The law should not treat ritual circumcision as a sacred cow
On 7 May 2012, the Amtsgericht Cologne ruled that a Muslim boy’s ritual circumcision represented criminal behaviour, and violated his constitutional right to bodily integrity. The defendant performed a circumcision on the a 4-year-old child (“K1”), in his medical practice in Cologne. The operation was performed under anaesthesia, and with the aid of a scalpel. There was no medical basis for the procedure, but was requested by the parents in line with their Islamic faith. A translation of the judgment can be found at the Durham Law School website (http://www.dur.ac.uk/law/news/?itemno=15002). Essentially, the court held that the defence of “social adequacy” (which appears to resemble the defence of “necessity” in English law) does not prevent a ritual circumcision from satisfying the elements of an offence. In addition, the Defendant’s actions were not justified by consent – K1’s consent could not be given “due to a lack of intellectual maturity”. The fact that his parents consented “could not justify the infliction of bodily harm”.
The court also performed a balancing exercise of competing rights established under the German Basic Code. It considered the interaction between, on the one hand, the parent’s right to freedom of faith and conscience and their “natural” right to care and bring up their children and, on the other, the child’s right to “bodily integrity and self-determination”. The court remarked that ritual circumcision is “unreasonable in the sense of proportionality”, and noted that it “changes the child’s body permanently and irreparably”.
The German government has expressed public support for the practice of ritual circumcision (http://www.bbc.co.uk/news/world-europe-18833145), while various commentators have considered the merits of the ruling. Debate has generally been stratified, from one extreme (Giles Fraser described the decision as “ridiculous and offensive” – http://www.guardian.co.uk/commentisfree/belief/2012/jul/17/german-circumcision-affront-jewish-muslim-identity) to the other (Catherine Bennett wrote that circumcision is “an affront to decent human behaviour – http://www.guardian.co.uk/commentisfree/2012/jul/22/catherine-bennett-circumcision-is-bad).
The principal argument behind criminalising ritual circumcision concerns the issue of consent – because infants cannot give informed consent, the unlawful physical contact that is committed against them should represent an offence. Indeed, under liberal principles, circumcision represents a severe interference with the rights of individuals. In contrast, the arguments in support of circumcision stress its’ status as an accepted religious custom and symbol of religious identity. The debate rarely touches on scientific matters – although there can be no doubt that circumcision represents a permanent and unalterable bodily change, there is insubstantial evidence that it causes adverse health consequences (http://www.guardian.co.uk/law/2011/jun/15/male-circumcision-ban-health-religion-debate?INTCMP=ILCNETTXT3487).
Ritual circumcision occupies a rather peculiar space in criminal law – removing another’s foreskin should, prima facie, constitute an offence under the Offences Against the Person Act 1861. However, it does not. The leading case on the liability of those performing ritual circumcision is Re J (Specific Issue Orders: Muslim upbringing and circumcision)  2 F.L.R. 678, where Wall J (as he was then known) ruled that male ritual circumcision was lawful, provided there was joint parental consent. His reasoning was endorsed by the Court of Appeal at the time (Re J (Specific Issue Orders: Muslim upbringing and circumcision)  1 F.C.R. 307, CA).
Re J concerned a non-practising Muslim father who sought an order requiring a non-Muslim mother to bring their child up as a Muslim and, pursuant to that, for there to be a circumcision. Wall J observed that there was a dearth of judicial references regarding the legality of ritual male circumcision, but relied on an obiter remark made by Lord Templeman in the controversial case of Brown, which assumed that it was lawful. His Lordship stated that “…other activities carried on with consent by or on behalf of the injured person have been accepted as lawful notwithstanding that they involve actual bodily harm or may cause serious bodily harm. Ritual circumcision, tattooing, ear-piercing and violent sports including boxing are lawful activities”.
Although the Human Rights Act 1998 was not yet in force, the learned judge in Re J balanced the competing rights of the child and parents, when assessing the appropriateness of granting an order for circumcision. He concluded that the parental right to manifest their religion under Article 9 of the European Convention trumped the welfare of the child, and placed significant emphasis on the fact that the parents had given joint consent.
Had Wall J considered the child’s right to bodily integrity under Article 8, the right to freedom of religion under Article 9 and the right not to be subject to inhuman and degrading treatment under Article 3, he may well have arrived at a different conclusion. However, in a case decided after the enactment of the Human Rights Act, Re S (Specific Issue Order: Religion: Circumcision)  EWHC 1282 (Fam), Baron J declined to carry out a structured balancing exercise of Convention rights, and followed the ratio in Re J – namely that where both parents agree ritual circumcision is lawful.
The position, then, is clear – by virtue of the common law, and in the exercise of joint parental responsibility, male ritual circumcision is lawful. The basis behind this principle is less clear – it is not consolidated by statute, while the common law fails to elucidate why ritual circumcision is lawful. Lord Templeman’s reference to ritual circumcision in Brown outlined above is particularly perplexing; it was grouped together with activities that demand consent, while male infants cannot give informed consent.
It seems inconceivable that, were the issue to be considered by the European Court, this position would be deemed to be Convention-compliant – the current state of the law simply does not accommodate the rights of the male infant alongside the rights of his parents to perpetuate their religious beliefs. Indeed, the proposition that the consent of the infant (which of, course, cannot be given) is overriden by the consent of their parents is, conceptually, flimsy – not only does the theory undermine any notion of self-autonomy, but imbues parents with a disproportionate level of influence over their children. In this way, criminalising this practice would, in theory, compliment a liberal democracy, a core aspect of which is that individuals should exercise control over their own bodies.
Of course, what works in theory is not always suitable in practice. Would it be prudent to criminalise a practice established, and venerated, over centuries? Outlawing the practice of circumcision would threaten a ritual of critical importance to Jewish and Muslim identities. In McFarlane v Relate Avon Limited  EWCA Civ B1, Lord Justice Laws criticised the notion that the law should not intrude on religiously significant customs – he stated that: “legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled”. The learned judge’s logic is fundamentally sound, but it occurs to me that there is mileage in the wisdom of respecting modes of behaviour that have stood the test of time.
Indeed, the law on circumcision is interesting precisely because it trespasses on the issue of religion’s relationship with the law. That religion has provided many with a valuable moral compass is a grave understatement – as such, one might expect the law to compliment institutions of religion. On the other hand, the rule of law would be safeguarded under a truly secular legal system – the rule of law imports a sense of neutrality to the law, demands that laws are conceptually consistent, and forbids the type of inconsistency that immunising religious practices would represent. In fact, this is why, on balance, the law on circumcision should be reformed. A fair and equitable legal system should not reinforce inconsistency or consecrate any ‘sacred cows’, however well-established or culturally-rich they might be.