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
act.
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”

  1. Bdaman ((*_))*
    someone mentioned testingonce a year. That would not help, you can get Herpes during that year.
    (And I also had thought about the implications in any other context of mouth to penis contact – why is it pedophilia elsewhere but here okay ritual? Taken to its utmost extreme, given the level that we hear about in the RC church, they could start calling it accepted ritual.

  2. Well anon, if you have issues with the other commentators, I suggest you take it up with them. In re my comments, you’re simply talking out of your ass in your original comment and in your interpretation of ““but quite simply this is the kind of thing that happens when you allow belief and tradition to trump science and fact” as being inclusively indicative of my position on Free Exercise. While it may (read that word carefully) be indicative of my personal feelings about religion in general, to say that it summarizes my position on Free Exercise is simply another false attribution; a lie on your part. Would you care to Test your hyperbolic distortions some more? I’ll be glad to smack you down again.

  3. Okay Gene,

    “but quite simply this is the kind of thing that happens when you allow belief and tradition to trump science and fact. Considering the wide range of blood borne pathogens we know about now, this practice should have long ago been relegated to the dustbin of the past.”

    I would say the first sentence quoted indicates what you think of freedom of religion. The second is vague and can refer to either circumcision or this oral penile contact, so I’ll give you that.

    However, it’s disingenuous to read many of the other comments in here as about that contact and not about circumcision itself since they scream circumcision in so many sentences.

  4. Two five year old boys are standing at the potty to pee.

    When one says, ” Your thing doesn’t have any skin on it!”

    ” I’ve been circumcised.” Says the second boy.

    ” What does that mean?”

    “It means they cut the skin off the end.”

    ” How old were you when it was cut off?”

    ” My mom said that I was two days old.”

    ” Did it hurt?”

    ” You bet it hurt, I couldn’t walk for a year!”

    🙂

  5. Seamus,
    I am with you on the issue of RCC bishops and priests being almost exempted from prosecution when the authorities have evidence of child molestation and rape.

  6. One crazy story. I understand Mike S.’s view of a Bris, but I never would have imagined what the orthodox version of the circumcision process entailed. I would agree with Prof. Turley that all Rabbi’s should be tested for diseases and that they present this yearly exam as evidence of their ability to perform the ceremony. Now, the second issue in my mind is the idea of any adult putting his or her mouth on the penis of any child is akin to child abuse no matter what the religious issues are in my opinion in addition to the criminal issues that Gene suggested.

  7. Hey, anon, your lack of comprehension about the 1st Amendment is simply staggering. Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878). Regulation of practice is permissible for other valid public policy considerations and although Reynolds considered a criminal matter as the crux of its reasoning, I’m quite certain that public health threats such as those posed by blood borne pathogens would withstand strict scrutiny.

    No one mentioned outlawing circumcision other than you. What I suggested was modification of the practice to prevent transmission of blood borne diseases, not an elimination of the practice of circumcision. If you’re going to try to deploy the tactic of reductio ad absurdum – especially when combined with a false attribution, you should learn how it works before attempting that maneuver on someone much more versed in argumentation than you are apparently.

  8. The mohels should be tested.

    I do not know what percentage of mohels put their mouths around the penis. I do not know what percent of mohels, rabbis, orthodox communities would feel stopping that part of the practice would destroy the purpose of the ritual or covenant.

    Ya know what, I don’t know this stuff, but I do know most people pontificating on this issue don’t know it either. Including you guys.

    I would be very happy to see circumcision go away entirely. I’ve never noticed the mohel do this in the brises I’ve attended, but as Mike said, that’s not the part of the baby you naturally focus on. I’m okay with being circumcised, but l’d be very happy to see them go away. I have mixed feelings about the time I had the honor of holding my nephew as he was circumcised. I’d like to see circumcision replaced with a ritual nicking of the foreskin as some have suggested.

    However,

    Hey Gene up there, First Amendment is a real pisser to you ain’t it!? And to the rest of you. Oh, you speak a fine game about civil liberties, but you just hate them in reality.

    However,

    Way before requiring a government mandate to stop circumcisions, it would be nice to:

    a) talk to mohels and see why this part of the practice can’t be stopped
    b) test mohels and require regular testing
    c) implement if required (and it doesn’t seem to be) some sort of boundary (latex, …) between mouth and penis

    w) replace circumcision with a ritual nicking of the foreskin
    z) outlawing circumcision entirely

    And of course, male circumcision is vastly different from female circumcision.

    It is telling the number of people that jump straight to outlawing circumcision. Is this ignorance? Their practice of their religion of anti-theism? Just the fact they are judgmental busy bodies mashed in with their overall intolerance of others? Anti-semitism?

  9. With their simultaneous paranoia about shariah law slipping into our society and apparent obliviousness to the existence of the “establishment clause” of the First Amendment the Republicans are sure to have a hilarious position on this one. The backwards lunacy of Shariah and the laws of Leviticus are almost identical. Courts have been fine with denying Christian Scientists the opportunity to abuse/kill their kids via religeous dogma. But then, I’m not sure the Christian Scientists have to kind of political clout enjoyed by the ultra-Orthodox Jews in New York. Last week (here in Chicago) some black ministers went beyond merely endorsing a specific candidate (Triple J) and said that Satan was behind his rival in the primary. No one from the IRS/Justice Dept. will go after an African American church’s tax exempt status in a million years for this kind of stuff. (Or Pat Robinson for that matter). When it comes to religeon butting against civil/secular law in this country, it all comes down to money and electoral power. Why haven’t high ranking priest/bishops in the Catholic Church been prosecuted criminally for hiding scores of rapists? Why can’t Native Americans practice centuries old rituals involving peyote on their supposedly sovereign land? Money and votes or a lack thereof.

  10. Circumcision is not limited to Jewish beliefs:

    Male circumcision is the surgical removal of some or all of the foreskin (prepuce) from the penis. Early depictions of circumcision are found in cave paintings and Ancient Egyptian tombs, though some pictures are open to interpretation. Religious male circumcision is considered a commandment from God in Judaism. In Islam, though not discussed in the Qur’an, male circumcision is widely practised and most often considered to be a sunnah. It is also customary in some Christian churches in Africa.

    Estimates by the World Health Organization (WHO) suggest that 30 percent of males worldwide are circumcised, of whom 68 percent are Muslim. The prevalence of circumcision varies mostly with religious affiliation, and sometimes culture. The timing of circumcision similarly varies, though it is commonly practised between birth and the early twenties.

    (Wikipedia, emphasis added). The practice of thumbsucking is also practiced in Islam, Judaism, and Christianity.

  11. Holy fellatio batman.

    Don’t blame this on Abraham, it is a Highway 61 thingy:

    Oh God said to Abraham, “Kill me a son”
    Abe says, “Man, you must be puttin’ me on”
    God say, “No.” Abe say, “What?”
    God say, “You can do what you want Abe, but
    The next time you see me comin’ you better run”
    Well Abe says, “Where do you want this killin’ done?”
    God says, “Out on Highway 61”

    (War is The Highway 61 of the 1%). Hey, lets open a hostel hospital out on highway 61 and call it religion.

  12. In my life I’ve been to many such ceremony’s, “Bris”and/or “Brits” and I don’t remember mouth to mouth contact being used. In truth though if you take part in the ceremony your eyes are more involved in following the baby’s facial expressions. As a father of girls I ever had to have the ritual done for my children, but had the been boys, I would have considered it my duty. I would nevertheless had it performed by a “Mohel” who uses the more modern methods. For those interested this gives a good summation of the process. http://en.wikipedia.org/wiki/Brit_milah. I am of course happily circumcised.

  13. This is sad…. But I don’t think this will change the practices anytime soon…..

  14. I’m all for religious freedom and will defend some pretty odd practices but not this. I don’t think the state would be out of line to criminalize any oral-genital contact between a baby and ANYONE.

  15. I’m truly sorry for this tragedy visited upon the parents and this child, but quite simply this is the kind of thing that happens when you allow belief and tradition to trump science and fact. Considering the wide range of blood borne pathogens we know about now, this practice should have long ago been relegated to the dustbin of the past. It’s unconscionably risky. That being said, should the Rabbi in this case be prosecuted criminally or civilly? I think a criminal prosecution might bring an impetus to change/abandon the practice as would a civil suit, however, I don’t think a civil suit would be ethically the right thing to do. Why? Assumption of risk as a function of parental proxy. The practice is an inherently bad practice from a public health standpoint and should be discouraged by public policy as an institutional practice, but the ultimate decision on whether to follow it or not did rest with the parents. See Free Exercise and the Reynolds case if you want to further understand my reasoning on this matter.

  16. Can parents give permission for something to be done to their child (not medical) that they know can carry potentially lethal risk? I am not a lawyer, can they enter inito a contract that negates liability?
    (I had never heard of his practice before (the mouth part). So many religious practices that seem utterly bizarre (but maybe in old days this was een as sanitizing the cut(?) )

  17. As noted, herpes is deadly to infants. Responsible parents should insist on the modification of the ritual to avoid contact between one person’s mucous membranes and their own son’s open wound.

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