GERMANY: "The judgement is final" - Jurist

Turkish German News (translated from German)
June 26, 2012

Opinion: Doctors should refuse to perform religious circumcision

The District Court of Cologne has recently ruled that the circumcision of boys, even for religious reasons, shall henceforth be considered a crime. ... Criminal law professor Dr. Holm Putzke of the University of Passau evaluates the judgment in an interview for the German Turkish News. For him, the ruling is an appeal to parents to deliberate whether such interventions are really necessary.

German Turkish News: How do you interpret the ruling of the Cologne Court? Is this a landmark decision?

Holm Putzke: Although the Cologne District Court generally follows prevailing opinion in the legal and medical literature, this ruling does represent an important turning point. For the first time, a court has declared - no ifs and/or buts about it - that medically unnecessary circumcision on non-consenting boys is illegal, and in fact is punishable by law. Prior to this decision, the legal situation was unclear for lack of a clear judicial decision.

...

German Turkish News: Could you say it's a specific feature of Western democratic societies that the legal right to physical integrity is trumps the right to religious freedom?

Holm Putzke: There's no blanket answer to that. Protecting religious freedom is important and necessary, just as it's essential to protect the physical safety of persons, especially children. It would be a queer understanding of religious freedom if religions were simply allowed to physically injure people in the name of their faith and thereby circumvent the prevailing statutory laws of German society. ...

German Turkish News: What does this ruling now mean for doctors? Should doctors basically refuse to perform circumcisions for religious reasons?

Holm Putzke: Two Munich doctors, Maximilian Stehr and HansGeorg Dietz, collaborated with me on an article in 2008 that was published in the German Medical Journal regarding the criminalization of religious circumcisions on boys. Since then, more and more doctors have refused to participate in medically unnecessary circumcisions of non-consenting boys. This is primarily because the surgery carries risks, and confers absolutely no health benefits in childhood. After the Cologne ruling, doctors can now be threatened with criminal prosecution, and without going into too much detail, the inherent illegality - of the act of circumcising boys who don't need it - will likely impact doctors' liability insurance.

If doctors are presented with a request to perform a religiously-motivated circumcision, they would do well to advise the parents of the legal situation in this country, as well as the risks of surgery itself, and refuse to perform the surgery. At the same time, doctors should clearly point out that circumcision should be postponed until the individual in question can decide about the procedure himself.

German Turkish News: What message does this ruling send to the religious communities?
Holm Putzke: The message is: Think about, really reflect, whether it is really necessary to put a small, often utterly frightened boy through surgery that has no medical necessity and that carries risks, or whether you can hold off on this or opt for some other ritual that symbolically fulfills the religious intent.

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German Turkish News: Do you expect there to be an appeal?

Holm Putzke: This was already an appellate decision. Since the state bar apparently has decided not to consider any further appeals, the judgment is final. There is no way to challenge this ruling. This message is especially true for individuals or organizations that might viscerally attack this decision just to declare their outrage and disgust.

German Turkish News: Do you expect more lawsuits because of similar incidents?

Holm Putzke: I won't hazard an answer. Conceivably a storm of indignation from religious groups might initially discourage other prosecutors from bringing such cases. But in the long run the solid arguments will prevail. And those arguments pretty clearly now say that  children should not have their genitals forcibly violated. Rather, they can make a decision at an appropriate age about whether they want it or not.

Prof. Dr. Holm Putzke, LL.M. teaches Criminal Law at the University of Passau. Since the 2008 publication of his essay "The Criminal Relevance of Circumcision of Boys," he has made many other contributions to the subject and has participated in the public debate on the criminalization of circumcision of minors that is not medically indicated. 

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