Most of the facts of the indictment aren't in dispute. In March 2016, an asylum seeker from Eritrea whose name has only been given as A. circumcised her 4-year-old son, M. She did it herself in her home in Eilat and didn't use the instruments used in Jewish circumcision rituals.
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The question is whether the woman committed a crime. The State Prosecutor’s Office says she did. The indictment includes charges of grievous bodily harm and child abuse. If she is convicted of all the charges, the maximum sentence is 14 years in prison.
At the Be’er Sheva District Court in recent months, the woman has completely denied that she performed a forbidden or illegal act.
The woman’s lawyer, Moshe Serogovich from the Public Defender’s Office, says not only does no law exist regulating the work of mohels, Jewish ritual circumcisers, but A. acted according to her cultural heritage. This cultural defense, as it were, would probably set a precedent in Israel if it works. A ruling is expected soon.
A., 37, has been in Israel since 2008, after she fled the village where she was born in Eritrea. In recent years she has worked as a cleaner in a hotel in Eilat, where she lives.
“This is my son, my baby,” she told the court. “After so many requests I made to all sorts of places about how to do it, I took it upon myself and cut. In Ethiopian culture, Eritrean culture, anyone who knows how can do the circumcision.”
A. is not fluent in Hebrew. The transcript of her testimony was translated into Hebrew from Tigrinya, a language mainly spoken in Eritrea and northern Ethiopia.
The transcript provides a collection of cut-off sentences, so much so that Judge Aharon Mishnayot told the prosecutor “to consider very well the contradictions [in her testimony], because some of them are the result of a lack of understanding of the language.”
The dispute is over the meaning of the word “circumcision” or to be more precise, over the conditions in which a circumcision takes place, when, who performs it and how.
“You can only imagine the outcry that would have come from Israel, all its organizations and institutions, and from Jews around the world if a foreign country put Jewish men or women on trial for crimes for conducting a circumcision on a Jewish baby," Serogovich says.
Actually, one need not imagine. In late 2013, the Parliamentary Assembly of the Council of Europe adopted a resolution on “children’s right to physical integrity” in which it called on its 47 member states to place restrictions on circumcision.
It urged countries to “adopt specific legal provisions to ensure that certain operations and practices will not be carried out before a child is old enough to be consulted.” In addition to circumcision for religious reasons, the resolution covered female genital mutilation, corporal punishment and the submission to or coercion of children into piercings, tattoos or plastic surgery.
Israel's Foreign Ministry called the resolution a “serious moral stain” and “an intolerable attack both on the respectable and ancient religious tradition that lies at the base of European culture, and on modern medical science and its findings.” Rabbi Menachem Margolin, the director of the European Jewish Association, called it another embarrassing attempt to interfere with Jewish tradition accepted for thousands of years.
In October 2015, the council dropped its efforts to ban male circumcision and accepted the custom as part of religious freedom in Europe.
Not regulated by law
As sources in the State Prosecutor's Office put it, the indictment against A. stemmed from the need to “draw red lines” not everyone can carry out a circumcision as they please. But Serogovich says it's hard to draw such lines without a law or regulations requiring training to conduct a circumcision.
According to the indictment, “The defendant held the complainant in her hands and instructed him to sit in silence,” and “the defendant did not respond to the complainant’s crying and appeals, and continued to cut his skin in the upper part of the sexual organ.” As Serogovich puts it, this could be applied to any circumcision, regardless of religion or nationality.
Circumcisions are not regulated by law. Because it is a religious ceremony, it is not required to be performed or supervised by a doctor, and all attempts to legislate the matter have been defeated.
A joint committee of the Chief Rabbinate and the Health Ministry is responsible for licensing mohels, but those who have not completed the licensing process are still allowed to perform circumcisions, says Yacoov Alter, an attorney and the spokesman for the Chief Rabbinate. The Rabbinate estimates that in addition to the 350 or so certified mohels, another 250 or so are unlicensed.
In other cases that have reached the High Court, this lack of regulation has been criticized, but Alter says he doesn't think legislation is necessary. Of the 65,000 circumcisions conducted in 2016, only about 40 times did the baby require medical treatment, usually because of light bleeding.
According to the indictment of A., a medical examination three days after the circumcision found minor swelling at the end of the boy's penis, and the child might need surgery in the future to correct the mother's mistakes.
A urologist who examined the boy put it differently. “I saw a cut that did not bleed during the examination, and there was no need for urgent intervention,” he testified in court. When asked if the penis would remain damaged in the future, he answered: “In general, it doesn't look that way, though it's possible the circumcision should be completed the right way.”
The Eritrean tradition
Still, there's Serogovich's cultural defense: A circumcision as the mother performed it is still acceptable today among members of the Eritrean Orthodox Church, according to Galia Sabar, an African studies professor at Tel Aviv University. Sabar told the court that in the Eritrean Orthodox Church, the circumcision of boys is a “commandment that must be fulfilled, and there is no room for interpretation or personal wishes.”
It is accepted to perform the ceremony a few days after birth, but it is still common to do it at a later age, she says. Eritrean circumcisers learn from their more experienced colleagues, and women also serve as circumcisers, particularly in remote rural areas.
A. told the court that in the region where she grew up, it was customary for women to perform the procedure, and she learned how to do it from a female relative. Serogovich says A.'s actions after the circumcision show she did not think she had done did anything wrong or illegal.
She brought her son to preschool three days after the circumcision, as is the custom in Eritrea, and asked him to lower his trousers so she could explain to the teacher what had happened. The fact that A. did not take M. for medical treatment at a hospital led to an additional charge: abuse of a minor.
The preschool teacher reported the incident to the welfare authorities, which sent people to A.’s home “to remove her children to an emergency absorption framework.” A. reportedly tried to prevent the police from taking her children; she screamed, kicked and bit the officers to prevent one of her daughters from being taken. These actions led to charges of interfering with an officer in the line of duty an assaulting a minor.
After a few weeks in jail she was released to house arrest, which was later canceled. Her two daughters were returned to her partner a few months later, but she is not allowed to spend time with them. The boy M. is still with a foster family.
At the closing arguments in court last week, the prosecution claimed that A. did not perform a circumcision but punished her son because he had defecated in bed. This claim was based on a few sentences, not necessarily clear, that the teacher and foster parents said M. had said. But the mother vehemently denies this charge, and her lawyer says such a claim is not even hinted at in the indictment.
The indictment stems from “the inability of the state to comprehend cultural differences,” Serogovich says. “For us, a man with a beard and kippa says a few blessings and performs the bris for an 8-day-old baby, and that seems to be the most natural thing in the world to us. But if the boy is a bit older and the instruments are different, the same act is suddenly considered abuse that needs to be punished severely.”
But according to one of the prosecutors, "We need to draw the line even for the claim of cultural defense. Even in cases of domestic violence we sometimes run into similar claims in which beating women is acceptable in the defendant’s society. In a country composed of different societal groups it's a problematic process, and not just because it creates a situation in which different victims receive different protection.”