German court: Religious circumcision on minors is a crime

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Who is like God arbour
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German court: Religious circumcision on minors is a crime

Post by Who is like God arbour » Thu Jul 05, 2012 1:54 pm

Circumcision is the surgical removal of some or all of the foreskin (prepuce) from the penis. Estimates suggest that one-sixth to one-third of males worldwide are circumcised. In Judaism, it is considered a commandment from God and has to be done, when the child is 8 days old. In Islam, it is widely practiced and often considered to be sunnah, even though it is not mentioned in the Qur'an. It is also customary among Copts.

Now a German Court has ruled that a circumcision is a crime when done to a minor without medical indication.

From a BBC article:
                • German court rules circumcision is 'bodily harm'
          A court in Germany has ruled that circumcising young boys for religious reasons amounts to bodily harm.

          In a decision that has caused outrage among Jewish and Muslim groups, the court said that a child's right to physical integrity trumps religious and parental rights.

          The case involved a doctor who carried out a circumcision on a four year-old that led to medical complications.

          Thousands of Muslim and Jewish boys are circumcised in Germany every year.

          Although male circumcision - unlike female circumcision - is not illegal in Germany, the court's judgement said the "fundamental right of the child to bodily integrity outweighed the fundamental rights of the parents".

          Circumcision, it decided, contravenes "interests of the child to decide later in life on his religious beliefs".

          'Protect religious freedom'

          The doctor involved in the case was acquitted and the ruling is not binding, but correspondents say it sets a precedent that would be taken into account by other German courts.

          The president of Germany's Central Council of Jews, Dieter Graumann, called it "an unprecedented and dramatic intervention in the right of religious communities to self-determination".

          He urged the country's parliament to clarify the legal situation "to protect religious freedom against attacks".

          Male circumcision is part of the ancient religious rituals of both the Jewish and Muslim faiths, as well as the traditions of some tribal groups.

          In some countries, such as the United States, it is also not uncommon for parents to request that young boys are circumcised for health reasons.

          The BBC's Stephen Evans in Germany says it is unclear what the next legal step will be, but this issue is a moral and political minefield.





What are your thoughts?

Is a circumcision, done to a minor without medical indication, a crime?

Here are the relevant sections from the German Criminal Code [...]
                • Section 223 - Causing bodily harm
          1. Whosoever physically assaults or damages the health of another person, shall be liable to imprisonment of not more than five years or a fine.
          2. The attempt shall be punishable.
                • Section 224 - Causing bodily harm by dangerous means
          1. Whosoever causes bodily harm
              • 1. by administering poison or other noxious substances;
                2. by using a weapon or other dangerous instrument;
                3. by acting by stealth;
                4. by acting jointly with another; or
                5. by methods that pose a danger to life,
            shall be liable to imprisonment from six months to ten years, in less serious cases to imprisonment from three months to five years.
          2. The attempt shall be punishable.


                • Section 225 - Abuse of position of trust
          1. Whosoever tortures or seriously abuses or by maliciously neglecting his duty of care for a person damages the health of a person under eighteen years of age or a person who is defenceless due to frailty or illness and who
              • 1. is in his care or custody;
                2. belongs to his household;
                3. has been placed under his control by the person obliged to provide care; or
                4. is subordinated to him within a relationship of employment,
            shall be liable to imprisonment from six months to ten years.
          2. The attempt shall be punishable.
          3. The penalty shall be imprisonment of not less than one year if the offender places the person in danger of
              • 1. death or serious injury; or
                2. a substantial impairment of his physical or mental development.
          4. In less serious cases under subsection 1 above the penalty shall be imprisonment from three months to five years, in less serious cases under subsection 3 above imprisonment from six months to five years.


                • Section 226 - Causing grievous bodily harm
          1. If the injury results in the victim
              • 1. losing his sight in one eye or in both eyes, his hearing, his speech or his ability to procreate;
                2. losing or losing permanently the ability to use an important member;
                3. being permanently and seriously disfigured or contracting a lingering illness, becoming paralysed, mentally ill or disabled,
            the penalty shall be imprisonment from one to ten years.
          2. If the offender intentionally or knowingly causes one of the results indicated in subsection 1 above the penalty shall be imprisonment of not less than three years.
          3. In less serious cases under subsection 1 above the penalty shall be imprisonment from six months to five years, in less serious cases under subsection 2 above imprisonment from one to ten years.
and from the Basic Law for the Federal Republic of Germany
                • Article 1 - Human dignity
          1. Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
          2. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
          3. The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.

                • Article 2 - Personal freedoms
          1. Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.
          2. Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.

                • Article 4 - Freedom of faith, conscience, and creed
          1. Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.
          2. The undisturbed practice of religion shall be guaranteed.
          3. No person shall be compelled against his conscience to render military service involving the use of arms. Details shall be regulated by a federal law.
Are the rights to religious freedom from the parents violated?

Are the rights to physical integrity and religious freedom from the minor protected?

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Re: German court: Religious circumcision on minors is a crim

Post by Praeothmin » Thu Jul 05, 2012 3:16 pm

In that case, any oral surgery, such as done in dentistry, is also a crime, as in some rare cases, it can lead to medical complications...

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Re: German court: Religious circumcision on minors is a crim

Post by Mr. Oragahn » Thu Jul 05, 2012 11:16 pm

Oral surgery, yes, if it isn't necessary. But the necessity part is a variable.
Obviously, if your root is rotting, a removal is advised.
Are we responsible of the silly rituals held by age old religions though? I'd rather have the kids keep their fleshy hide.

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Re: German court: Religious circumcision on minors is a crim

Post by Praeothmin » Fri Jul 06, 2012 12:03 pm

Yeah, you're right...
I still think it's stupid, but my argument wasn't good...

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German court: Religious circumcision on minors is a crim

Post by Who is like God arbour » Fri Jul 06, 2012 7:41 pm

  • Mr. Oragahn, why do you'd rather have the kids keep their fleshy hide?
          • Doesn't a prohibition of religious circumcision (without medical indication) violate the right to religious freedom from the parents?


    Praeothmin, why do you think, the decision of the German court is stupid?
          • Doesn't a religious circumcision (without medical indication) violate the rights to physical integrity and religious freedom from the minor?


    Has anybody else an opinion concerning that issue?

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Re: German court: Religious circumcision on minors is a crim

Post by Praeothmin » Fri Jul 06, 2012 8:13 pm

A religious circumcision, if done correctly, like 99% of the circumcisions are, has no ill effect on the kid's life, and franckly, won't keep him from experiencing any of life's pleasures...
His religion will...
As a matter of fact, getting circumcised means you will last longer in bed, and since the skin or your penis head becomes denser to compensate for the constant rubbing and contact, your are better protected against STDs...
And seriously, what kids below 4 actually give a damn about that part of them anyways?

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Re: German court: Religious circumcision on minors is a crim

Post by Mr. Oragahn » Fri Jul 06, 2012 8:49 pm

WILGA wrote:
Mr. Oragahn, why do you'd rather have the kids keep their fleshy hide?
Doesn't a prohibition of religious circumcision (without medical indication) violate the right to religious freedom from the parents?
First, can you please stop using those
  • tags? It's neither necessary nor practical when replying to you.
    Secondly, I don't care about religious freedom at all. Freedom about anything stupid is opening the door to any kind of mediocrity. That's a country that is not and never was meant to be a free for all bullshit land where any kind of retarded barbaric custom could be practiced at will.
    If these religious guys ain't happy, nothing forces them to stay. It's not like anything forced them to come at first, especially those silly jooz who kept getting kicked out of Europe god knows how many times, but still never got it and kept coming back for more arse kicking (until, you know, they kinda pissed the whole country and things went sour).
    At some point, I'm glad that there still are some people in Germany capable of remembering that as there's plenty of place on Earth for the others, Europe could at least remain faithful to its cultural roots, if it's not asking for too much.
Last edited by Mr. Oragahn on Sun Jul 08, 2012 10:57 am, edited 1 time in total.

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Re: German court: Religious circumcision on minors is a crim

Post by Mr. Oragahn » Fri Jul 06, 2012 8:59 pm

Praeothmin wrote:A religious circumcision, if done correctly, like 99% of the circumcisions are, has no ill effect on the kid's life, and franckly, won't keep him from experiencing any of life's pleasures...
His religion will...
As a matter of fact, getting circumcised means you will last longer in bed, and since the skin or your penis head becomes denser to compensate for the constant rubbing and contact, your are better protected against STDs...
And seriously, what kids below 4 actually give a damn about that part of them anyways?
Let me guess, anyone who actually doesn't dig suffering like hell (the prepuce is the most sensitive external region of the body alongside the eyelids and ear lobes I think) and being uselessly butchered, no matter the age?
Have you ever watched at least one of those things on video? It's beyond disgusting.
Only stupid primitive people do such things. In other countries, they even push the envelope (haha) farther and in some forms of circumcision they slit the penis' skin from the base near the testes to the tip. Yeah, banana split style.

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Re: German court: Religious circumcision on minors is a crim

Post by Cocytus » Sat Jul 07, 2012 12:02 am

Praeothmin wrote:A religious circumcision, if done correctly, like 99% of the circumcisions are, has no ill effect on the kid's life, and franckly, won't keep him from experiencing any of life's pleasures...
His religion will...
As a matter of fact, getting circumcised means you will last longer in bed, and since the skin or your penis head becomes denser to compensate for the constant rubbing and contact, your are better protected against STDs...
And seriously, what kids below 4 actually give a damn about that part of them anyways?
And when they turn five.....?

But to use your logic that it provides benefits, why don't we simply apply that across the board. The tonsils, the spleen, the appendix, etc. There are a lot of organs we don't really need, whose existence in fact exposes us to potentially life-threatening infections. Why don't we have them all out at birth. The child won't know the difference.

(Edit): I'm still thinking this over, clearly. There's obviously a difference between removing the foreskin and invasive surgery. But you're forcing the infant to endure considerable pain for exactly what reason? It's proponents throw out all sorts of reasons. Cleanliness? Take a shower once in a while. Reducing the risk of HIV transmission? Get tested and know your status. Wear condoms. Make your partner wear a condom. These are things all responsible sexually active adults should do. There are various studies which suggest possible cancer risk reduction for infant circumcision, which is about the only benefit I've been able to find which can't be replicated through other means.

(Edit: the stuff below is not directed at you, Praeothmin.)

I'm a little mixed about this decision, really. I find the practice revolting, but my personal preference is wholly irrelevant. Good and just laws are based upon logic and reason and a robust, uncompromising respect for the inalienable rights of individuals, not raw, untempered emotion. In the end, what we're left with is this: The rights of religious parents to raise their children as they see fit vs. the rights of children to be secure in their persons. I find myself on the side of the children here. I'm generally very suspicious and disdainful of laws made "to protect children," since the lying hypocrites who push them are doing little more than using children as meat shields to distract from their efforts to force their agenda on others. Children are simply the means to their end. In this case, however, there is clearly a violation of the rights of the child, which are being subjugated to the rights of a religious collective. In fact, we remain one of only three UN members that have not ratified the UN Convention on the Rights of the Child. The other two? South Sudan and Somalia. Yes, that haven of terrorists and pirates. What illustrious company we share. I'm always amazed. Go anywhere in the Southern US you'll see giant billboards obnoxiously proclaiming "free will" and "individualism." Religion is not, and has never, been about either. Religion is about collective identity and hive mindedness. The irony of that is, given that it's logically impossible to live according to the entire Bible (or Torah, or Koran or whatever; they're all riddled with contradictions) every Christian is a Cafeteria Christian.

I'm rambling a bit here. But it seems to me religious complaints often boil down to simply "it's oppressive to tell us we can't oppress." Someone telling you how they're going to live their life is not oppressive. You telling them how they're going to life their life is. And as regards circumcision, there's a clear difference between raising a child (which requires both guidance and authority to ensure his own benefit e.g. becoming a law-abiding, productive member of society) and removing a piece of a child (which serves no interest other than your own. And don't give me the HIV line. Condoms and testing are readily available, in some cases for free.) A child can determine for himself whether or not to be circumcised (and thus fully inducted into your religious identity) when he turns 18. Or make a law allowing the child to give consent to that particular procedure at a younger age. Tell them how you want to save their souls, how you want them to be Just Like You. Tell them what the procedure entails, and show them a video of one being performed. See how many opt for it.

And yes, I get the hypocrisy of supporting abortion (even though I've come to support banning late-term and partial birth) while condemning circumcision, as any conservative should get the hypocrisy of supporting circumcision while condemning abortion. It's hypocritical either way, whether you frame the argument as being about feeling pain, the rights of children, or the rights of parents. What then would be a consistent position regarding these procedures? Ban both? Allow both?

You want to do it? In the US at least, there's currently no law against it provided its done according to procedure and proper parental consent is attained. If your children decide to sue you later in life though, don't bitch.

(Edit): All these edits. Yes, this decision is a hard one for me.

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Re: German court: Religious circumcision on minors is a crim

Post by Mr. Oragahn » Sat Jul 07, 2012 9:48 am

Cocytus wrote: Good and just laws are based upon logic and reason and a robust, uncompromising respect for the inalienable rights of individuals, not raw, untempered emotion.
No. It's laws which define those "rights", not the opposite. For example, the rights to steal or to kill.
Those laws are assembled on the basis of opinions of *some* people, no more, no less. And eventually some of them claim getting their opinions/laws from religious sources.

On the rest of what you said, I agree. I do have issues with the acts of some nosy-parkers, but laws also are part of what gives your civilization a spirit. There are times, rules are needed. Even when they're not carved in stone, people tend to develop oral laws and other lists of things to do or not to do.

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Re: German court: Religious circumcision on minors is a crim

Post by Who is like God arbour » Sat Jul 07, 2012 2:41 pm

Here is the decision in German:
        • Landgericht Köln, 151 Ns 169/11
          Datum: 07.05.2012
          Gericht: Landgericht Köln
          Spruchkörper: 1. kleine Strafkammer
          Entscheidungsart: Urteil
          Aktenzeichen: 151 Ns 169/11

          Vorinstanz: Amtsgericht Köln, 528 Ds 30/11
          Rechtskraft: rechtskräftig

          Tenor:

          Die Berufung der Staatsanwaltschaft gegen das Urteil des Amtsgerichts Köln vom 21.09.2011 wird verworfen.

          Die Staatskasse trägt die Kosten des Verfahrens und die dem Angeklagten entstandenen notwendigen Auslagen.


          G r ü n d e :

          I.

          Die Staatsanwaltschaft Köln wirft dem Angeklagten vor, am 04.11.2010 in Köln eine andere Person mittels eines gefährlichen Werkzeugs körperlich misshandelt und an der Gesundheit geschädigt zu haben (§§ 223 Abs. 1, 224 Abs. 1 Nr. 2, Alternative 2 StGB):

          Am 04.11.2010 führte der Angeklagte in seiner Praxis in der S-Straße in Köln unter örtlicher Betäubung die Beschneidung des zum Tatzeitpunkt vierjährigen K1 mittels eines Skalpells auf Wunsch von dessen Eltern durch, ohne dass für die Operation eine medizinische Indikation vorlag. Er vernähte die Wunden des Kindes mit vier Stichen und versorgte ihn bei einem Hausbesuch am Abend desselben Tages weiter. Am 06.11.2010 wurde das Kind von seiner Mutter in die Kindernotaufnahme der Universitätsklinik in Köln gebracht, um Nachblutungen zu behandeln. Die Blutungen wurden dort gestillt.

          Das Amtsgericht Köln hat den Angeklagten mit Urteil vom 21.09.2011 (528 Ds 30/11) auf Kosten der Staatskasse freigesprochen. Gegen dieses Urteil hat die Staatsanwaltschaft Köln form- und fristgerecht Berufung eingelegt. Das Rechtsmittel hatte im Ergebnis keinen Erfolg.

          II.

          Der Vorwurf der Staatsanwaltschaft hat sich in tatsächlicher Hinsicht in der Hauptverhandlung bestätigt. Der Angeklagte hat das äußere Geschehen in vollem Umfange eingeräumt. Ergänzend hat die Kammer festgestellt, dass die Familie des Kindes dem islamischen Glauben angehört. Der Angeklagte führte die Beschneidung aus religiösen Gründen auf Wunsch der Eltern durch. Aufgrund des von der Kammer eingeholten Sachverständigengutachtens steht fest, dass der Angeklagte fachlich einwandfrei gearbeitet hat. Ein Behandlungsfehler liegt nicht vor. Außerdem besteht – so der Sachverständige – jedenfalls in Mitteleuropa keine Notwendigkeit Beschneidungen vorbeugend zur Gesundheitsvorsorge vorzunehmen.

          III.

          Der Angeklagte war aus rechtlichen Gründen freizusprechen.

          Der äußere Tatbestand von § 223 Abs. 1 StGB ist erfüllt. Nicht erfüllt sind die Voraussetzungen von § 224 Abs. 1 Nr. 2, Alternative 2 StGB. Das Skalpell ist kein gefährliches Werkzeug im Sinne der Bestimmung, wenn es - wie hier - durch einen Arzt bestimmungsgemäß verwendet wird (vgl. BGH NJW 1978, 1206; NStZ 1987, 174).

          Die aufgrund elterlicher Einwilligung aus religiösen Gründen von einem Arzt ordnungsgemäß durchgeführte Beschneidung eines nicht einwilligungsfähigen Knaben ist nicht unter dem Gesichtspunkt der sogenannten "Sozialadäquanz" vom Tatbestand ausgeschlossen. Die Entwicklung der gegenteiligen Auffassung durch Exner (Sozialadäquanz im Strafrecht - Zur Knabenbeschneidung, Berlin 2011, insbesondere Bl. 189 f.) überzeugt nicht. Die Eltern bzw. der Beschneider sollen demnach nicht über § 17 StGB entschuldigt sein. Der Veranlassung der Beschneidung durch die Eltern soll auch keine rechtfertigende Wirkung zukommen, da dem Recht der Eltern auf religiöse Kindererziehung in Abwägung zum Recht des Kindes auf körperliche Unversehrtheit und auf Selbstbestimmung kein Vorrang zukomme, so dass mit der Einwilligung in die Beschneidung ein Widerspruch zum Kindeswohl festzustellen sei. Gleichwohl soll der gegen das Kindeswohl verstoßende und nicht entschuldigte Vorgang sozial unauffällig, allgemein gebilligt und geschichtlich üblich und daher dem formellen Strafbarkeitsverdikt entzogen sein.

          Nach richtiger Auffassung kommt der Sozialadäquanz neben dem Erfordernis tatbestandspezifischer Verhaltensmissbilligung keine selbstständige Bedeutung zu. Die Sozialadäquanz eines Verhaltens ist vielmehr lediglich die Kehrseite dessen, dass ein rechtliches Missbilligungsurteil nicht gefällt werden kann. Ihr kommt nicht die Funktion zu, ein vorhandenes Missbilligungsurteil aufzuheben (vgl. Freund in: Münchener Kommentar zum StGB, 2. Aufl., vor §§ 13 ff. Rn. 159; im Ergebnis ebenso: Fischer, StGB, 59. Aufl., § 223 Rn. 6 c, anders noch bis zur 55. Aufl., § 223 Rnr. 6 b; wie hier ferner: Herzberg, JZ 2009, 332 ff.; derselbe Medizinrecht 2012, 169 ff.; Putzke NJW 2008, 1568 ff.; Jerouschek NStZ 2008, 313 ff.; a.A. auch: Rohe JZ 2007, 801, 802 und Schwarz JZ 2008, 1125 ff.).

          Die Handlung des Angeklagten war auch nicht durch Einwilligung gerechtfertigt. Eine Einwilligung des seinerzeit vierjährigen Kindes lag nicht vor und kam mangels hinreichender Verstandesreife auch nicht in Betracht. Eine Einwilligung der Eltern lag vor, vermochte indes die tatbestandsmäßige Körperverletzung nicht zu rechtfertigen.

          Gemäß § 1627 Satz 1 BGB sind vom Sorgerecht nur Erziehungsmaßnahmen gedeckt, die dem Wohl des Kindes dienen. Nach wohl herrschender Auffassung in der Literatur (vgl. Schlehofer in: Münchener Kommentar zum StGB, 2. Aufl., vor §§ 32 ff. Rn. 43; Lenckner/Sternberg-Lieben in: Schönke/Schröder, StGB, 28. Aufl., vor §§ 32 ff. Rn. 41; Jerouschek NStZ 2008, 313, 319; wohl auch Exner a.a.O.; Herzberg a.a.O.; Putzke a.a.O.) entspricht die Beschneidung des nicht einwilligungsfähigen Knaben weder unter dem Blickwinkel der Vermeidung einer Ausgrenzung innerhalb des jeweiligen religiös gesellschaftlichen Umfeldes noch unter dem des elterlichen Erziehungsrechts dem Wohl des Kindes. Die 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. Das Ergebnis folgt möglicherweise bereits aus Artikel 140 GG i.V.m. Artikel 136 Abs. 1 WRV, wonach die staatsbürgerlichen Rechte durch die Ausübung der Religionsfreiheit nicht beschränkt werden (so: Herzberg JZ 2009, 332, 337; derselbe Medizinrecht 2012, 169, 173). Jedenfalls zieht Artikel 2 Abs. 2 Satz 1 GG selbst den Grundrechten der Eltern eine verfassungsimmanente Grenze. Bei der Abstimmung der betroffenen Grundrechte ist der Verhältnismäßigkeitsgrundsatz zu beachten. Die in der Beschneidung zur religiösen Erziehung liegende Verletzung der körperlichen Unversehrtheit ist, wenn sie denn erforderlich sein sollte, jedenfalls unangemessen. Das folgt aus der Wertung des § 1631 Abs. 2 Satz 1 BGB. 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. Umgekehrt wird das Erziehungsrecht der Eltern nicht unzumutbar beeinträchtigt, wenn sie gehalten sind abzuwarten, ob sich der Knabe später, wenn er mündig ist, selbst für die Beschneidung als sichtbares Zeichen der Zugehörigkeit zum Islam entscheidet (zu den Einzelheiten vgl.: Schlehofer a.a.O.; a.A. im Ergebnis Fischer, 59. Aufl., § 223 Rn. 6 c; inzident wohl auch: OLG Frankfurt NJW 2007, 3580; OVG Lüneburg NJW 2003, 3290; LG Frankenthal Medizinrecht 2005, 243, 244; ferner Rohe JZ 2007, 801, 802 jeweils ohne nähere Erörterung der Frage). Schwarz (JZ 2008, 1125, 1128) bewertet die Einwilligung unter Berücksichtigung verfassungsrechtlicher Kriterien als rechtfertigend, er geht jedoch nur auf die Elternrechte aus Artikel 4 und 6 GG, nicht hingegen – was notwendig wäre - auf die eigenen Rechte des Kindes aus Artikel 2 GG ein. Seine Auffassung kann schon aus diesem Grunde nicht überzeugen.

          Der Angeklagte handelte jedoch in einem unvermeidbaren Verbotsirrtum und damit ohne Schuld (§ 17 Satz 1 StGB).

          Der Angeklagte hat, das hat er in der Hauptverhandlung glaubhaft geschildert, subjektiv guten Gewissens gehandelt. Er ging fest davon aus, als frommem Muslim und fachkundigem Arzt sei ihm die Beschneidung des Knaben auf Wunsch der Eltern aus religiösen Gründen gestattet. Er nahm auch sicher an sein Handeln sei rechtmäßig.

          Der Verbotsirrtum des Angeklagten war unvermeidbar. Zwar hat sich der Angeklagte nicht nach der Rechtslage erkundigt, das kann ihm hier indes nicht zum Nachteil gereichen. Die Einholung kundigen Rechtsrates hätte nämlich zu keinem eindeutigen Ergebnis geführt. Ein unvermeidbarer Verbotsirrtum wird bei ungeklärten Rechtsfragen angenommen, die in der Literatur nicht einheitlich beantwortet werden, insbesondere wenn die Rechtslage insgesamt sehr unklar ist (vgl. Joecks in: Münchener Kommentar zum StGB, 2. Aufl., § 17 Rn. 58; Vogel in: Leipziger Kommentar zum StGB, 12. Aufl., § 17 Rn. 75; BGH NJW 1976, 1949, 1950 zum gewohnheitsrechtlichen Züchtigungsrecht des Lehrers bezogen auf den Zeitraum 1971/1972). So liegt der Fall hier. Die Frage der Rechtmäßigkeit von Knabenbeschneidungen aufgrund Einwilligung der Eltern wird in Rechtsprechung und Literatur unterschiedlich beantwortet. Es liegen, wie sich aus dem Vorstehenden ergibt, Gerichtsentscheidungen vor, die, wenn auch ohne nähere Erörterung der wesentlichen Fragen, inzident von der Zulässigkeit fachgerechter, von einem Arzt ausgeführter Beschneidungen ausgehen, ferner Literaturstimmen, die sicher nicht unvertretbar die Frage anders als die Kammer beantworten.

          IV.

          Die Kostenentscheidung folgt aus § 473 Abs. 1 StPO.

and a translation into English:
        • COLOGNE REGIONAL COURT (LANDGERICHT)
          IN THE NAME OF THE PEOPLE
          JUDGMENT

          Wa.
          151 Ns 169/11
          In the criminal matter
          Defendant: Dr. K.,
          date of birth:
          address:
          for medical matters and criminal offences under the Non-Medical Practitioners Act (Heilpraktikergesetz)
          In response to the appeal of the public prosecutor's department against the judgment of the judge in Cologne of 21.09.2011, the First Minor Criminal Division of Cologne Regional Court in the hearing of 07.05.2012, sitting with the following persons:
          Presiding Regional Court Judge
          Herr Beenken
          as presiding judge,
          Bernd Boettcher, postal service,
          Hans-Jürgen Neuenfeldt, post office clerk,
          both as lay judges,
          Public prosecutor Frau Müller
          as the representative of the public prosecutor's department,
          Court employee Frau Kuhlemann
          as clerk of the Court Office,
          held as follows:


          The appeal on points of fact and law of the public prosecutor's department against the judgment of Cologne Local Court (Amtsgericht) of 21.09.2011 is dismissed.

          The costs of the proceedings and the necessary expenses incurred by the defendant shall be borne by the public treasury.
          Grounds:

          I.

          The public prosecutor's department charges that the defendant, in Cologne on 04.11.2010, physically mistreated another person and injured that person's health by means of a dangerous instrument (sections 223 (1), 224 (1) no. 2, second alternative, Criminal Code (Strafgesetzbuch, StGB):
          On 04.11.2010, in his practice in ..........in Cologne, the defendant under local anaesthetic carried out the circumcision of ........... J., who at the time of the act was four years old, using a scalpel, at the wish of J.'s parents, although there was no medical indication for the operation. The defendant sewed up the child's wounds with four stitches and gave the child further treatment on a house call on the evening of the same day. On 06.11.2010 the child was taken by his mother to the children's casualty department of Cologne University Hospital in order for post-operative bleeding to be treated. The bleeding was stopped there.

          Cologne Local Court acquitted the defendant in its judgment of 21.09.2011 (528 Ds 30/11) at the cost of the public treasury. The Cologne public prosecutor's department appealed against this judgment in due form and time. The appeal was unsuccessful.

          II.

          In the trial, the factual basis of the charge made by the public prosecutor's department was confirmed. The defendant admitted the events in full. In addition, the court established that the child's family is of the Islamic faith. The defendant carried out the circumcision for religious reasons at the wish of the parents. It is clear on the basis of the expert witness's report obtained by the court that the defendant's work was clinically free of defects. There was no error in treatment. In addition, according to the expert witness, in Central Europe, at all events, there is no need to carry out circumcisions as a preventative measure.

          III.

          For legal reasons, the defendant was acquitted.

          The actus reus of section 223 (1) StGB is fulfilled. The requirements of section 224 (1) no. 2, second alternative StGB are not fulfilled. The scalpel is not a dangerous instrument within the meaning of the provision if - as here - it is used by a doctor in accordance with its intended use (...)
          The circumcision of a boy unable to give medical consent, correctly performed by a doctor for religious reasons with the consent of the parents, is not excluded from the definition of the offence on the basis of what is known as "social adequacy". Exner (...) has developed a contrary view, but this is unconvincing. In this view, the parents and/or the circumciser are not excused under section 17 StGB. Exner also considers that the occasioning of the circumcision by the parents has no effect of justification, since the parents' right to religious upbringing of their children, when weighed against the right of the child to physical integrity and to self-determination, has no priority, and consequently their consent to the circumcision conflicts with the child's best interests. Nevertheless, the action, which violates the child's best interests and is not excused, is socially inconspicuous, generally accepted and customary in history, is therefore removed from being formally determined as criminal.

          In the correct view, social adequacy has no independent significance in addition to the requirement for the disapproval of conduct to be part of the definition of the offence. Instead, the social adequacy of conduct is merely the reverse of the fact that it is impossible to pass a legal judgment of disapproval. It does not have the function of cancelling an existing judgment of disapproval (...)

          Nor was the defendant's act justified by consent. There was no consent by the child, who was four years old at the time, and since the child was not old enough to understand the situation, there was no question of such consent being given. There was consent by the parents, but this was not capable of justifying the commission of the elements of bodily harm.

          Under section 1627 sentence 1 of the Civil Code (Bürgerliches Gesetzbuch, BGB), custody only covers measures of upbringing which serve the best interests of the child. Under what is probably the prevailing view in the literature (... ), the circumcision of a boy who is not capable of giving consent is not in the best interests of the child, either under the aspect of avoiding exclusion within the relevant religious and social environment or under the aspect of the parents' right of upbringing. The parents' fundamental rights under Article 4 (1), 6 (2) of the Basic Law (Grundgesetz, GG) in turn are limited by the fundamental right of the child to physical integrity and self-determination under Article 2 (1) and (2) sentence 1 GG. It is possible that the result even follows from Article 140 GG in conjunction with Article 136 (1) Weimar Constitution (Weimarer Reichsverfassung), which provides that citizens' rights are not limited by the exercise of the freedom of religion (...). At all events, Article 2 (2) sentence 1 GG itself places a limit inherent in the Basic Law on the fundamental rights of the parents. When the fundamental rights affected are weighed, account must be taken of the principle of proportionality. Circumcision for the purpose of religious upbringing constitutes a violation of physical integrity, and if it is actually necessary, it is at all events unreasonable. This follows from the evaluation of section 1631 (2) sentence 1 BGB. In addition, the child's body is permanently and irreparably changed by the circumcision. This change conflicts with the child's interest of later being able to make his own decision on his religious affiliation. Conversely, the parents' right of upbringing is not unreasonably adversely affected if they are required to wait to find out if the boy later, when he is of age, decides himself to be circumcised as a visible sign of his affiliation to Islam. (...) Schwarz (...) sees the consent, taking account of criteria of constitutional law, as constituting justification, but he only considers the parental rights under Articles 4 and 6 GG, but not - as is necessary - the child's own rights under Article 2 GG. For this reason alone, his opinion is not convincing.

          But the defendant acted under an unavoidable mistake as to the wrongful nature of the act, and thus without criminal liability (section 17 sentence 1 StGB).

          The defendant acted subjectively in good conscience, as he credibly showed in the hearing. He firmly assumed that as a devout Muslim and a skilled doctor he was permitted to carry out the circumcision of the boy at the wish of the parents for religious reasons. He will also certainly have assumed that his actions were lawful.

          The defendant's mistake as to the law was unavoidable. It is true that the defendant did not enquire as to the legal position, but in this case this cannot be held against him. For obtaining informed legal advice would not have resulted in a clear result. In the case of undecided questions of law which are not unanimously decided in the literature, especially when the legal position as a whole is very unclear, an unavoidable mistake of law is assumed to apply (...) This is the case here. The question of the lawfulness of circumcisions of boys on the basis of the consent of their parents is answered differently in case law and the literature. As is shown by the above remarks, there are court decisions which, albeit without discussing the essential questions in more detail, at the same time proceed on the basis that skilled circumcisions carried out by a doctor are permissible, and also opinions in the literature which answer the question differently from this court, and certainly not without justification.

          IV.

          The decision on costs is based on section 473 (1) Code of Criminal Procedure (Strafprozessordnung).
                • Translation by Margaret Marks, transblawg.eu
                  Translator’s note: large numbers of references to the literature have been omitted and marked ‘...’

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Re: German court: Religious circumcision on minors is a crim

Post by sonofccn » Sat Jul 07, 2012 6:46 pm

Might as well throw my two cents in. I think this ruling is stupid and wrong headed. If there was a clear and present danger to the child that would be one thing but as it is it cuts against religious freedom as well as the simple right of a family to raise its offspring. Someone elses child isn't my own I have no right to essentially tell them how to raise their child barring physical or clear mental threats to their well being which the procedure in question does not fall under.

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Re: German court: Religious circumcision on minors is a crim

Post by Who is like God arbour » Sat Jul 07, 2012 9:02 pm

As I see it, often times the circumcision on infants is regarded as a minor surgery.

But is this really the truth?


        • The psychological impact of circumcision:
                • [...]

                  Conclusion

                  There is strong evidence that circumcision is overwhelmingly painful and traumatic. Behavioural changes in circumcised infants have been observed 6 months after the circumcision. The physical and sexual loss resulting from circumcision is gaining recognition, and some men have strong feelings of dissatisfaction about being circumcised.

                  The potential negative impact of circumcision on the mother-child relationship is evident from some mothers' distressed responses and from the infants' behavioural changes. The disrupted mother-infant bond has far-reaching developmental implications and may be one of the most adverse impacts of circumcision.

                  Long-term psychological effects associated with circumcision can be difficult to establish because the consequences of early trauma are only rarely, and under special circumstances, recognizable to the person who experienced the trauma. However, lack of awareness does not necessarily mean that there has been no impact on thinking, feeling, attitude, behaviour and functioning, which are often closely connected. In this way, an early trauma can alter a whole life, whether or not the trauma is consciously remembered.

                  Defending circumcision requires minimizing or dismissing the harm and producing overstated medical claims about protection from future harm. The ongoing denial requires the acceptance of false beliefs and misunderstandings of facts. These psychological factors affect professionals, members of religious groups and parents involved in the practice. Cultural conformity is a major force perpetuating non-religious circumcision, and to a greater degree, religious circumcision. The avoidance of guilt and the reluctance to acknowledge the mistake and all that that implies help to explain the tenacity with which the practice is defended.

                  Whatever affects us psychologically also affects us socially. If a trauma is acted out on the next generation, it can alter countless generations until it is recognized and stopped. The potential social consequences of circumcision are profound. There has been no study of these issues perhaps because they are too disturbing to those in societies that do circumcise and of little interest in societies that do not. Close psychological and social examination could threaten personal, cultural and religious beliefs of circumcising societies. Consequently, circumcision has become a political issue in which the feelings of infants are unappreciated and secondary to the feelings of adults, who are emotionally invested in the practice.

                  Awareness about circumcision is changing, and investigation of the psychological and social effects of circumcision opens a valuable new area of inquiry. Researchers are encouraged to include circumcision status as part of the data to be collected for other studies and to explore a range of potential research topics. Examples of unexplored areas include testing male infants, older children and adults for changes in feelings attitudes and behaviours (especially antisocial behaviour); physiological, neurological and neurochemical differences; and sexual and emotional functioning.


          Acetaminophen analgesia in neonatal circumcision: The effect on pain:
                • [...]

                  Conclusion

                  This study confirms that circumcision of the newborn causes severe and persistent pain. Acetaminophen was not found to ameliorate either the intra-operative or the immediate postoperative pain of circumcision, although it seems that it may provide some benefit after the postoperative period.


          Topical Anesthesia During Circumcision in Newborn Infants:
                • [...]

                  Conclusion

                  Circumcision procedure produces pain responses that EMLA diminishes. Thus, EMLA may be a useful agent for pain management in neonatal circumcision.


          Coping with Aversive Stimulation in the Neonatal Period: Quiet Sleep and Plasma Cortisol Levels during Recovery from Circumcision:
                • Measures of behavioral state and plasma cortisol were obtained on 80 healthy, full-term, 2-3-day-old, male newborns who were scheduled to be circumcised. To establish baseline or precircumcision levels, the newborns were observed, and behavioral state was recorded for the half hour prior to circumcision. Blood was sampled via heelstick for plasma cortisol determination at the end of the observation period. The newborns were then circumcised and assigned randomly to one of 4 postcircumcision time-point groups. The time points were 30, 90, 120, and 240 min following the beginning of circumcision. Behavioral state was observed during circumcision and for the half hour prior to taking the second blood sample. The results showed a return to baseline cortisol levels sometime prior to 240 min, with data from an additional group of 10 newborns indicating that the return occurred by 150 min. Behavioral distress during circumcision was associated with levels in plasma cortisol at 30 and 90 min. Quiet sleep was correlated negatively with plasma cortisol prior to circumcision, and significant increases in quiet sleep followed circumcision, with the greatest increase corresponding to the periods of most rapid reductions in cortisol.


          Effect of neonatal circumcision on pain response during subsequent routine vaccination:
                • [...]

                  Interpretation

                  Circumcised infants showed a stronger pain response to subsequent routine vaccination than uncircumcised infants. Among the circumcised group, preoperative treatment with Emla attenuated the pain response to vaccination. We recommend treatment to prevent neonatal circumcision pain.

                  [...]

                  The results of this study are consistent with studies of pain response in animals and behavioural studies in humans showing that injury and tissue damage sustained in infancy can cause sustained changes in central neural function, which persist after the wound has healed and influence behavioural responses to painful events months later. Pretreatment and postoperative management of neonatal circumcision pain is recommended based on these results. Investigation of the neurological basis of these effects is warranted.


          [url=hhttp://www.cirp.org/library/psych/boyle6/]Male Circumcision: Pain, Trauma and Psychosexual Sequelae:[/url]
                • [...]

                  Conclusion

                  The body of empirical evidence reviewed here suggests that there is severe pain at the time of circumcision and shortly thereafter in unanaesthetised boys, as well as heightened pain sensitivity for some considerable period of time afterwards. Evidence has also started to accumulate that male circumcision may result in lifelong physical, sexual, and sometimes psychological harm as well. A variety of forces are converging from fields as diverse as psychology, medicine, law, medical ethics, and human rights, all questioning the advisability of circumcision which originated millenia ago and was promoted in the Victorian era. As Chamberlain (1998) pointed out, "parents are not warned that their infants will endure severe pain and will be deprived of a functional part of their sexual anatomy for life." Non-therapeutic circumcision of male minors is now being questioned by legal and ethics scholars in an unprecedented way. The mental health community can play an important role in the growing debate about circumcision. We encourage closer examination of this issue and even more empirical research into the psychosexual sequelae associated with circumcision.


          Ritual and Medical Circumcision among Filipino Boys:
                • [...]

                  Conclusion

                  Strong support was found for the first Hypothesis that ritually circumcised boys would exhibit evidence of PTSD. Hypothesis two was also supported, predicting that a larger number of boys undergoing ritual circumcision would exhibit PTSD as compared with those undergoing medical circumcision. However, the findings of this study show that PTSD results from both procedures. Results of this study provide strong evidence of a direct causal relationship between circumcision and the ubsequent development of PTSD in circumcised Filipino boys.

                  Cultural conformity is a major force in the perpetuation of circumcision on defenseless children in the Philippines. More than 50% of boys underwent the procedures because of social pressure. This study suggests that there is a need for the Filipino community to be informed about the serious psychological harm caused by circumcision.

                  This study is a pioneering research documenting evidence of PTSD after circumcision of Filipino boys. Further investigation of the psychological and social effects of circumcision will open a valuable new area of inquiry, particularly into the long-term harmful psychological effects of genital mutilation imposed on Filipino boys.


I'm not a medicine. But to me it seems as if a circumcision isn't as harmless as some are trying to paint it. I do not know any actual studies which are showing that circumcision is harmless. But that does not mean, that there aren't such studies. If anyone knows one ...

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Re: German court: Religious circumcision on minors is a crim

Post by Mr. Oragahn » Sat Jul 07, 2012 9:45 pm

sonofccn wrote:Might as well throw my two cents in. I think this ruling is stupid and wrong headed. If there was a clear and present danger to the child that would be one thing but as it is it cuts against religious freedom as well as the simple right of a family to raise its offspring. Someone elses child isn't my own I have no right to essentially tell them how to raise their child barring physical or clear mental threats to their well being which the procedure in question does not fall under.
The problem with freedom of this and that is that by the time you have people with completely different cultures in your country, you're left with the choice of letting them do what they always did, which may really clash with your own legitimate and rooted culture, or you say nope, if you want to do X or Y, there's plenty of other places to do it and I don't accept your own customs on my land, such places including where such alien customs obviously are part of the historical/national culture where they birthed.
This question stems from two fronts, one about immigration (and thus importation of foreign cultures) and the hosting country's genuine and age old customs.
ON such topics, I say fuck freedom. This ain't my country, and I don't want to see my country hosting people doing such things when it hasn't been the case, and certainly wasn't much the case before WWII; it's after that devastating war that truly trans-continental immigration grew out of proportions, hence the noticeable culture clash. Remember, we're talking about Europe. There are strong cultures there with which you can't play randomly without causing problems. The question is quite different when it comes to places which were largely the result of massive colonies of barely populated regions.

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Re: German court: Religious circumcision on minors is a crim

Post by sonofccn » Sun Jul 08, 2012 12:08 am

WILGA wrote:As I see it, often times the circumcision on infants is regarded as a minor surgery.

But is this really the truth?
I guess that might be what were arguing about.

The psychological impact of circumcision:
Well doing a quick once over the writer, a R. Goldman, states his primary source of data on the pychological effects, the main thrust of the piece, from essentially men who were experiancing pychological effects on the procedure in quesiton.
Without published studies, current knowledge of men's feelings about their circumcision is generally based on reports from self-selected men who have contacted the Circumcision Resource Center (CRC) and other circumcision information organizations [44].
And I would make the case this is on par with using comments made on the suicide hotline to argue the population as a whole is sucidial.

I would further point out he acknowldges a lack of vocal outspokenness on the general of American citizens which the procedure had been done on them and handwaves by saying that there could be factors which might explain it.
The following reasons explain why circumcised men report little about how they truly feel:

i.Accepting beliefs and cultural assumptions about circumcision prevents men from recognizing and feeling their dissatisfaction; e.g. being told when young that it was necessary for health reasons and not questioning that.
ii.The emotions connected with circumcision that may surface are very painful; repressing them protects men from this pain. If the feelings become conscious, they can still be suppressed.
iii.Those who have feelings about their circumcision are generally afraid to express them because their feelings may be dismissed or ridiculed.
iv.Verbal expression of feelings requires conscious awareness. Because early traumas are generally unconscious, associated feelings are expressed non-verbally through behavioural, emotional, and physiological forms [45,46]
Suffice it to say I hedge towards Occam's Razor to explain issues and accept the least complicated answer which explains until evidence says otherwise. "Silent Crisises" all to often are merely the tools in which one tries to control your behavior or opinion.

Additionaly where upon he makes the suggestion that people who favor the procedure out of some subconcious desire to enact their torture upon children is not conductive to a civilized debate and is a monsterious construct largely fabricated from his own concious.
Although research shows harmful effects of circumcision, and there is much that is not known about the long-term sequelae, it is difficult for advocates of circumcision to change because of powerful psychological factors. The behavioural re-enactment of the trauma is a compulsion for some trauma victims.
Suffice it to say I would not believe R. Goldman to be a fair or unbiased individual and any conclusions he drew should be viewed accordingly.
Ritual and Medical Circumcision among Filipino Boys:
Well first I'd be curious what the PTSD was among boys who had not under gone the procedure to try and get a base for comparison. Further there is the question if tests for PTSD are even applicable to children as young as eleven. Third I would be curious, and I apologize if I overlooked it, how many of these children showed or later developed "destructive behavior".
Wilga wrote:I'm not a medicine. But to me it seems as if a circumcision isn't as harmless as some are trying to paint it.
As you are entitled to through I would argue it isn't a bad as the studies you cited make out. If it was we would expect to see a sharp rise in insanity and/or destructive behavior within the United States male population since the practice gained steam.
Mr. Oragahn wrote:
sonofccn wrote:Might as well throw my two cents in. I think this ruling is stupid and wrong headed. If there was a clear and present danger to the child that would be one thing but as it is it cuts against religious freedom as well as the simple right of a family to raise its offspring. Someone elses child isn't my own I have no right to essentially tell them how to raise their child barring physical or clear mental threats to their well being which the procedure in question does not fall under.
The problem with freedom of this and that is that by the time you have people with completely different cultures in your country, you're left with the choice of letting them do what they always did, which may really clash with your own legitimate and rooted culture, or you say nope, if you want to do X or Y, there's plenty of other places to do it and I don't accept your own customs on my land, such places including where such alien customs obviously are part of the historical/national culture where they birthed.
This question stems from two fronts, one about immigration (and thus importation of foreign cultures) and the hosting country's genuine and age old customs.
ON such topics, I say fuck freedom. This ain't my country, and I don't want to see my country hosting people doing such things when it hasn't been the case, and certainly wasn't much the case before WWII; it's after that devastating war that truly trans-continental immigration grew out of proportions, hence the noticeable culture clash. Remember, we're talking about Europe. There are strong cultures there with which you can't play randomly without causing problems. The question is quite different when it comes to places which were largely the result of massive colonies of barely populated regions.
Well if your goal is explicit discrimination your entitled to make that argument and attempt what reforms are required via your nation in order to enact them. I simply don't agree that is the best way towards societal stability save where there is a clear and present danger to innocents. Then I'm all for the Federal Goverment flexing its muscles and crushing things.

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