German court rules child’s religious circumcision
can be a criminal offence – Analysis.
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.
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.
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.
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).
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).
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.
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.
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, a
nd as such he could not have known it was unlawful.
error and the law at the time was unclear in relation to circumcision, a
nd as such he could not have known it was unlawful.
An appeal was brought by the prosecutor but the appeal court
upheld the acquittal.
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.
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.
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).
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”.
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”.
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."
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