18 U.S.C. § 116 — Female genital mutilation

Page 40 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 116 Subsec. (b)(2). Pub. L. 99–646, § 37(a), inserted ‘‘for the kidnapping or attempted kidnapping of a person de- scribed in section 1201(a)(5) of this title’’. Statutory Notes and Related Subsidiaries CHANGE OF NAME Reference to the Director of Central Intelligence or the Director of the Central Intelligence Agency in the Director’s capacity as the head of the intelligence com- munity deemed to be a reference to the Director of Na- tional Intelligence. Reference to the Director of Cen- tral Intelligence or the Director of the Central Intel- ligence Agency in the Director’s capacity as the head of the Central Intelligence Agency deemed to be a ref- erence to the Director of the Central Intelligence Agen- cy. See section 1081(a), (b) of Pub. L. 108–458, set out as a note under section 3001 of Title 50, War and National Defense. ‘‘United States magistrate judge’’ substituted for ‘‘United States magistrate’’ in subsec. (c)(3) pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of Title 28, Judiciary and Judicial Proce- dure. TRANSFER OF FUNCTIONS For transfer of the functions, personnel, assets, and obligations of the United States Secret Service, includ- ing the functions of the Secretary of the Treasury re- lating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 381, 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganiza- tion Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. § 116. Female genital mutilation (a) Except as provided in subsection (b), who- ever, in any circumstance described in sub- section (d), knowingly— (1) performs, attempts to perform, or con- spires 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 per- formance of female genital mutilation on such person, shall be fined under this title, imprisoned not more than 10 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) It shall not be a defense to a prosecution under this section that female genital mutila- tion is required as a matter of religion, custom, tradition, ritual, or standard practice. (d) For the purposes of subsection (a), the cir- cumstances described in this subsection are that— (1) the defendant or victim traveled in inter- state 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, fa- cility, or instrumentality of interstate or for- eign commerce in furtherance of or in connec- tion with the conduct described in subsection (a); (3) any payment of any kind was made, di- rectly or indirectly, in furtherance of or in connection with the conduct described in sub- section (a) using any means, channel, facility, or instrumentality of interstate or foreign commerce or in or affecting interstate or for- eign commerce; (4) the defendant transmitted in interstate or foreign commerce any communication re- lating to or in furtherance of the conduct de- scribed in subsection (a) using any means, channel, facility, or instrumentality of inter- state 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 for- eign commerce was used to perform the con- duct described in subsection (a); (6) the conduct described in subsection (a) occurred within the special maritime and ter- ritorial 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 ‘‘fe- male 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 clit- oral 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 vag- inal 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. (Added Pub. L. 104–208, div. C, title VI, § 645(b)(1), Sept. 30, 1996, 110 Stat. 3009–709; amended Pub. L. 112–239, div. A, title X, § 1088, Jan. 2, 2013, 126 Stat. 1970; Pub. L. 116–309, § 3, Jan. 5, 2021, 134 Stat. 4923.) Editorial Notes AMENDMENTS 2021—Subsec. (a). Pub. L. 116–309, § 3(1), amended sub- sec. (a) generally. Prior to amendment, subsec. (a) read as follows: ‘‘Except as provided in subsection (b), who- ever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora Page 41 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 117 or clitoris of another person who has not attained the age of 18 years shall be fined under this title or impris- oned not more than 5 years, or both.’’ Subsec. (c). Pub. L. 116–309, § 3(2), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as fol- lows: ‘‘In applying subsection (b)(1), no account shall be taken of the effect on the person on whom the oper- ation 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.’’ Subsec. (d). Pub. L. 116–309, § 3(3), (4), added subsec. (d) and struck out former subsec. (d), which read as fol- lows: ‘‘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 con- duct 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.’’ Subsec. (e). Pub. L. 116–309, § 3(4), added subsec. (e). 2013—Subsec. (d). Pub. L. 112–239 added subsec. (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE 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: ‘‘(1) Female genital mutilation is recognized inter- nationally 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 inter- national cooperation and enforcement at the national level. The United States should demonstrate its com- mitment 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 com- mission of female genital mutilation on minors. Fe- male genital mutilation is a heinous practice that often inflicts excruciating pain on its victims and causes them to suffer grave physical and psycho- logical 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 Com- merce 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 inter- state 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.’’ 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 Michi- gan erred in invalidating the prior version of such sec- tion 116 [this section] (See United States v. Nagarwala, 350 F. Supp. 3d 613, 631 (E.D. Mich. 2018)). The commer- cial 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 prede- cessor statute did not ‘call into question Congress’s au- thority 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.’’ CONGRESSIONAL FINDINGS Pub. L. 104–208, div. C, title VI, § 645(a), Sept. 30, 1996, 110 Stat. 3009–708, provided that: ‘‘The Congress finds that— ‘‘(1) the practice of female genital mutilation is carried out by members of certain cultural and reli- gious groups within the United States; ‘‘(2) the practice of female genital mutilation often results in the occurrence of physical and psycho- logical health effects that harm the women involved; ‘‘(3) such mutilation infringes upon the guarantees of rights secured by Federal and State law, both stat- utory and constitutional; ‘‘(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 guaranteed under the first amendment to the Constitution or under any other law; and ‘‘(6) Congress has the affirmative power under sec- tion 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.’’ § 117. Domestic assault by an habitual offender (a) IN GENERAL.—Any person who commits a domestic assault within the special maritime and territorial jurisdiction of the United States or Indian country and who has a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for of- fenses that would be, if subject to Federal juris- diction— (1) any assault, sexual abuse, or serious vio- lent felony against a spouse or intimate part- ner, or against a child of or in the care of the person committing the domestic assault; or (2) an offense under chapter 110A, shall be fined under this title, imprisoned for a term of not more than 5 years, or both, except that if substantial bodily injury results from violation under this section, the offender shall be imprisoned for a term of not more than 10 years. (b) DOMESTIC ASSAULT DEFINED.—In this sec- tion, the term ‘‘domestic assault’’ means an as- sault committed by a current or former spouse, parent, child, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, child, or guardian, or by a person simi- larly situated to a spouse, parent, child, or guardian of the victim. (Added Pub. L. 109–162, title IX, § 909, Jan. 5, 2006, 119 Stat. 3084; amended Pub. L. 113–104, § 3, May 20, 2014, 128 Stat. 1156.)