Strengthening the Opposition to Female Genital Mutilation 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

• attempting or conspiring to perform FGM;

• facilitating or consenting to FGM, as a parent, guardian, or caretaker; and

• transporting a minor for FGM.

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.