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(Jul 03, 2012) According to a decision handed down by the Cologne regional court (Landgericht Köln) on June 26, 2012, circumcision of young boys is a criminal act, prohibited by law, even if parents have consented to the procedure. The decision is grounded on the reasoning that such circumcisions cause "illegal bodily harm" to the children, and that the child's right to physical integrity supersedes parents' rights and the freedom of religion. (Sung Un Kim, Germany Court Criminalizes Circumcision of Minors, PAPER CHASE NEWSBURST (June 26, 2012); Allan Hall, Religious Groups Outraged After German Court Rules Circumcision Amounts to 'Bodily Harm,' THE DAILY MAIL (June 27, 2012).)

Background

The case involved the circumcision of a four-year-old Muslim boy that was performed by a doctor at the parents' request. However, complications occurred with the operation that resulted in the Cologne public prosecutor bringing suit against the doctor. The district court, hearing the case in the first instance, acquitted the doctor, on the grounds that there was parental consent and that he had performed the procedure as a ritual act based on Islam. (Urteil des Landgerichts Köln : Religiöse Beschneidungen sind strafbar [Judgment of the District Court of Cologne: Religious Circumcisions Are Punishable], RP-ONLINE (June 27, 2012).

The Cologne regional court upheld the lower court's ruling, but on different grounds; that the doctor had believed he would be acting lawfully, in the context of an unclear legal situation surrounding the practice. While the court held that religious circumcisions in fact are to be deemed illegal because they violate the child's right to physical integrity and self-determination, it differentiated such acts from instances when a circumcision is medically necessary. (Id.; see also Press Release, Landesgericht Köln, Urteile des Amtsgerichts und des Landgerichts Köln zur Strafbarkeit von Beschneidungen nicht einwilligungsfähiger Jungen aus rein religiösen Gründe [Judgments of the Local District Court and of the Cologne Regional Court on the Criminalization of Circumcision of Non-Consensual Boys for Purely Religious Reasons], JUSTIZ-ONLINE [Landgericht Köln website] (June 26, 2012); Decision of May 7, 2012 [in German], Docket No. Az. 151 Ns 169/11, Landgericht Köln Cologne.)

Potental Impact of the Ruling

According to press reports, although the judgment is local, it could set a legal precedent that courts in Germany's other 15 states would have to follow and so an effort to reverse the decision might go all the way to the Federal Constitutional Court, the country's supreme constitutional court. (Hall, supra.) According criminal law expert Professor Holm Putzke, although the decision is not binding on other courts, it is likely to have a "signaling effect." (Urteil des Landgerichts Köln : Religiöse Beschneidungen sind strafbar, supra.) The ruling has reportedly raised the ire of Jewish and Islamic groups in Germany, who have criticized it as infringing upon the right to freedom of religion. (Hall, supra; Kim, supra.)

Putzke had reportedly initiated the legal debate over the circumcision "industry" and was apparently pleased with the verdict, stating that, after the "knee-jerk outrage has subsided," hopefully discussion will ensue "as to how much religiously motivated violence against children a society to is willing to tolerate." Urteil des Landgerichts Köln : Religiöse Beschneidungen sind strafbar, supra.)

Legal Initiatives on Circumcision of Young Boys in Some Other Jurisdictions

Three Nordic countries – Denmark, Finland, and Sweden – have seen debate, court rulings, and legislative initiatives on the issue of ritual male circumcision of boys. (Johanna Schiratzki, Banning God's Law in the Name of the Holy Body - The Nordic Position on Ritual Male Circumcision, 5 THE FAMILY IN LAW 37 (2012).)

Denmark

It was reported in 2008 that Denmark's National Council for Children had recommended adoption of a law banning circumcision of boys under the age of 15 and that the Danish Parliament had been considering legislation to regulate or ban the circumcision procedure. (DENMARK: Plan to Ban All Circumcision, CRIN [Children Rights International Network] (Nov. 20, 2008), http://www.crin.org/violence/search/closeup.asp?infoID=19016.) Although Denmark has Guidelines for Circumcision of Boys (Vejledning om omskæring af drenge), as yet there reportedly have been no criminal case decisions on male ritual circumcision, and the national authority that assesses medical negligence, in a 2006 ruling, decided against criticizing a medical doctor for his circumcision of a five-month-old boy. (Schiratzki, supra at 39.)

Finland

In Finland, the Finns Party has tabled an initiative in Parliament calling for extending to boys the ban on girl circumcision. In putting forward the proposal, MP Vesa-Matti Saarakkala cited two recent court decisions on circumcision; "[i]n one a layman and the child's parents were convicted of conspiracy to commit assault. In the other, a doctor who performed a circumcision was not convicted, but the child's father was fined for assault." (Finns Party Proposes Circumcision Ban, UUTISET (Apr. 27, 2012).) Minister of Justice Anna-Maja Henriksson (of the Swedish People's Party) also addressed the issue earlier in the spring, contending that "the procedures should be permitted, but legislation, or at least guidelines from the ministerial level are needed on who may perform the circumcisions and under what circumstances." (Irina Vähäsarja, NEWS ANALYSIS: Finland Lacks Policy on Religiously-Mandated Male Circumcision, HELSINGIN SANOMAT (May 28, 2012).)

Finland's Supreme Court handed down a basic guideline on the practice in 2008. The Court held that the performance of a ritual circumcision on a Muslim boy, because it was done in a medically sound manner, could not be considered a crime. The decision has been interpreted to mean that non-medical circumcisions are permissible if performed by a doctor. (Id.) In 2011, however, Helsinki District Court, basing its decision on the Council of Europe's Convention on Human Rights and Biomedicine, which Finland signed and ratified only after the Supreme Court decision, ruled that the subject of the procedure should understand what is happening, thereby disallowing the circumcision of small children. (Id.; Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, CETS No. 164 (in force on Dec. 1, 1999).) As of the end of May 2012, however, the case was still in the Court of Appeals. (Vähäsarja, supra.)

Sweden

A law on circumcision of boys was adopted in Sweden in 2001, in the aftermath of a 1997 Swedish Supreme Court decision holding "that ritual circumcision of a minor boy that was performed with parental consent was not punishable as assault." (Id.) The law stipulates that only a licensed doctor may perform a circumcision on boys less than two months old and that a licensed doctor or certified anesthesiologist must be present; that the parents, if they share joint parental responsibility, must be in agreement about the procedure for the child; and "if possible, the boy himself should provide informed consent to be circumcised. The law states that regardless of age, a boy's wishes not to be circumcised should always be respected." (Id.; Lag (2001:499) om omskärelse av pojkar (in force June 21, 2001, as last amended Apr. 6, 2011), Notisum online Swedish law database.)

Author: Wendy Zeldin More by this author
Topic: Crime and law enforcement More on this topic
Jurisdiction: Germany More about this jurisdiction

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Last updated: 07/03/2012