OLG Hamm: Prison sentence against father must also take account of the consequences of the crime
If a non-custodial father has his six-year-old son circumcised against his will and the will of the mother for religious reasons, he must face a prison sentence for willful bodily harm. If circumcision has a physically or psychologically stressful effect on the child, this must be taken into account to increase the punishment, the Higher Regional Court (OLG) Hamm decided in a final judgment published on Thursday, January 18, 2018 (Az .: 5 RVs 125/17).
In this specific case, the 35-year-old Muslim defendant from Southern Europe had his son circumcised for religious reasons. The mother, who lived separately and had sole custody, had not consented to the circumcision of the then six-year-old.
However, when the child was brought to the father during the summer vacation in 2015, the father drove to a circumcision center in Essen. The six-year-old had resisted circumcision with his hands and feet, but to no avail. There was no medical reason for the procedure.
The Essen district court finally sentenced the father to a one-year suspended sentence for willful bodily harm. To exacerbate the sentence, the court assessed that the circumcision was carried out against the will of the sole custodian and that the summer vacation was used to carry out the crime. The boy was also relatively old at the time of the circumcision. However, he had no opportunity to participate in the decision about the intervention in line with his age.
The prosecutor's office found the one-year suspended sentence far too mild. The fact that the custodial sentence was suspended is illegal. For example, the child's physical and psychological burdens were not sufficiently taken into account after the crime.
The OLG also followed this in its judgment of November 21, 2017. The district court did not take into account in the sentence, how the actual circumcision process went against the child's will. The extent to which the injured six-year-old was subjected to psychological or physical stress during the operation, which was regularly associated with pain, had not been fully clarified. The same applies to the question of the extent to which the boy continued to suffer or suffer from the intervention later.
If custodial parents want to have circumcision, they should discuss the procedure with the child according to their age and try to reach agreement. Although the father has no custody here, he has not even had a conversation with the child, the OLG complained.
Another punishment chamber at the Essen Regional Court must now decide on the punishment to be imposed on the charge of intentional bodily harm.
In another case, the Higher Regional Court had already ruled on August 30, 2013 that circumcision is not permitted if there is a risk to the wellbeing of children (Az .: 3 UF 133713; JurAgentur announcement dated September 25, 2013). If possible, the child should be included in the decision on circumcision, according to the OLG with reference to the legal provisions.
On December 28, 2012, the legislature changed the regulations so that parents can have their son circumcised without medical need, provided that the child cannot decide on this question. fle / mwo