Circumcision Symposium Online Publications

Melanie Adrian: Reply to Stephen R. Munzer’s “Secularization, Anti-Minority Sentiment, and Cultural Norms in the German Circumcision Controversy”

*Melanie Adrian is Associate Professor in the Department of Law and Legal Studies at Carleton University. She is the author of Risking Religious Freedom: The Eu, French Schools And Why The Veil Was Banned (2016).

Introduction

Stephen R. Munzer’s article entitled “Secularization, Anti-minority Sentiment, and Cultural Norms in the German Circumcision Controversy” is a close examination of a series of legal cases that resulted in extended public discussions between 2010 and 2012 regarding circumcision practices in Germany. The author argues that three factors framed the issue during these two years: (1) that Germans historically do not circumcise, (2) that there is a widespread disdain for religious practices given an increased focus on secularism, and (3) that the rise of secularism demonstrates a prevailing anti-minority sentiment. The procedure raises critical questions regarding the religious freedoms of children, the rights and the latitudes of parents in determining which religious rites their child will undergo, the scope of parental consent with regards to bodily integrity, and the right to culture and community.

Munzer’s article represents an effective and valuable effort to bring these together. The author carefully outlines the legislative history of the relevant statutes, the facts of the underlying case, and the proceedings at the appellate level. At each step, Munzer pauses to parse through the legal arguments and connect each argument to their socio-political effects. The article is well-researched, and makes a full-bodied contribution to the literature in this field.

This paper briefly addresses the manner in which circumcision has been discussed in international law, suggesting that German justices, but not lawmakers, entirely neglected the wide-spread support of this practice at the international level. Second, given the appellate court justices’ audacious assumptions regarding circumcision, it may be fitting to prioritize Munzer’s final point, the inherent anti-minority sentiment, from the three highlighted factors which framed the German circumcision discussions during these years.

The disagreements regarding male circumcision in Germany were sparked in 2010, after a doctor was charged with aggravated criminal battery for his involvement in a circumcision that caused the child secondary bleeding. After the doctor was acquitted of any wrongdoing, the case made its way to the appellate court in Cologne. In 2012, the Cologne appellate court ruled to ban male circumcision in Germany. As soon as the ruling became public, “all hell broke loose” with various accusations of discrimination and legal misappropriation leveled by major figures in politics, law, academia, news, and entertainment.01Stephen R. Munzer, Secularization, Anti-minority Sentiment, and Cultural Norms in the German Circumcision Controversy, 37 U. Pa. J. Int’l L. 503, 520 (2015). The ruling was quickly overturned by the German Parliament, permitting circumcision under certain conditions. As it stands today, circumcision is allowed in Germany, provided that the procedure is fully discussed with the parents, and is performed in compliance with medical standards, including the utilization of pain management measures. While the law only applies to children below the age of consent, it nevertheless recognizes that the wishes of the child hold some relevance in the larger puzzle of competing human rights and cultural values.02Munzer, supra note 2, at 545–47.

Circumcision in International Law and Practice

Munzer’s article does little to discuss how nations, and how Germany in particular, might approach circumcision as it relates to their international legal commitments. Germany is a party to at least nine international human rights treaties. As these treaties have been signed and ratified, the domestic effects of these treaties should thus be considered at a greater length.03United Nations Office of the High Commissioner, Ratification of 18 International Human Rights Treaties, http://indicators.ohchr.org (last visited Dec. 11, 2016). The most obvious amongst these, as it relates to circumcision, is the Convention on the Rights of the Child, which Germany ratified in 1992.04Germany subsequently signed the three optional Protocols to this Convention. Two years ago, Germany signed the optional protocol, allowing communications from children directly to the Committee on the Rights of the Child. The Convention outlines fifty-four articles that broadly cover cultural, religious, community, linguistic and other rights and which, some would argue, should be understood with a particular focus toward an overarching question: What is in the child’s best interests?05Tara Collins & Christine Gervais, Children’s Rights: Their Role, Significance and Potential, in Current Issues and Controversies in Human Rights, 168–97 (Gordon DiGiacomo ed., 2016); Michael Freeman, Culture, Childhood and Rights, 5 The Family in Law 15 (2015).

The Committee on the Rights of the Child, which oversees the implementation of the Convention on the Rights of the Child, has directly taken up the issue of circumcision. In one of their communications, for example, the Committee “recommend[ed] that the State party take effective measures, including training for practitioners and awareness-raising, to ensure the health of boys and protect against unsafe medical conditions during the practice of male circumcision.”06United Nations Convention on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: South Africa, ¶ 33, U.N. Doc. CRC/C/15/Add.122 (Feb. 22, 2000). Thus, the practice has not been denounced, but its continued practice is discussed in light of increasing medical improvements in its execution. This issue is addressed consistently and repeatedly in the advice given by the Committee to state parties.07United Nations Convention on the Rights of the Child, Concluding Observations on the Second to Fourth Periodic Reports of Israel, Adopted by the Committee at its Sixty-Third Session (27 May – 14 June 2013), U.N. Doc. CRC/C/ISR/CO/2-4 (July 4, 2013) (expressing concern, for example, over types of male circumcision as it is practiced in some communities in Israel); United Nations Convention on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention Concluding Observations of the Committee on the Rights of the Child: Lesotho, U.N. Doc. CRC/C/15/ADD.147 (Feb. 21, 2001) (expressing concern for unsafe conditions in Lesotho); United Nations Convention on the Rights of the Child, Concluding Observations on the Combined Second to Fourth Periodic Reports of Liberia, Adopted by the Committee at its Sixty-First Session (17 September-5 October 2012), U.N. Doc. CRC/C/LBR/CO/2-4 (Feb. 21, 2001) (expressing concern for unsafe conditions in Liberia); United Nations Convention on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention Concluding Observations of the Committee on the Rights of the Child: Zambia, U.N. Doc. CRC/C/LBR/CO/2-4 (July 2, 2003) (expressing concern for unsafe conditions in Zambia).

The Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, agrees. In his interim report to the General Assembly of the United Nations in 2015, Bielefeldt observed that “while some national legislators have specified certain conditions for the practice of male circumcision, in the spirit of the recommendations of the Committee on the Rights of the Child, no state has outlawed the practice as such, which would be a far-reaching intervention into parental rights.”08United Nations Special Rapporteur for Religious Freedom and Belief, Interim Report, ¶ 73, U.N. Doc. A/70/286 (Aug. 5, 2015). In fact, when asked to comment on the appellate court ruling that banned circumcision in Germany, Bielefeldt responded by saying that it was “nonsense.”09Elisa Oddone, German Court Circumcision Ban Meets Wave of Criticism (Jun. 28, 2012, 2:50 PM), http://www.reuters.com/article/us-germany-circumcision-idUSBRE85R1F020120628.

Circumcision and Anti-Minority Sentiment in Germany

Nevertheless, the same determination which seemed like “nonsense” to the Special Rapporteur appeared to have been more than plausible to the three appellate court judges who decided to overturn the lower court decision. This is partly because their determination reached beyond lower court’s essential consideration regarding whether parental consent could, by itself, justify the procedure in light of community belonging, ritual expectations, or health reasons justifying the practice. That is, the appellate court refused to evaluate the practice in light of the faith requirements, the parental expectations, or the overall health implications.

In contrast to the lower court, the decision at the appellate court appeared to have been informed by way of three initial assumptions: (1) that the procedure was not medically necessary, (2) that social acceptability could not remove circumcision from the scope of criminal law, and (3) that circumcision was not a traditional ritual behaviour. Each assumption is discussed briefly below in an attempt to demonstrate that these assumptions are, at minimum, highly controversial. More realistically, these assumptions reflect a strong undercurrent of anti-minority sentiment at play in this case. Indeed, this third assumption demonstrates a particularly concerning degree of ignorance, or perhaps even arrogance, from the German judiciary.

Claims that circumcision is medically unnecessary represents a haltingly broad assertion, especially given the ever-changing scientific landscape with regards to the procedure. The rates of circumcision, represented as a percent of national population, have shifted considerably in the last decades. According to the World Health Organization (WHO), about 30% of males are circumcised, with the highest rates in Nigeria (95%) and the lowest rates in the UK (8.5%).10Rachael Rettner, U.S. Circumcision Rate Drops Over Last 3 Decades, Report Says (Apr. 7, 2014, 6:38 PM), http://www.huffingtonpost.com/2014/04/07/circumcision-rate-drops_n_5107637.html. In Canada, circumcision used to be routine, with the government covering the costs of the procedure. The rates of circumcision have since dropped in Canada, from 70% in the 1970’s to just 30–40% today. Although the Canadian Pediatric Association, in its September 2015 statement, did not recommend routine circumcision for every male child, it did recognize the potential health benefits: a reduction in UTIs, a lower risk of developing penile cancer, and a possible reduction in the risk of acquiring an STI (specifically HIV, HSV and HPV).11Canadian Paediatric Society, Newborn Male Circumcision, http://www.cps.ca/documents/position/circumcision (last visited Dec. 12, 2016). Thus, circumcision may be recommended for those males prone to UTIs, those who may develop cancer, or those who will engage in behaviour that will put them at risk of developing these diseases. The problem, of course, is that no one can foresee a child’s future. Parents, therefore, must make this decision with the best interests of their child in mind. Regardless of whether the child is in Swaziland or Germany, the primary distinction is the child’s risk of exposure to these diseases, and by proxy their ultimate decision to engage in high risk behaviour.

The second assumption made by the appellate court is that the social acceptability of a procedure cannot, by itself, remove the procedure from the scope of criminal law. This is an important consideration that challenges the social acceptability of harm. If this is the case, however, then we must consider all forms of harm done to children. The common practice of ear piercing – a permanent and painful disfigurement of the body – should also be questioned for parents who subject their children to this practice often whilst their child is too young to consent. Here, society harms its young for their perceived beautification. The question of social acceptability is, therefore, far more complex, requiring a close examination of the degree of harm, the import to a community, and the apparent value of the procedure to the propagation of a minority community, at the very least. Given that the lower court had considered some of these issues, it is puzzling that the appellate court was wanton with these concerns.

The appellate justice’s third point is, perhaps, the most perplexing, and one which calls into question the underlying motivation of the decision: the assertion that circumcision is not traditional ritual behaviour and that exclusion from a religious community on this basis is not a critical factor in their evaluation of the case. Besides the simple inaccuracy regarding the importance of circumcision within communities of belief (and even within those of non-belief), the justices are positing that a long standing practice amongst certain groups should not be given attention in light of the social and cultural issues of the case. As mentioned above, society will inevitably propagate harm upon its young: The central question is thus how we should adjudicate that harm and determine to what ends such harm is societally acceptable. The underlying principle driving the legal decision in this case, however, is that long-standing rituals that have historically served to bind communities should not be given due consideration. This affront to beliefs and cultural practices is astonishing and should be read within a wider anti-minority sentiment.

To conclude, circumcision is a contested issue, highlighting several underlying questions related to the child’s rights in light of the age of consent, bodily integrity, parental permission and continued propagation of a social harm. International law is an important tool to adjudicate this issue, particularly as Germany has ratified the relevant treaties which seek to address these issues. It is also important, as Munzer discusses, to see this issue in light of anti-minority sentiment in Germany. I argue that it is fitting, given the highly suspicious legal arguments made in the appellate case and notwithstanding the speed with which the German Parliament reversed course, to read that case as an example of anti-minority sentiment at its worst.

References   [ + ]

01. Stephen R. Munzer, Secularization, Anti-minority Sentiment, and Cultural Norms in the German Circumcision Controversy, 37 U. Pa. J. Int’l L. 503, 520 (2015).
02. Munzer, supra note 2, at 545–47.
03. United Nations Office of the High Commissioner, Ratification of 18 International Human Rights Treaties, http://indicators.ohchr.org (last visited Dec. 11, 2016).
04. Germany subsequently signed the three optional Protocols to this Convention. Two years ago, Germany signed the optional protocol, allowing communications from children directly to the Committee on the Rights of the Child.
05. Tara Collins & Christine Gervais, Children’s Rights: Their Role, Significance and Potential, in Current Issues and Controversies in Human Rights, 168–97 (Gordon DiGiacomo ed., 2016); Michael Freeman, Culture, Childhood and Rights, 5 The Family in Law 15 (2015).
06. United Nations Convention on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: South Africa, ¶ 33, U.N. Doc. CRC/C/15/Add.122 (Feb. 22, 2000).
07. United Nations Convention on the Rights of the Child, Concluding Observations on the Second to Fourth Periodic Reports of Israel, Adopted by the Committee at its Sixty-Third Session (27 May – 14 June 2013), U.N. Doc. CRC/C/ISR/CO/2-4 (July 4, 2013) (expressing concern, for example, over types of male circumcision as it is practiced in some communities in Israel); United Nations Convention on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention Concluding Observations of the Committee on the Rights of the Child: Lesotho, U.N. Doc. CRC/C/15/ADD.147 (Feb. 21, 2001) (expressing concern for unsafe conditions in Lesotho); United Nations Convention on the Rights of the Child, Concluding Observations on the Combined Second to Fourth Periodic Reports of Liberia, Adopted by the Committee at its Sixty-First Session (17 September-5 October 2012), U.N. Doc. CRC/C/LBR/CO/2-4 (Feb. 21, 2001) (expressing concern for unsafe conditions in Liberia); United Nations Convention on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention Concluding Observations of the Committee on the Rights of the Child: Zambia, U.N. Doc. CRC/C/LBR/CO/2-4 (July 2, 2003) (expressing concern for unsafe conditions in Zambia).
08. United Nations Special Rapporteur for Religious Freedom and Belief, Interim Report, ¶ 73, U.N. Doc. A/70/286 (Aug. 5, 2015).
09. Elisa Oddone, German Court Circumcision Ban Meets Wave of Criticism (Jun. 28, 2012, 2:50 PM), http://www.reuters.com/article/us-germany-circumcision-idUSBRE85R1F020120628.
10. Rachael Rettner, U.S. Circumcision Rate Drops Over Last 3 Decades, Report Says (Apr. 7, 2014, 6:38 PM), http://www.huffingtonpost.com/2014/04/07/circumcision-rate-drops_n_5107637.html.
11. Canadian Paediatric Society, Newborn Male Circumcision, http://www.cps.ca/documents/position/circumcision (last visited Dec. 12, 2016).

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