German court rules child’s religious circumcision can be a criminal offence – Analysis
27 June 2012
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.
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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