We have previously looked at the liability questions surrounding injuries and deaths linked to herpes transmissions from Rabbis during ultra-Orthodox circumcision rituals known as metzizah b’ peh. During the ceremony, the rabbi or mohel removes blood from the wound with his mouth. The latest tragedy occurred with the death of a two-week-old boy in Brooklyn who contracted herpes from the Rabbi. In 2005 another infant died from the same alleged transmission from a rabbi. This could raise a difficult question on defining the “reasonable rabbi.”
The latest infant died on Sept. 28, 2011, and the cause of death was listed as “disseminated herpes simplex virus Type 1, complicating ritual circumcision with oral suction.”
During the ceremony known as the bris, the rabbi or mohel removes the foreskin from the baby’s penis, and with his mouth sucks the blood from the incision on the penis.
There is a criminal investigation reportedly on the way in the district attorney’s office in Kings County Brooklyn. That could make for an interesting case when the practice is 5000 years old and and traced to Abraham. While health officials have long objected to the practice is dangerous, religious leaders have refused to end it — and Jewish parents continue to follow the practice despite the known risks. The problem is that Type 1 herpes is common and the symptoms can be subtle or non-existent for the carrier.
Any criminal prosecution would likely be based on reckless rather than true intent as well as child endangerment. Here is one such provision for a misdemeanor offense:
§ 260.10 Endangering the welfare of a child.
A person is guilty of endangering the welfare of a child when:
1. He knowingly acts in a manner likely to be injurious to the
physical, mental or moral welfare of a child less than seventeen years
old or directs or authorizes such child to engage in an occupation
involving a substantial risk of danger to his life or health; or
2. Being a parent, guardian or other person legally charged with the
care or custody of a child less than eighteen years old, he fails or
refuses to exercise reasonable diligence in the control of such child to
prevent him from becoming an “abused child,” a “neglected child,” a
“juvenile delinquent” or a “person in need of supervision,” as those
terms are defined in articles ten, three and seven of the family court
Endangering the welfare of a child is a class A misdemeanor.
Yet is there a “substantial” risk of transmission given the high numbers of such ceremonies and handful of transmissions? Criminal negligence statutes have long been controversial by taking a civil tort standard and charging that conduct as a crime. The added problem in this case is the consent of the parents as guardians for the child. If the Rabbi is liable, wouldn’t the parents be liable as well? Such a prosecution would come with a heavy political price for the District Attorney in Brooklyn and likely to trigger intense backlash from the Orthodox community.
There is a strong tort case to be made in such cases. I would think that Rabbis at a minimum should be tested to determine if they are carriers. If so, they should not engage in this practice. Then there is the question whether, even with protocols and testing, this ancient practice is per se negligent in mandating oral contact with an infant’s bleeding penis. There are many ancient practices of religions that are no longer considered safe or lawful. Female genital mutilation (FGM) has long been defended as culturally and religiously required, but has resulted in criminal convictions in this and other countries. This practice is obviously far less intrusive and harmful. However, it is not enough to claim a religious exemption to an act that would be otherwise viewed as grossly negligent. The question remains whether a reasonable rabbi would engage in this practice or to do so without taking particular steps for the protection of the infant.