[Pub. L. 116–309, § 3(1)], amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “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.”
[Pub. L. 116–309, § 3(2)], amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: “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.”
[Pub. L. 116–309, § 3(3)], (4), added subsec. (d) and struck out former subsec. (d), which read as follows: “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.”
[Pub. L. 116–309, § 3(4)], added subsec. (e).
[Pub. L. 112–239] added subsec. (d).
Statutory Notes and Related Subsidiaries
[Pub. L. 104–208, div. C, title VI, § 645(c)], Sept. 30, 1996, [110 Stat. 3009–709], provided that: “The amendments made by subsection (b) [enacting this section] shall take effect on the date that is 180 days after the date of the enactment of this Act [Sept. 30, 1996].”
Congressional Findings and Purpose
[Pub. L. 116–309, § 2], Jan. 5, 2021, [134 Stat. 4922], provided that:
“The Congress finds the following:
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.
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.
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.
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.
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.
Amending the statute to specify a link to interstate or foreign commerce would confirm that Congress has the affirmative power to prohibit this conduct.”
Sense of the Congress
[Pub. L. 116–309, § 5], Jan. 5, 2021, [134 Stat. 4924], provided that: “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 [this section] (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.”
[Pub. L. 104–208, div. C, title VI, § 645(a)], Sept. 30, 1996, [110 Stat. 3009–708], provided that: “The Congress finds that—
the practice of female genital mutilation is carried out by members of certain cultural and religious groups within the United States;
the practice of female genital mutilation often results in the occurrence of physical and psychological health effects that harm the women involved;
such mutilation infringes upon the guarantees of rights secured by Federal and State law, both statutory and constitutional;
the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control;
the practice of female genital mutilation can be prohibited without abridging the exercise of any rights guaranteed under the first amendment to the Constitution or under any other law; and
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.”