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Islam, Law and Modernity

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District Court of Cologne - Judgment of 7 May 2012 on male circumcision for religious reasons

(10 July 2012)

The District Court of Cologne (Germany) held on 7 May 2012 that the circumcision of a Muslim boy of the age of four constituted an unlawful offence of causing actual bodily harm and could not be justified by the consent of the boy's parents. The doctor performing the circumcision was acquitted, however, because the court conceded that he had acted under an unavoidable mistake of law due to the lack of unanimous opinion in the case law and literature at the time. The judgment is final. The decision has created an outrage among German Jewish and Muslim communities and will be debated for some time.

ILM is pleased to present the first English translation of the judgment with explanatory notes, to inform a wider audience.
 
(The translation was provided by a former German Erasmus student at Durham, Mr Alexander Aumüller, and edited by Professor Michael Bohlander.)

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The trial judgment preceding the appellate decision of the Landgericht Cologne can be found here.

The translation of that decision reads as follows:

Amtsgericht Cologne

Judgment

21 September 2011 - Docket no. 528 Ds 30/11

The defendant is acquitted.

The costs of the proceedings and the necessary expenses of the defendant shall be borne by public funds.

Grounds

The facts have been agreed as undisputed between the parties. In order to avoid duplication reference is made to the operative part of the admitted indictment.

Based on the hearing the charges could not be upheld with the certainty necessary for a conviction; the defendant had to be acquitted on grounds of law.

To begin with, it would appear to be irrelevant whether the operation, which according to the intelligible and thus convincing explanations of the expert witness Dr. L had been performed in a medically unimpeachable manner, is beyond the formal reach of the criminal law given the socially adequate behaviour of the defendant (or the persons in charge of the personal care of the child)(compare Thomas Exner, thesis on the topic: Sozialadäquanz im Strafrecht - Zur Knabenbeschneidung, in: Schriften zum Strafrecht, vol. 216, with further references).

In the view of this court, the elements of the offence of causing bodily harm are fulfilled by the operation, but the conduct is justified based on the valid consent of the parents of the child in the exercise of their right of personal care of the child, because it conformed to the “best interests of their child“ (s. 1627 BGB).

Bearing in mind the need for a properly balanced evaluation of the rights of the parents under Art. 6(2) 1st sentence GG and their right of religious freedom pursuant to Art. 4(1), (2) GG as well as that of the child to bodily integrity under Art. 2 GG (compare Exner, ibid., p. 27), it must firstly be emphasised that the circumcision as a traditional-ritual behaviour serves the documentation of a person’s cultural and religious belonging to  the Muslim community.

In the same way, it helps to avoid the threat of a stigmatisation of the child.

With regard to the child’s right to bodily integrity, it must not be overlooked that – as was also explained by the expert witness Dr. L – the circumcision possesses a high value from a medical point of view as a “prophylactic“ measure, in that the hygienic improvement brought about by the circumcision helps prevent, among others, potential cancer; this is an aspect particularly taken into account in the American and Anglo-Saxon world.

Given that the parents acted according to the required criteria, that their consent was valid and that the conduct of the defendant was thus justified, he had to be acquitted, with the attendant cost order to be made under s 467 StPO.

(Translation provided by Professor Michael Bohlander)

 

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