German court rules child’s religious circumcision can be a criminal offence – Analysis

Updated | As has been widely reported, a regional German court has ruled that a Muslim boy’s religious circumcision was a crime and that it violated his basic constitutional rights to bodily integrity. This ruling has no direct effect on other European states, but will buoy the campaign against male circumcision.

Thanks to an admirably swift response from the Cologne Regional Court to my request, I have uploaded the appeal decision (the important one), the original decision which was under appeal and the court’s press release. All are in German. I have also uploaded a version of the appeal judgment in English (updated - I have been sent a much better English translation).

This was a case in which a doctor was engaged by the parents of a 4-year-old Muslim boy to circumcise him solely for religious reasons (that is, there was no particular medical indication for the surgery). He carried out the circumcision under a local anaesthetic. Two days later, the child was taken to hospital as the wound was bleeding. The bleeding was stopped and it does not appear that there were any long-term consequences.

The doctor was prosecuted under German criminal law. A local court acquitted him, on the basis that there was no medical error and the law at the time was unclear in relation to circumcision, and as such he could not have known it was unlawful. An appeal was brought by the prosecutor but the appeal court upheld the acquittal.

Whilst the doctor’s acquittal was upheld , this was only because under the para 17 of the German Criminal Code he was acting under an “unavoidable mistake of law” and therefore was not liable. In other words, it was not his fault the law was unclear.

But it would seem (on my sketchy understanding of German criminal law) that in future, doctors could be charged and convicted for carrying out circumcisions as the law is now clear.

The justification for the decision, as put by the court, is simple and surprisingly short. First, the defence of “social adequacy” was did not exist and was therefore not available to justify certain actions which would otherwise be criminal (this appears to be a defence comparable to the rarely defence defence of “necessity” in English law). Rhe social adequacy of the religious practice of circumcision on children could not prevail over the “child’s right to self-determination”.

Secondly, the action of the Defendant could not be justified by the consent of the child, as he did not have the “intellectual maturity to give it”. Section 288 of the German Criminal Code requires that

Whosoever causes bodily harm with the consent of the victim shall be deemed to act lawfully unless the act violates public policy, the consent notwithstanding.

Thirdly, the court justified the decision with reference to Germany’s Basic Law - a constitutional statute similar but not the same as the European Convention on Human Rights. The court carried out a balancing exercise which will be familiar to anyone who has read a UK human rights judgment involving, for example, the right to privacy versus the right to free expression.

On the one hand, the court considered the fundamental rights of the parents under Article 4 (freedom of faith and conscience – very similar to Article 9 ECHR) and Article 6(2) (“The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them” – this has no direct equivalent in the ECHR but probably comes broadly under Article 8).

On the other, there were the rights of the child to “physical integrity” under Article 2(2). There is no direct equivalent in the ECHR, but Article 3 (which prohibits inhuman and degrading punishment) has sometimes been expressed by the courts in terms of the protection of physical integrity.

The court observed that there is an “inherent constitutional limit” to the religious rights of the parents, and that limit was breached by the religious circumcision. The court paid particular regard to the fact that circumcision led to the child’s body being “permanently and irreparably changed” and that it could affect his own religious interests later should he decide, for example, not to be a Muslim. The court also took into account the fact that circumcision would be a “visible sign” of the associated decision of the parents.

Implications

Clearly, the decision of a regional court in Germany will have no direct effect here. And in terms of the indirect effect, that is the potential influence of the reasoning on our own judges, whist there are similarities between the German constitutional system and our own Human Rights Act, there are also significant differences. Moreover, the German criminal law is very different to our own. So it would be  difficult to argue that the reasoning could apply here.

The case may also be appealed – perhaps to the powerful and respected German Constitutional Court (if that route is available; I would expect it to be so but there may be an issue as, technically, the defendant was acquitted). Should that court uphold the decision, that could have very significant consequences indeed.

However, and with the above provisos in mind, the judgment does raise important and difficult questions about the relative merits of male religious circumcision. I have written about the issue before, and others have argued that the practice is unjustifiable.

I would be surprised a UK court came to a similar decision, but it is certainly not impossible. The UK is a signatory to the Convention on the Rights of the Child, which mandates, amongst other things, that “the best interests of the child shall be a primary consideration” in all actions considering children. This slightly tortuous wording (in particular, the potentially illogical “a primary consideration” not “the primary consideration”) has been already been highly influential in the immigration context. Although parents rights to religious expression are protected under the ECHR, as the German court put it, there is of course a limit to those rights.

Applying human rights principles, a criminal court over here would not carry out the same balancing exercise, but rather would have to decide whether an interpretation of, say, the law of grievous bodily harm which outlawed circumcision for purely religious reasons, was compatible with Article 9, the right to freedom of conscience and religious expression.

My suspicion is that the European Court of Human Rights would be wary of making a controversial ruling on such a controversial issue over which there is clearly no European consensus (arguably, the current consensus is that religious circumcision is justifiable).

And, even if a UK court made a similar decision, the CPS may choose not to prosecute those who still chose to carry out circumcisions or Parliament could simply legislate to reverse the ruling. Moreover, parents might be able to argue that they were carrying out circumcisions primarily for health reasons: the World Health Organisation currently recommends male circumcision to prevent the spread of HIV. Interestingly, this was not considered by the Cologne court.

So, a judgment which will have no direct consequences over here but one which will no doubt provoke an interesting and important debate.

Update, 28 June 2012: I have been sent a much better translation of the ruling by Margaret Marks of Transblawg. She has kindly agreed for the translation to be available to UKHRB readers, and it can be downloaded here.

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12 thoughts on “German court rules child’s religious circumcision can be a criminal offence – Analysis

  1. I have strong views against female circumcision for some time now and believe it is a form torture against young girls, so why then should male circumcision be defended? Being a Muslim woman I found myself in the awful situation of trying to protect my little boy from being circumcised but eventually gave in to the family pressures from the father and both sides of the family.

    People use religious beliefs as the reason for this practice, I was told that by doing this the boy would become a Muslim, my reply to this was he was born a purer Muslim than most adults are and what are the real benefits of following this practice? Apparently there are medical benefits for men to be circumcised although what these are I have yet to understand.

    Despite my views, I don’t believe banning the practice is the answer, it will only lead to communities carrying out the practice ‘underground’ and in possibly dangerous circumstances. Perhaps there needs to be a clearer understanding amongst people on why circumcision should be carried out in this day and age and is it really necessary.

    I hope that the lawmakers take these factors into consideration should a similar case arise in the English courts.

  2. The WHO recommendations could not credibly be used to justify most male circumcisions in the UK:
    -the recommendations relate mainly to disease transmission through sexual intercourse, and no minor should be at any risk of contracting HIV or spreading any other virus if uncircumcised (and what practicing muslim or jew should be at risk of these??).
    -the other ‘health benefits’ in their report appear to be achievable by precticing adequate hygeine, ‘phimosis’ can be treatable with corticosteriods, and the others ( untreatable paraphimosis, balanposthitis balanitis xerotica obliterans, preputial neoplasms, excessive skin, and tears in the frenulum after getting your knob end caught in a zipper or machinery) occur about as frequently as conjoined twins.

    However, if attempts to ban circumcisions were made in the UK, all that would occur would be a rise in the incidence of deliberate misdiagnosis .Just as ‘Catholics’ in Ireland seeking an abortions can ensure it is judged to be an ‘ectopic’ pregnancy by doctors, the incidence of excessive skin diagnoses would rocket. There should at least be an insistence in the UK that male circumcision is performed by a qualified/licensed individual in a sterile environment -and use of a local anaesthetic wouldnt be too much to insist on either. Mohels should certainly be licensed -and CRB checked too.

    There are of course, no ‘health benefits’ for female circumcision at all,so their parents simply take them to another country to be mutilated. Perhaps male circumcision is a child protection issue?

    [this comment has been slightly edited]

  3. There are real concerns in the Jewish community itself about unlicenced Mohels – see ‘Jewish Whistleblower’ blog at ..and even in Israel, the Knesset are concerned about standards and attempting to increase their supervision.

  4. pregnant mothers and their partners shouls be made to sign agreement acknowledging that childen have human rights to body integrity.
    of course this will not stop bigotted parents taking children abroad but it woudl help get the message across that medieval prcatices must stop.

    On the practical side a woman finds that a uncirmumsized penis gives her greater thrills which is perhaps why so many patriarchal societies try to enforce it as they don’t want their women to look forward to sex.

  5. The health benefits of circumcision may be somewhat overrated by the WHO. Particularly the ‘Metzitzah’ practice…the UK, and indeed the WHO, fudge the issue to avoid being forced to confront the ‘religious freedoms’ problem.

    The conservative leader of European Orthodoxy, Chatam Sofer (1762–1839) was asked to rule on the procedure of Metzitzah, mentioned in the Mishna. The mohel sucks the incision site to force a bloodflow through the cut. The Chatam Sofer writes that the original reason for Metzitzah was functional, to protect the health of the child. The flow of blood would disinfect, help healing, and dislodge any blockages caused by the circumcision itself. He argued that, given the health fears raised in his day, Metzitzah with a sponge was acceptable. Opponents of his ruling argued this was an exceptional ruling rather than a general one, and only in response to the threat of the authorities to ban circumcision altogether.
    However, A few years ago a Chasidic mohel who used the oral method in New York was found to have infected three children with herpes, one of whom died.

    In response, New York authorities tried to prohibit him from performing Metzitzah b’peh. However, the mohel’s attorney argued that the New York Department of Health had not supplied conclusive medical evidence linking his client with the disease. In September 2005, the city withdrew the restraining order and turned the matter over to a rabbinical court. In May 2006, the Department of Health for New York State, issued a protocol for the performance of Metzitzah b’peh which purported to allow it to continue while still meeting the Department of Health’s responsibility to protect the public health.
    http://jeremyrosen.blogspot.co.uk/2012/03/circumcision-troubles.html

  6. Margaret Marks is great, isn’t she?

    I hope this is somehow appealed. I’m not sure what I think about circumcision but I think Germany needs clarity about this now.

    This is only a Landgericht (Regional Court) judgment – I’m not sure to what extent it can be said to have actually changed German law, if at all. But it strikes me as totally unsatisfactory for German doctors to feel they risk prosecution on the basis of what’s roughly the equivalent of one Crown Court rehearing appeal.

    I think it can now be appealed direct to the Federal Court of Justice. I hope the prosecutors do so that this can be sorted out. Maybe the doctor can go to the Federal Constitutional Court too, ultimately.

    • As you’ve pointed out it could only be appealed by the prosecution, since the defendant was acquitted. The way to the Constitutional Court is however blocked, since technically the ruling doesn’t violate civil or human rights. There is a theoretical way if the prosecution decides to appeal (Why would they?) and the Federal Court of Justice decides either to convict the defendant or wants to convict the defendant and wants to obtain a decision from the Federal Constitutional Court, Art. 100 I GG. However I doubt that the last way actually exists, since the law (§223 StGB) itself is obviously constitutional and you can’t obtain a decision on the reading of the law by the courts via Art. 100 I GG.
      Anyway, I doubt that there will be an appeal, which ofc, unless the legislator steps in, is a blow to legal certainty. I am however not sure if even the legislator could allow circumcision for religious reasons. It looks to me like a blatant violation of Art. 3 III 1 GG.

  7. Children have two sets of human rights.
    1. They have the rights belonging to every human as set forth in the ECHR and the UN Covenant on Civil and Political Rights (CCPR).
    2. They have the special rights that they need for their protection during their minority as set forth in the UN Convention on the Rights of the Child.

    When considering the circumcision of children, one must look to the UN Covenant on Civil and Political Rights, which enunciates the right to security of the person and the right to protection against cruel and degrading treatment.

    With regard to the religious rights of the parents, the CCPR specifically provides that religious rights do not extend to violating the rights of others:

    18(3) says:

    3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

    The German Basic Law is similar, so the court has properly decided this matter.

    There is a full discussion at:

    http://www.doctorsopposingcircumcision.org/DOC/statement09.html

  8. Concerning the WHO recommendation: this recommendation bases on studies carries out in Kenya and Uganda. So the court referred to the expert who declared the surgery as free of defects and his judgement that “in Central Europe, at all events, there is no need to carry out circumcisions as a preventative measure”. The court did not ignore a possible medical indication for the circumcision but found this was not the case.
    The court wasn’t obliged to consider this, because the defendand (the surgeon) stated that the circumcision was carried out solely for religious reasons.

  9. Update as of 9th July:
    We need to look at the method of circumcision – positive medical harm can result:
    “A controversial Jewish circumcision practice in which the blood of a baby’s cut penis is sucked by a religious leader has been condemned after the deaths of two infants.
    The ‘metzitzah b’peh’ performed by ultra Orthodox Jews sees the eight-day old baby have a traditional circumcision but the ‘mohel’ then places his mouth around the wound and sucks up the blood.
    But the practice – intended to prevent infection – has sparked controversy in recent years after the death of two infants and the contraction of herpes in at least 11 others between November 2000 and December 2011″

    See more at: http://www.dailymail.co.uk/news/article-2170825/New-York-wants-ban-Jewish-circumcision-ritual-causes-fatal-HERPES-babies.html#ixzz208AGDMTy

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