The Reasonable Rabbi Standard? Brooklyn Prosecutors Reportedly Investigate Rabbi Who Transmitted Herpes To Baby In Circumcision Ceremony

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.

Source: ABC and Daily News

53 thoughts on “The Reasonable Rabbi Standard? Brooklyn Prosecutors Reportedly Investigate Rabbi Who Transmitted Herpes To Baby In Circumcision Ceremony”

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  2. Commoner, I have a really hard time believing the Ultra-Orthodox make up 10 percent of the Jews. Where did you find that statistic?

    1. Yeah they’re “trying” to save babies….but they won’t try too hard!! We wouldn’t want to offend anyone by stopping a totally BARBARIC practice from the BRONZE AGE!!! I mean as long as the rights of backwards indivuals to practice ridiculous traditions that have killed babies are not infringed upon I am happy!! Being offended trumps killing a baby, right? If I went and killed my sons, & then said God told me to, would you think it was ok because it is in the Torah? No, you’d think I was a nutjob and put me in jail. I love how people are denying it is true. How typical of religous people to deny the problems that can arise from blindly following a leader. Face it – its a PARABLE. No one takes all of it literally – no one. Its impossible. You don’t believe in infanticide, you don’t believe in rape, and you don’t believe in selling your daughters SO YOU DON’T FOLLOW THE TORAH TO THE LETTER. “Who also hath made us able ministers of the new testament; not of the letter, but of the spirit: for the lettter killeth, but the spirit giveth light” Corinthians 3:6 ( I understand that this is from the NT).

  3. This is obviously very inaccurate. Rabbis would NEVER “suck the blood” from a penis, or from anything else for that matter.

    One major dietary law for Jews AND Christians (if you believe in the Noahide laws) includes NEVER eating blood, because the blood is the life of a thing. In fact, they are to drain all the blood from an animal that they are slaughtering for food in order to be able to eat it, THEN they salt it over night to drain the rest of the blood from it.

    So for them to suck the blood out of an incision is absolute nonsense, and anyone practicing such barbarism is NOT a true Jew, and NOT practicing the laws of HaShem.

    Thanks for a completely bogus ridiculous, and anti-semetic false article.

  4. -The first sentence of the above article says that the blood sucking is done by the “ultra orthodox”. Every article I’ve read said it was uncommon. What do I know, I’m not Hasidic.
    -The city tried to crack down on this practice the last time a baby died. The Rabbis basically said screw you and refused to regulate. The NY Times article talks about this. People fear it may go “underground” if they crack down. No one is regulating it now; it may as well be underground all ready. Its not like its happening in hospitals.
    -I think the reason why this story is so huge is the Rabbi’s refusal to regulate this practice. Its bad enough that this happened, but to refuse to prevent it from happening again is arrogant. They think that if they deny it than it never happened. This is what the Vatican does when they get busted.
    – @Mike Spindell- My favorite thing about Judaism is the not proselytizing bit. People should live and let live. I personally have a hard time with the whole circumcision/doing (insert practice here) solely because God told you to thing. I feel bad for the babies ok. I don’t see the point of amputating an existing part of the penis that is filled with nerves and that serves a purpose sexually. I understand that it is a tradition, I just don’t see why people can’t just have a bris and gesture as if they were cutting it but not actually cut it. There are plenty of rituals from ancient books that have been modified in order to be more humane. Do you insist on human and animal sacrifice too?
    Adult men who have circumcisions say it is very painful and there is no way it isn’t for a baby.The majority of these men say sex is less pleasurable after. If people want to cut foreskins SOOOO badly they should let the children decide for themselves. What is the harm in that? They don’t do that though, probably because the boys would refuse and wouldn’t you? I mean you’re a man-if you were “intact” today would you willingly have a circumcision because that is the tradition? I’m willing to wager most men would say HELL NO and most babies would say the same given the chance. I mean what is (the more widespread form of)female circumcision but amputating part of the clitoris. Because that is done in Africa it is foreign to most westerners but in say Mali it is very common.

  5. @Liz

    The article clearly states that Zweibel (who is a normal guy who opposes mezizah bpeh at least unsupervised) says that it is practiced by the majority of those who perform circumcision. It is not just the hassidim or Ultra Orthodox.

    Also, although one medical examiner said that it was mezizah bpeh that caused this, I would like to see other doctors and scientific authorities corroborate the findings. This will make it easier to halt or supervise the practice.

  6. I’m sorry some people here don’t not like the idea of circumcision and certainly the Ultra-Orthodox methodology should be changed. However, I would urge those of you who feel that way to definitely not have your male children and let us Jews have our outmoded beliefs, quaint and silly as they may seem. Remember, Jews are the only biblical belief that doesn’t proselytize.

  7. “Medical studies that say that circumcision makes sex less pleasurable”

    Possibly because it make the head slightly more insensitive, however, that is perhaps a sexual boon to both female and male as retold below:

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