Italian Supreme Court of Cassation, Criminal Section VI, No. 43646/2011, 22 June 2011

Recourse against conviction for complicity in the abusive practice of a medical profession. Ritual circumcision of the minor son of the defendant, of Nigerian origin. Ignorance of the medical nature of ritual circumcision due to its widespread use in the agent's culture.

Artt. 2, 25 Italian Law n. 101/1989

Art. 50 Italian criminal code

Art. 5 Italian criminal code

Art. 348 Italian criminal code

1. Ritual circumcision performed by Jews on a newborn child must – also in accordance with articles 2 and 25 of the Italian Law No. 101/1989 (implementing the 1987 agreement between the State and the Union of Italian Jewish Communities), which enshrine the right to profess and practise the Jewish religion – be considered not to be in contrast with our legal system, and has a preeminent religious value overriding the medical one. With the effect that the mohel (the person entrusted by the father of the newborn child to perform the circumcision in the Jewish communities: usually a doctor or anyway a person specialised in the practice of circumcision and linked rituals) could never incur in the offence of abusive exercise of the medical profession and his conduct, which objectively integrates the offence of personal injury, if it does not determine an appreciable permanent injury and does not show signs of negligence, imprudence or malpractice is excused by the consent of the entitled person (art. 50 of the Italian Criminal Code), validly and effectively given by the parents of the newborn child for the performance of an act that is one of those acts of disposition of one’s own body permitted by article 5 of the Italian Civil Code.

2. If the meaning of the non-therapeutic circumcision can be traced back to motivations that go beyond religious and identity ones and that are rooted only in cultural and ethnic traditions, foreign to the Western culture and not always compatible, on the operational level, with our legislation, the intervention itself integrates the crime under article 348 of the Italian Criminal Code, if performed by a person not qualified to exercise the medical profession, and this also in consideration of the delicacy of the circumcision, which however interferes on the physical integrity of the person.

3. The subjective element of malice (in the present case, that of concurring in the offence of abusive exercise of the medical profession) must be excluded even when there is an unavoidable error on an extra-criminal provision that integrates the criminal offence, since the former also becomes criminal for the purposes of the ignorantia legis rules, with the effect that the error, if excusable, must be appreciated as a factor excluding culpability.
For the purposes of assessing the inevitability of such an error of law, i.e. of assessing the process of formation of the defendant's will, account must be taken both of objective factors that may have determined the ignorance of the unlawfulness of one's own behavior, and of subjective data relating also to the agent's knowledge and abilities and to any cultural conditioning.

(In the present case the defendant, a Nigerian citizen, subjected her son, who had just been born, to an intervention of circumcision by a person who was not qualified for the exercise of a medical profession and, few hours after the operation, the baby suffered a massive hemorrhage, which required his urgent hospitalisation. The Court of Appeal had condemned the defendant, finding her guilty of complicity in the offence of abusive exercise of the medical profession, qualifying the act as "medical" and therefore to be reserved for authorised persons. It had also pointed out that the defendant had been driven by merely cultural motivations, as ritual male circumcision is not a typical rite of the Catholic religion, professed by women, but a tradition of the community of belonging: for this reason it had excluded the justification of the exercise of the right to religion, and considered irrelevant (under article 5 of the Italian criminal code) any error or ignorance about the medical nature of the act, as affecting the criminal precept.
The defendant submitted a recourse, arguing in particular: 1) that ritual male circumcision should not be considered a “medical act” (since it is not intended to cure and was in any case is characterised by great simplicity) and 2) the defendant’s lack of awareness that she was subjecting her son to a medical intervention and her error regarding the limits within which she was permitted to practice ritual circumcision.
The Court of Cassation upheld the recourse, considering it well-founded and annulling the appeal sentence without referral, because "the fact did not constitute a crime". In fact, after an excursus on the symbolic meaning of ritual circumcision in the Jewish religion and the more problematic nature of the one practiced by other ethnic groups (for which the offence of the abusive exercise of the medical profession can abstractly be envisaged), the Supreme Court ruled out the existence of the subjective element of the defendant, in application of the principles set out above and recognising in particular the defective connection established between the Italian legal system and a person of African origin, with a low level of culture and not yet integrated (circumstances which mitigate the duty to inform on the criminal rules), who, moreover, immediately took care of the child when after realising the consequences of the intervention.)