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I. Introduction
Female genital mutilation (FGM) is an ancient practice apparently originating in either Egypt or the Sudan and possibly dating as far back as 3100 B.C.E.1 The custom has spread to much of Africa and is practiced by both Islamic and non-Islamic societies. While similar practices existed in isolated populations of the Amazon Basin, the Middle East, and Pacifica, and in some instances may continue today, the vast majority of FGM today is found in Africa. In recent years, this ancient custom has taken on a new international importance as a human rights issue, due in part to media exposure of FGM practiced by immigrants in Europe and the United States.
As a result of the immigration of a significant number of people from cultures that practice FGM, the United States has had to prospectively deter such practices within its borders. While some states, including Texas, have directly legislated against FGM, most states have not, because either they consider current child abuse laws sufficient, or the legislatures have not given the issue priority on their legislative agendas, or both. Instead, the major effort in addressing FGM has been at the national level with the passage of the Female Genital Mutilation Act in 1996, which criminalizes the practice as a form of assault. The act was part of a coordinated federal program addressing FGM that includes immigrant education and monitoring in an effort to prevent the influx of FGM activities.
Our system of government splits legislative authority between the national and state governments to create a balance of power termed "Federalism." Whenever the federal government intervenes in what is essentially local criminal activity, it must justify this invasion of the state's domain by relying on one of the federal government's many enumerated or implied powers. This creates difficulty when the federal government attempts to address a national, immigrant-derived issue, such as FGM, that manifests itself as a form of local crime.
This paper explores three possible bases of authority for the federal FGM statute. Part II of this paper examines the historical background of FGM practices and discusses medical and sociological aspects of this ancient custom. Part III provides an overview of the legal response to modern FGM issues in Europe and Africa and...