Judgment after circumcision of a six-year-old against his will

Higher Regional Court Hamm: imprisonment against father must also take into account consequences of actions
If a non-custodial father trims his six-year-old son against his will and the will of the mother on religious grounds, he must expect imprisonment for intentional assault. If the circumcision has a physical or mental burden on the child, this must be taken into account in order to tighten the sentence, the Higher Regional Court (OLG) Hamm decided in a final judgment published on Thursday, 18 January 2018 (Ref .: 5 RVs 125/17).

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In this particular case, the 35-year-old Muslim defendant from Southern Europe had his son circumcised on religious grounds. The separated and custodial mother had not consented to the circumcision of the then six-year-old.

However, when the child was brought to father during the summer holidays in 2015, he went to a circumcision center in Essen. The six-year-old had resisted the circumcision with his hands and feet, but to no avail. There was no medical reason for the procedure.

The Essen Regional Court finally sentenced the father to a one-year probation for intentional assault. The court assessed that the circumcision was carried out against the will of the sole guardian and that the summer vacation was used to carry out the crime. Also, the boy was relatively old at the time of circumcision. But he had no opportunity to age-appropriate to participate in the decision on the intervention.

The prosecution considered the one-year suspended sentence too mild. The fact that the prison sentence was suspended on probation was legally flawed. Thus, the physical and mental stress of the child after the fact were not sufficiently taken into account.

This was followed by the Higher Regional Court in its judgment of 21 November 2017. The district court did not take into account in the sentencing, how the actual circumcision process against the will of the child had expired. The extent to which the injured six-year-old was subjected to mental or physical stress during the operation, which is usually associated with pain, was not fully explained. The same applies to the question to what extent the boy suffered or suffers from the procedure later on.

If custodial parents wish to perform circumcision, they must discuss the procedure with the child in accordance with their age and try to reach an agreement. Although the father is not custodian here, he has not even conducted a conversation with the child, the OLG complained.

About the punishment to be imposed because of the accusation of intentional injury must now decide another criminal court at the district court food.

In another case, on 30 August 2013, the Higher Regional Court had ruled that circumcision was inadmissible in the case of a risk to the child's well-being (ref .: 3 UF 133713, JurAgentur report dated 25 September 2013). If possible, the child should be included in the decision on the circumcision, so the Higher Regional Court with reference to the statutory provisions.

The legislature amended the rules on 28 December 2012 so that parents could induce their son to be circumcised without medical necessity, provided that the child can not decide on this question himself. fle / mwo