Amina and her parents are U.S. citizens, but Amina’s parents are from Mali where most of Amina’s extended family still reside. Amina was born in the U.S., and she had never met her relatives in Mali. Last summer, Amina’s parents took her on a trip to Mali a month-and-a-half before her 18th birthday. When Amina arrived in Mali, her relatives welcomed her with open arms and made her feel at home. However, a few days before Amina and her parents returned to the U.S., she was awakened by her mother and taken to a nearby building where her grandmother, her aunts, and many other women were gathered along with several teenage girls. Everyone appeared to be gathered for a party or celebration of some kind, but instead some of the women took Amina and the other girls one by one, tied them down, and forced them to undergo “female circumcision.”
Amina was traumatized. She received no medical attention, and she endured excruciating pain for several weeks afterwards. Amina has never really healed, either physically or mentally. She suffers from chronic pain and discomfort, she has been treated for numerous infections and other medical conditions. She is at high risk for serious future complications with regard to her sexual and reproductive health. Amina also has nightmares about the incident almost nightly. Her relationship with her parents and relatives is severely strained, she has become socially withdrawn, and she suffers from depression and loneliness. She also suffers from constant stress, anxiety, and other mental impairments. Amina has been receiving mental health treatment from a psychologist at her college’s health clinic for the past several months, and she been diagnosed with post-traumatic stress syndrome.
Amina believes her chances of having a happy and fulfilling life have been ruined. She will experience physical and mental pain and will have to undergo medical and mental health treatment for the rest of her life. Moreover, she is convinced she might never have an intimate relationship with anyone and that she might never be able to have children. Finally, she is concerned that the ongoing stress and strain of her situation might prevent her from completing college or from having a career and that her financial future is in jeopardy. Amina believes what happened to her is a crime and that those responsible should be punished, but she has also asked whether she may sue those responsible for monetary compensation for the harm they have caused her.
What will be your advice to Amina?
Although you are a recent law school graduate, you know that what happened to Amina is a crime, but you are not aware of any U.S. laws criminalizing female circumcision. Certainly what happened to Amina would be covered by civil torts such as assault, battery, kidnapping, infliction of emotional distress, and probably others. However, you are concerned about the procedural issues involved in trying to bring claims under domestic law against foreign citizens for acts that happened outside the U.S. Rather than pursing this line of research, you recall past news reports that sound similar to what Amina described. You are certain those reports referred to female circumcision as a human rights violation. Since this seems like a promising approach, you consult this research guide.
You decide to start with the “Current Awareness Tool” tab to see what you can learn about “female circumcision.” Searching the term “female circumcision” on the Human Rights Institute (HRI) website, you get several results including a document entitled Human Rights and Domestic Violence. Accessing this document, which is available for free on the HRI website, you discover that it is a legal advocacy manual and that it includes a chapter on female genital mutilation (FGM). You are surprised to learn that although FGM is widely considered to be a violation of a number of international human rights treaties it continues to be practiced in nearly 30 countries. Moreover, you are surprised to find that at least 16 U.S. states and the federal government have passed statutes criminalizing FGM. You decide to review the federal statute using the “FDsys Retrieve by Citation” webpage, a resource you found under the “Research & Practice Materials” tab of this research guide that provides free access to federal statutes.
You discover that 18 U.S.C § 116 criminalizes not only FGM performed on a person younger than 18 years of age but also the act of transporting a person outside the U.S. in order to subject them to FGM. Since this is what happened to Amina, her parents could be punished with up to five years in prison, a fine, or both under this statute. Having discovered that Amina has the option of seeking criminal charges under 18 U.S.C § 116, you turn your attention back to the issue of civil liability. You also read in the Human Rights and Domestic Violence manual that there is an international human rights treaty called the Convention against Torture (CAT) and that the U.S. has ratified this treaty and is bound by its provisions. This advocacy manual also makes a fairly strong argument that FGM is torture and that it therefore violations the CAT. This suggests to you that it might be possible to bring a torture claim under the CAT. You recall that the U.S. Constitution makes treaties ratified by the U.S. the law of the land, but you need to know more about the CAT, about the U.S.’s obligations under it, and about the status of the CAT within the U.S. legal system.
Referring to the “Introduction” tab of this research guide, you are disappointed to find that although the U.S. has ratified the CAT this treaty is non-self-executing meaning that it does “not give rise directly to individually enforceable rights in U.S. courts.” Reading further, however, you discover that Congress enacted the Torture Victim Protection Act (TVPA) (28 U.S.C. § 1350 note) to fulfill U.S. obligations under the CAT by permitting both U.S. and non-U.S. citizens to bring civil claims for damages against individuals who commit torture or extrajudicial killings. Reviewing this the statute, you immediately notice at least two potential problems for Amina’s claim. First, the statute requires that the alleged perpetrator be an individual acting under “actual or apparent authority, or color of law, of any foreign nation.” Second, the alleged victim has to have “exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred” before he/she may bring a claim before a U.S. court. However, you read in the Human Rights and Domestic Violence manual that the “the practice of FGM amounts to torture where states fail to act with due diligence to prevent it,” which suggests to you a possible “under color of law” argument with regard to the first issue.
At this point you, have decided to take Amina’s case, and you have determined to familiarize yourself with all aspects TVPA litigation. Therefore, you will now review the American Law Reports and American Jurisprudence articles cited under the “Research & Practice Materials” tab, and you will also conduct online research using the Westlaw resources referenced under the “Online Services” tab. You are determined to try to persuade a federal court to allow Amina to pursue a TVPA claim.