A domestic court hands down a ruling that has substantial implications for religious groups; strong protests are made to government; this is branded as a further example of creeping prejudice in European law against these groups; an assurance is given by the Prime Minister’s spokesperson of the government’s commitment to find a way around the court’s decision.
The appeal ruling of a Cologne court regarding the legality of circumcision within German law, reported here and here, followed a pattern of events very similar to those on the manifestation of faith in public life in the UK, reviewed in a recent post. The more controversial nature of the German case caught the attention of the headline writers, but much of the reporting tended to blur the main facts of the case, summarized below.
A legal analysis and links to the case law are available on the web log of Adam Wagner. The comments on the judgement are based upon the English translations provided to Adam Wagner by Margaret Marks of Transblawg and the Durham Law School.
- The case was an unsuccessful appeal by the Cologne public prosecutor’s department against an earlier judgment of the Local Court. It was brought against a Muslim doctor who performed a circumcision on a 4 year old Muslim boy. The ruling has potential implication on Germany’s ~200,000 Jews and 3.8 to 4.3 million Muslims;
- The defendant, (‘Dr K’), was charged that he ‘physically mistreated another person and injured that person’s health by means of a dangerous instrument (sections 223 (1), 224 (1) no. 2, second alternative, Criminal Code (Strafgesetzbuch, StGB)’.
The grounds on which the defendant were acquitted were:
- that the scalpel is not a dangerous instrument within the meaning of the provision if – as here: it is used by a doctor in accordance with its intended use; and
- that his mistake as to the law was unavoidable, as the legal position as a whole is very unclear, (Verbotsirrtum). As such, under section 17 of the German Criminal Code he was ‘deemed to have acted without guilt’.
The contentious issues were those relating to factors which would be taken into consideration had the legal position been unambiguous, i.e:
- circumcision for the purpose of religious upbringing is a violation of physical integrity; and if it is actually necessary it is at all events unreasonable;
- the child’s body is permanently and irreparably changed by the circumcision. This change conflicts with the child’s interest of later being able to make his own decision on his religious affiliation; and
- the parents’ right of upbringing is not unreasonably adversely affected if they are required to wait to find out if the boy later, when he is of age, decides himself to be circumcised as a visible sign of his affiliation to Islam.
Depending upon the binding nature of this judgement, these factors could be regarded are having now been clarified.
The ruling of the Cologne court is problematic, for whilst not binding elsewhere in Germany, it has created a significant degree of uncertainty and the German Medical Association has advised its members not to perform circumcisions following the ruling. A similar situation now exists following the ruling on prayers at Bideford Council meetings, and many other Local Authorities have banned Council Prayers on a precautionary basis, uncertain of the implications of their new powers within the Localism Act 2011.
Since the defendant in the Cologne case was acquitted, an appeal would be difficult to launch, and as the ruling does not violate civil or human rights, there is no easy route to the Constitutional Court. A change in the law, as promised by Angela Merkel, would be possible, but not straightforward, since this would require consideration of the German Criminal Code and the Basic Law of the Federal Republic of Germany.
However, the court did not rule against circumcision per se and its main concerns were irreversible nature of the procedure, and the ability of the child to give an informed consent. The latter is more problematic to Jews where circumcision should be performed at 8 days after the birth, whereas there is no fixed age for Muslim circumcision which is dependent upon the family, region and country. However, even at the typical age of seven years old, it would be difficult to ensure that the child had given an informed consent. There have been suggestions that families might circumvent the ruling by going outside Germany, but whilst this would overcome issues of doctors’ criminal liability it would bring into focus the human rights issues identified by the court and the attendant liabilities of the parents.
Although supported by the World Health Organization, there is no consensus on the medical benefits, or otherwise, of male circumcision and some doctors have concerns regarding the medical ethics of undertaking a procedure that is not medically necessary. Practices vary from country to country and it is still relatively common in the United States regardless of religion. As recently as the 1960s the rate of male circumcision in the US was about 80 per cent, but some recent figures indicate a fall to around 55 per cent.
By contrast, Christian initiation rites are less problematic since they do not result an irreversible physical change to the child. However, they are generally conducted on someone unable to give an informed consent, and no-one can ever be un-baptized or re-baptized because baptism is held to make ‘an indelible mark on the soul’.
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