Circumcision in Cologne: Protecting a boy’s freedom of religion and bodily integrity

Cologne's Regional Court rules that circumcision violates a boy's right to physical integrity and freedom to choose a religion, marking it as a criminal religious act.

The German Regional Court of North Rhine-Westphalia recently clarified its interest in regulating the religious act of circumcision, ruling that it violates individual children’s rights and poses health risks for underage boys. Cologne’s Regional Court took a controversial stance by establishing circumcision’s criminality in order to protect a child’s right to bodily integrity, and restricting a parent’s right to circumcise any minor.1

The Beschneidung (‘circumcision’) ruling from 05.07.2012 involves a mother who took her 4 year old son to the emergency room due to continual bleeding two days after his circumcision.2  The German State criminally charged the Islamic doctor with mutilation with a dangerous tool.3  He was not convicted of mutilation, nor causing serious physical injury, as he performed the act with a non-dangerous tool and parental consent. Because the doctor could not reasonably have known his act was illegal, the court clarified circumcision’s criminality to eliminate repetition of this ‘ignorance’ defense.5  This case highlighted the criminal nature of underage male circumcision, yet excused the doctor because the law, as written, was too vague to enforce.6, 7

Circumcision’s irreversible and permanent bodily mutilation violated the Penal Code and infringed on the boy’s religious right to freely choose a faith.

The ancient tradition of circumcision symbolizing a right of passage was first depicted about 4,300 years ago by Egypt’s 6th dynasty, which several modern faiths and secular societies customarily still follow as a right of passage.8  In Cologne’s circumcision case, the parents and doctor claimed that they were performing the customary act of circumcision that was in accord with their Islamic beliefs and Sharia law.9

Similar to Germany, freedom to act according to religious beliefs is limited in the United States’ secular legal system. United States courts hold that secular laws are superior to any professed religious doctrine.10  Thus, the religious freedom to act is restricted when the act unduly infringes on an individual’s protected freedom and meets due process 14th amendment requirements of a state interest.11  For example, in Reynolds v. U.S., the United States Supreme Court dealt with the ancient practice of polygamy, stating that it infringed on the rights of the individual family members and the state’s interest in limiting unlawful acts due to one’s faith.12  This exemplifies the United States’ historical restriction on religious actions that violate individual’s rights and the state’s Penal Code, while still not infringing on an individual’s right to a belief.

Similarly, Cologne’s lower and regional courts held that the right of the parents to act on religious beliefs was inferior to the underage child’s right to physical integrity, regardless of the child’s inability to give consent to being circumcised.13  The Regional Court stipulated that circumcision’s irreversible and permanent bodily mutilation violated the Penal Code and infringed on the boy’s religious right to freely choose a faith.14  Despite adamantly requesting legislation to clarify the law, the court highlighted that only medically necessary circumcisions shall be performed, as the best interest of the child overrules any parental religious interest.15  Interestingly, the child is free to undergo the operation on his own free will, once he reaches the state’s recognized legal maturity for consent or his secular right of passage is completed. However, the parents lack religious authority to force another to sacrifice innocent blood according to their beliefs.

While the medical necessity was the only exception for the courts, it seems that there are few proper medical excuses possible. Professor Holm Putzke shows that most medical experts in Europe found that circumcision has no medical benefits and only medical risks.16 This issue may have the courts ruling to ultimately ban circumcision of underage boys, since the medical necessity exception for boys is only allowed under exceptional circumstances resulting from medical need, not religious belief.

When is an archaic religious act really the foundation of a belief or merely a parent’s personal preference?
To clarify the Penal Code, most federal prosecutors of Germany are issuing statements clarifying their interpretation of the Penal Code’s § 223 (criminal assault) and § 224 (specific type of criminal assault e.g. mutilation endangering health).17  The southern state of Baden-Württemberg was the first to pass legislation allowing circumcision with proper medical procedures, while several states’ prosecutors, including Cologne’s jurisdiction, promised to not prosecute parents following proper medical circumcision procedures and some remained undecided awaiting clarification from Germany’s highest court in Karlsruhe, the Federal Constitutional Court.18

While the freedom of belief is paramount, forced defiling of an infant body along ancient customs, when it is not necessary and improperly performed, leaves the state with a significant interest to protect both the defenseless child’s well being and the child’s individual rights to choose a religion, and enforce its criminal law. Thus, parents have no right to request to circumcise any child, unless it should be a medically necessary and properly completed procedure. Cologne’s high court showed that any doctor performing a failed circumcision on an infant will likely be prosecuted for a criminal offense, as the general properly performed procedure is not to be prosecuted according to the prosecutors’ public statements. Still, the court may have inferred a general ban on circumcision, despite it being hard to enforce and overly intrusive.

Thus, the circumcision case seems to indicate a trend toward a partial ban on underage male circumcision in Germany. Many in the Judeo-Muslim community consider such a ban a grave persecution and a loss of religious freedom. However, when is an ancient religious act really the foundation of a belief or merely a parent’s personal preference? Many customs have become outmoded, once science establishes them as medically dangerous and courts as criminally violating human rights. The most obvious example is the ban on female circumcision, which is also considered a mutilating act by secular states and a loss of religious freedom under Sharia law. Still, it is up to the democratically elected government to decide what acts violate human rights and endanger future generation’s health, while the courts can only rule on established laws to protect the rights of individuals and deter those violating the secular state’s codes.

 


  1. LANDGERICHT KÖLN [REGIONAL COURT COLOGNE], May 07, 2012, Entscheidung des Nordrheinwestfalischen Obersten Landgerichts in Strafsachen [Decision of the Supreme District Court of North Rhine-Westphalia in Criminal Matters], 151 NRWOLGST, NS 169/11, (GER.), available at http://adam1cor.files.wordpress.com/2012/06/151-ns-169-11-beschneidung.pdf [hereinafter KÖLN Entscheidung]
  2. Id. at 4.
  3. Strafgesetzbuch [StGB] [Penal Code], 2011, § 223 paragraph 1, as amended, § 224 paragraph 1, 2d Ed. (Ger.).
  4. “Der Angeklagte handelte jedoch in einem unvermeidbaren Verbotsirrtum und damit ohne Schuld(§ 17 Satz 1 StGB).” KÖLN Entscheidung, supra 1, at 8.
  5. Id.
  6. Id.
  7. Strafgesetzbuch (StGB) [Penal Code] § 17 1st sentence (Ger.).
  8. DAVID L. GOLLAHER, CIRCUMCISION: A HISTORY OF THE WORLD’S MOST CONTROVERSIAL SURGERY, 3 (NEW YORK, BASIC BOOKS) (2000).
  9. KÖLN Entscheidung, supra note 1, at 5.
  10. Reynolds v. U.S., 98 U.S. 145 (1878).
  11. Id.
  12. Id.
  13. “[D]IE GRUNDRECHTE DER ELTERN AUS ARTIKEL 4 ABS. 1, 6 ABS. 2 GG WERDEN IHRERSEITS DURCH DAS GRUNDRECHT DES KINDES AUF KÖRPERLICHE UNVERSEHRTHEIT UND SELBSTBESTIMMUNG GEMÄß ARTIKEL 2 ABS.1 UND 2 SATZ 1 GG BEGRENZT.” Id. at 8.
  14. “ZUDEM WIRD DER KÖRPER DES KINDES DURCH DIE BESCHNEIDUNG DAUERHAFT UND IRREPARABEL VERÄNDERT. DIESE VERÄNDERUNG LÄUFT DEM INTERESSE DES KINDES SPÄTER SELBST ÜBER SEINE RELIGIONSZUGEHÖRIGKEIT ENTSCHEIDEN ZU KÖNNEN ZUWIDER.” KÖLN Entscheidung, supra note 1, at 7.
  15. Id.
  16. Holm Putzke, LG Köln fällt wegweisendes Urteil: Religiöse Beschneidungen von Jungen verboten, Legal Tribune ONLINE, (Oct 20, 2012), http://www.//lto.de/persistant/a_id/6472/.
  17. StGB § 223 and § 224, 3.
  18. Beschneidungsurteil irritiert, N-TV, (Oct. 19, 2012), http://ww.n-tv.de/politik/Beschneidungsurteil-irritiert-article6891101.html.