In July David Pocklington posted on the ruling of the Cologne Regional Court (Landgericht) regarding the legality under German criminal law of circumcising minors, in light of the prosecution brought against a Muslim doctor who performed a circumcision on a 4-year-old Muslim boy. Durham Law School has provided an English translation of the judgment.
The Court held that under the saving in section 17 (Mistake of law) of the German Criminal Code the defendant was not to be deemed criminally liable because he had made “an unavoidable mistake of law” as to the wrongful nature of the act: in short, that there was an absence of mens rea. Nevertheless, what he had done was in principle illegal:
“According to s 1627 1st sentence of the German Civil Code (BGB), the right of care covers only educational measures which are in the best interests of the child. According to the prevailing opinion within academic commentary … the circumcision of a boy unable to consent to the operation is not in accordance with the best interests of the child even for the purposes of avoiding a possible exclusion from the religious community and the parental right of education.
The fundamental rights of the parents in Art. 4(1) and Art. 6(2) of the Basic Law (GG: Grundgesetz) are restricted by the fundamental right of the child to bodily integrity and self-determination in Art. 2(1) and (2) 1st sentence GG … The infringement of the bodily integrity caused by a circumcision for purposes of religious education is unreasonable in the sense of proportionality, even if necessary to that end… Moreover, the circumcision changes the child’s body permanently and irreparably. This change runs contrary to the interests of the child in deciding his religious affiliation independently later in life. On the other hand, the parental right of education is not unacceptably diminished by requiring them to wait until their son is able to make the decision himself whether to have a circumcision as a visible sign of his affiliation to Islam…”
Needless to say, the decision of the Cologne Regional Court caused utter consternation among Germany’s 200,000 Jews and 4 million Muslims – so much so that Chancellor Angela Merkel’s spokesman, Steffen Seibert, subsequently made a statement reported by the BBC in which he upheld the right to practise religious circumcision and declared that the Government would look urgently at establishing legal certainty:
“For everyone in the Government it is absolutely clear that we want to have Jewish and Muslim religious life in Germany. It is clear this cannot be put on the back burner. Freedom to practise religion is a cherished legal principle”.
David noted that a change in the law as promised by Chancellor Merkel would not be straightforward because it would require reconsideration of the German Criminal Code and the Basic Law of the Federal Republic of Germany. However, the move appeared to have political support; and on 19 July the Bundestag passed a non-binding resolution calling for legislation to put the legality of the practice beyond doubt. The matter is currently under consideration by the National Ethics Council (Nationaler Ethikrat).
And that, I assumed, was an end of the matter – but the issue has since resurfaced.
Reuters reported on 22 August that two months after the decision of the court in Cologne, the subsequent statement by Chancellor Merkel and the debate in the Bundestag, an unnamed doctor had filed charges against Rabbi David Goldberg, of Hof in Bavaria, for circumcising baby boys. The report said that the local chief public prosecutor, Gerhard Schmitt, would review the charges and decide whether or not to open a case against Rabbi Goldberg. Herr Schmitt was quoted as saying that it was too early to say whether or not the case had merit.
The latest move has evoked a shocked reaction both from the Jewish community and from the Government. Marvin Hier and Abraham Cooper of the Simon Wiesenthal Center described it as “an attack not only on one rabbi but against the entire Jewish people”, while the Reuters report quoted the Foreign Minister, Guido Westerwelle, as saying that
“We cannot put Germany’s reputation as a land of religious tolerance at risk. Jewish and Muslim traditions must not be restricted by legal uncertainties.”
Comment: So how, if contested, might the issue play in the UK? So-called “female circumcision” is a criminal offence under the Female Genital Mutilation Act 2003 and the Prohibition of Female Genital Mutilation (Scotland) Act 2005 which, between them, replaced and updated – for all three jurisdictions – the Prohibition of Female Circumcision Act 1985. However, it remains the presumption at common law in England and Wales that non-therapeutic male circumcision is lawful provided that, in the case of a child, both parents consent. The current guidance of the General Medical Council implies that this must also be the common law position in Scotland: see Personal beliefs and medical practice – guidance for doctors paras 12 & 13.
As to the common law position, in Re J (Child’s Religious Upbringing and Circumcision)  1 Fam (CA) 307 Dame Elizabeth Butler-Sloss P stated that
“The decision to circumcise a child on grounds other than medical necessity is a very important one: the operation is irreversible and should only be carried out where the parents together approve of it or, in the absence of parental agreement, where a court decides that the operation is in the best interests of the child” (para 32).
Similarly, in Re S (Specific Issue Order: Religion: Circumcision)  EWHC 1282 (Fam) the court refused to allow a Muslim woman who had separated from her husband – a Jain – to convert their son and daughter to Islam and to have the boy circumcised. Baron J held that the children should be allowed to decide for themselves which religion, if any, they wished to follow when they were old enough to do so and that it would not be in the boy’s best interests to circumcise him.
It remains the case, however, that there is no statutory authority for the practice in any of the three jurisdictions. In 1995, in Consent in the criminal law: Law Commission consultation paper no 139 at paras 119 & 128 the Law Commission for England and Wales stated that although in its view the practice was lawful, it would be helpful to “put the lawfulness of ritual male circumcision beyond any doubt” – but that has never happened.
Moreover, the issue is one of considerable controversy, involving the rights of the parents, the right of the child to bodily integrity – and what appear to be increasingly-divided opinions within the medical profession as to whether or not the procedure is has any health benefits or, indeed, is ethically justifiable at all. The current stance of the British Medical Association is set out in considerable detail in The law and ethics of male circumcision: guidance for doctors: the BMA’s position might be characterised as “unenthusiastic but broadly neutral”. The American Academy of Pediatrics, on the other hand, has today announced a revised policy statement – which has been endorsed by the American College of Obstetricians and Gynecologists – of which the cautious conclusion is that:
“[T]he health benefits of newborn male circumcision outweigh the risks of the procedure, but the benefits are not great enough to recommend routine circumcision for all newborn boys.”
Should the matter ever reach the European Court of Human Rights, proponents will presumably cite the latest AAP policy statement in support of the contention that the procedure is in any case beneficial rather than harmful. At a more basic level, however, there would be a conflict between Article 9 ECHR (thought, conscience and religion) and, possibly, Article 8 (respect for private and family life) as against the criminal law of the jurisdiction concerned. Moreover, in a long analysis of the Cologne judgment at UKHRB Adam Wagner points out that “Article 3 (which prohibits inhuman and degrading punishment) has sometimes been expressed by the courts in terms of the protection of physical integrity”, while the BMA guidance suggests that the issue might also engage Article 5 (liberty and security of the person).
Given the tenor of the recent judgment in Lautsi and Ors v Italy 30814/06  ECHR 2412 (18 March 2011) one might expect a defendant state to be given a fairly wide margin of appreciation on such a sensitive socio-religious issue – which might mean that a state that had imposed a ban would have it upheld but, equally, that the ECtHR would be reluctant to interfere in the domestic affairs of a country in which the practice remained legal.
But you never can tell: as we all know, Strasbourg is a funny old place.