statutory maximum prison term for an FGM offense. It also prohibits a federal criminal defendant from asserting, as a defense, that FGM is required as a matter of religion, custom, tradition, ritual, or standard practice.
DOJ, in consultation with various federal agencies, must report annually on FGM, including the estimated number of women and girls at risk of or subjected to FGM and actions taken by government agencies to combat the practice.
Finally, the bill expresses the sense of Congress that the court erred in invalidating the existing statute. It expresses, among other sentiments, that Congress elects to amend the statute to clarify the commercial nature of FGM, but that Congress does not ratify the interpretation of the federal district court in Nagarwala.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6100 Introduced in House (IH)]

<DOC>






116th CONGRESS
  2d Session
                                H. R. 6100

 To amend title 18, United States Code, to clarify the criminalization 
         of female genital mutilation, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 5, 2020

 Ms. Jackson Lee (for herself and Mr. Bacon) introduced the following 
       bill; which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend title 18, United States Code, to clarify the criminalization 
         of female genital mutilation, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Strengthening the Opposition to 
Female Genital Mutilation Act of 2020'' or the ``STOP FGM Act of 
2020''.

SEC. 2. CONGRESSIONAL FINDINGS AND PURPOSE.

    The Congress finds the following:
            (1) Female genital mutilation is recognized internationally 
        as a human rights violation and a form of child abuse, gender 
        discrimination, and violence against women and girls. Female 
        genital mutilation is a global problem whose eradication 
        requires international cooperation and enforcement at the 
        national level. The United States should demonstrate its 
        commitment to the rights of women and girls by leading the way 
        in the international community in banning this abhorrent 
        practice.
            (2) Congress has previously prohibited the commission of 
        female genital mutilation on minors. Female genital mutilation 
        is a heinous practice that often inflicts excruciating pain on 
        its victims and causes them to suffer grave physical and 
        psychological harm.
            (3) Congress has the power under article I, section 8 of 
        the Constitution to make all laws which shall be necessary and 
        proper for carrying into execution treaties entered into by the 
        United States.
            (4) Congress also has the power under the Commerce Clause 
        to prohibit female genital mutilation. An international market 
        for the practice exists, and persons who perform female genital 
        mutilation in other countries typically earn a living from 
        doing so.
            (5) Those who perform this conduct often rely on a 
        connection to interstate or foreign commerce, such as 
        interstate or foreign travel, the transmission or receipt of 
        communications in interstate or foreign commerce, the use of 
        instruments traded in interstate or foreign commerce, or 
        payments of any kind in furtherance of this conduct.
            (6) Amending the statute to specify a link to interstate or 
        foreign commerce would confirm that Congress has the 
        affirmative power to prohibit this conduct.

SEC. 3. AMENDMENTS TO CURRENT LAW ON FEMALE GENITAL MUTILATION.

    Section 116 of title 18, United States Code, is amended--
            (1) by amending subsection (a) to read as follows:
    ``(a) Except as provided in subsection (b), whoever, in any 
circumstance described in subsection (d), knowingly--
            ``(1) performs, attempts to perform, or conspires to 
        perform female genital mutilation on another person who has not 
        attained the age of 18 years;
            ``(2) being the parent, guardian, or caretaker of a person 
        who has not attained the age of 18 years facilitates or 
        consents to the female genital mutilation of such person; or
            ``(3) transports a person who has not attained the age of 
        18 years for the purpose of the performance of female genital 
        mutilation on such person,
shall be fined under this title, imprisoned not more than 10 years, or 
both.'';
            (2) by amending subsection (c) to read as follows:
    ``(c) It shall not be a defense to a prosecution under this section 
that female genital mutilation is required as a matter of religion, 
custom, tradition, ritual, or standard practice.'';
            (3) by striking subsection (d); and
            (4) by adding at the end the following:
    ``(d) For the purposes of subsection (a), the circumstances 
described in this subsection are that--
            ``(1) the defendant or victim traveled in interstate or 
        foreign commerce, or traveled using a means, channel, facility, 
        or instrumentality of interstate or foreign commerce, in 
        furtherance of or in connection with the conduct described in 
        subsection (a);
            ``(2) the defendant used a means, channel, facility, or 
        instrumentality of interstate or foreign commerce in 
        furtherance of or in connection with the conduct described in 
        subsection (a);
            ``(3) any payment of any kind was made, directly or 
        indirectly, in furtherance of or in connection with the conduct 
        described in subsection (a) using any means, channel, facility, 
        or instrumentality of interstate or foreign commerce or in or 
        affecting interstate or foreign commerce;
            ``(4) the defendant transmitted in interstate or foreign 
        commerce any communication relating to or in furtherance of the 
        conduct described in subsection (a) using any means, channel, 
        facility, or instrumentality of interstate or foreign commerce 
        or in or affecting interstate or foreign commerce by any means 
        or in manner, including by computer, mail, wire, or 
        electromagnetic transmission;
            ``(5) any instrument, item, substance, or other object that 
        has traveled in interstate or foreign commerce was used to 
        perform the conduct described in subsection (a);
            ``(6) the conduct described in subsection (a) occurred 
        within the special maritime and territorial jurisdiction of the 
        United States, or any territory or possession of the United 
        States; or
            ``(7) the conduct described in subsection (a) otherwise 
        occurred in or affected interstate or foreign commerce.
    ``(e) For purposes of this section, the term `female genital 
mutilation' means any procedure performed for non-medical reasons that 
involves partial or total removal of, or other injury to, the external 
female genitalia, and includes--
            ``(1) a clitoridectomy or the partial or total removal of 
        the clitoris or the prepuce or clitoral hood;
            ``(2) excision or the partial or total removal (with or 
        without excision of the clitoris) of the labia minora or the 
        labia majora, or both;
            ``(3) infibulation or the narrowing of the vaginal opening 
        (with or without excision of the clitoris); or
            ``(4) other procedures that are harmful to the external 
        female genitalia, including pricking, incising, scraping, or 
        cauterizing the genital area.''.

SEC. 4. REPORT.

    Not later than one year after the date of the enactment of this 
Act, and annually thereafter, the Attorney General, in consultation 
with the Secretary of Homeland Security, the Secretary of State, the 
Secretary of Health and Human Services, and the Secretary of Education, 
shall submit to Congress a report that includes--
            (1) an estimate of the number of women and girls in the 
        United States at risk of or who have been subjected to female 
        genital mutilation;
            (2) the protections available and actions taken, if any, by 
        Federal, State, and local agencies to protect such women and 
        girls; and
            (3) the actions taken by Federal agencies to educate and 
        assist communities and key stakeholders about female genital 
        mutilation.

SEC. 5. SENSE OF THE CONGRESS.

    It is the sense of the Congress that the United States District 
Court for the Eastern District of Michigan erred in invalidating the 
prior version of such section 116 (See United States v. Nagarwala, 350 
F. Supp. 3d 613, 631 (E.D. Mich. 2018)). The commercial nature of 
female genital mutilation (hereinafter in this section referred to as 
``FGM'') is ``self-evident,'' meaning that the ``absence of 
particularized findings'' about the commercial nature of FGM in the 
predecessor statute did not ``call into question Congress's authority 
to legislate'' (Gonzales v. Raich, 545 U.S. 1, 21 (2005)). 
Nevertheless, the Congress has elected to amend the FGM statute to 
clarify the commercial nature of the conduct that this statute 
regulates. But, by doing so, Congress does not hereby ratify the 
district court's erroneous interpretation in Nagarwala.
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