Germany's Circumcision Debate // The Backdrop

27th July 2012 - By now, some of you may have noticed that Germany is in the middle of a fully fledged debate on the issue of circumcision, the reason for which was a recently published court decision. As I have some experience with the difficulties of translating judicial issues between languages and judicial cultures, I figured it might be interesting for some of you to have a summary of what actually happened and what it is all about. And also: I think you all should care about this German debate - because it is far from over, and it may have serious repercussions.  (If you read German: Here is my research on the actual case the court decision was based on:

So first of all, here is what actually happened:

A court in cologne ruled, that a particular doctor (a surgeon by training) had actually committed a crime (causing bodily harm with an instrument) by circumcising a particular 4 year old boy. It should be added, that this decision was taken even though it was clear by testimony of an expert witness that the surgery itself was state of the art.

However, because the doctor couldn't possibly know that he committed a crime, given that no-one had ever been found guilty for circumcising anyone, he was not punished but acquitted.

In his ruling, the judge came to the conclusion that there were two fundamental rights to find a balance between: the child's right to physical integrity vs the parents' right to a) act in what they assume to be the child's best interest and b) their own (and somewhat by extension their child's) right to religious freedom. (It was undisputed that the circumcision in question didn't happen for medical but for religious reasons.) The judge decreed that the first mentioned weighed heavier.

This decision has in itself no consequences beyond the actual case. It is not a general ruling. Any other court in another city may come to another conclusion. (Except that, if another court came to come to the same conclusion, that other surgeon would probably not be acquitted because after the Cologne court's decision and its publicity any doctor could theoretically be assumed to have heard about its outcome.)

The immediate consequence of the publication of the verdict in this particular case was that large parts of the Muslim and Jewish community in Germany heavily criticized it. As I am sure you all know, Jews consider it a indispensable religious duty to circumcise any male newborn on the eight day. Muslims have a bit more freedom to maneuver here - in Germany it is usually done between the 7th and the 10th birthday I am told. But it is "only" considered advisable, not an immediate religious duty. However, most Muslims have their sons circumcised. (As, by the way, so do many parents' from Christian families.)

When I heard about the case, I started some research about how this case came about. Here are my findings in short:

* The kid in question is the some of an Iraqi family who live in East Germany. They knew a woman in Cologne who told them she knew a surgeon of Syrian origin who was known for his good circumcision skills.

* The mother went to Cologne with her son, They met with Dr Omar Kezze, a greed on a date for operation, and Dr Kezze circumcised the 4 year old on a Thursday in Nov 2010. The same evening he went to see the boy, who with his mother was living with their Cologne friend. Everything was fine. Dr Kezze asked the boy to come to his practice again on Saturday at 10 a.m., that is two days later. Just to be sure.

* On that Saturday, at 8 a.m., the boy's mother ran into the street and shouted, in Arabic (this is according to people who have seen the relevant documents which are sealed), that "my son is bleeding". It should be noted that the woman is heavily impaired as far as her eyes are concerned. It should also be noted that she ran into the street in an state that is described in court documents as "confused". I have not met her. I will pass judgment. But from what I understand (and from what another paper actually wrote about her) I assume that we are looking here at some sort of overreaction.

* Apparently an Arabic neighbor in that street heard her - and called the police and an ambulance. The family's host tried to get Dr Kezze to sort everything out, but everything happened very quickly from here on and the mother and the boy were brought to the emergency ward of the University Hospital.

* Here, the mother was asked to explain what happened. She hardly speaks any German. The doctor, according to my research, understood that she said her son had been circumcised "without anesthetics in a private home with a pair of scissors." The hospital alarmed the police who began an investigation.

* The investigation showed that the surgery had in fact been carried out by a surgeon in a practice with anesthetics. However, another doctor in the University Hospital voiced suspicion about the quality of the operation. He later withdrew these suspicions. But that was when the trial had already started.

* The police turned over the results of the investigation to the state attorney. That state attorney had to decide whether or not to charge Dr Kezze. She decided to do so. She also said it was a severe case because an instrument (a scalpel!) had been used.

* The first court acquitted Dr Kezze and said that he had not commuted a crime. The parents' right ti determine weighed heavier than the child's right to physical integrity.

* Said state attorney challenged that verdict and took it to the next higher court - with the known outcome.

So what we are looking at here is a very special case. In my personal opinion, it was not a case that was particularly inviting if you as a state attorney were seeking to make the case that circumcisions are a problem. But it happened none the less.

By now, the German government has made it clear they would like a solution for the obvious problem caused by this decision, namely that Jews and Muslims alike have to fear that they are asking a surgeon to commit a crime if the seek a circumcision for religious reasons. As was to be expected, the debate is heated: A child's right to physical integrity vs "old fashioned" and "outlived" religious duties is a feast for secularists and ultra-liberals.

In the end, it could be that the Supreme Court (Constitutional Court) will have to rule. My sense is that they would, eventually, grant parents the right to decide for a circumcision. Germany, of all countries in the world, simply can't afford to be known as he country where Jews can't live according to their religious duties. But in the mean time, the fight is on. And let me tell you: it really is a fight!

Good night. Y.

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