Do we need a law against incest?
May. 23rd, 2012 12:11 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
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7rin_on_adoptionDo we need a law against incest?
The European human rights court has upheld a German ruling against sibling incest, but some questions remain unanswered
Paul Behrens 15 April 2012
The European court of human rights is no stranger to controversy. Last Thursday, however, Strasbourg played it safe and did the expected. The court ruled it was all right to have a law against incest.
The man who brought the case was Patrick Stübing – a young German, who was separated from his family as a little child. When he was in his 20s, he looked for and found his biological mother. He also found his sister, with whom he fell in love. After their mother's death, the siblings began a sexual relationship, which produced four children.
It is not the only case in which biological siblings met only later in life and began sexual relations. One of the theories to explain the phenomenon is that the absence overcomes the "Westermarck effect" that usually applies: kids who grow up together tend to become desensitised to mutual sexual attraction.
Germany, in line with many European countries, criminalises incest. By 2005, Stübing had been convicted several times – he appealed, and the case eventually reached the German constitutional court. That the court upheld a law whose roots it traced back 500 years is not altogether surprising. What is surprising is that its vice-president, Winfried Hassemer, dissented – and dissented quite forcefully.
Strasbourg was less brave. Thursday's judgment went in favour of Germany – unanimously. It might even have been the right thing to do. But it should not be the ending point of the debate.
The rationale for the prohibition of sibling incest is not all that easy to find. The German court referred to the potential damage to the structure of family life, and there may be some truth in that. Only, in the Stübing case, the family unit had never existed. The partners met as virtual strangers, and the relationship was one between consenting adults.
The constitutional court also said that the prohibition of incest was rooted in "cultural history". Not quite convincing, and a lot depends on the changing concept of the crime. Bach married his cousin. Field Marshal Moltke married his step-niece. In other cultures and other times, the rules were even more relaxed. Cleopatra married two of her brothers; her parents had probably been siblings too.
Then there is the danger of the passing on of genetic diseases. That is a difficult one. On the basis of this reason, should all prospective parents undergo genetic screening? And there is that awkward reminder of the past: eugenics of course was immensely popular with the Nazis, who exhorted people to check the family trees of prospective spouses for nasty diseases that might lurk in the branches.
And finally, the question of morals. That sounds old-fashioned and smells of great-aunt Mabel's Bible class. All the same – large parts of modern criminal law cannot be adequately explained without the moral views behind the rule.
If a man hacks off part of his body, boils it in sauce hollandaise and serves it to a friend, people in this country tend to find this morally repugnant. If a man pummels the face of a fellow human being, but does so by Queensberry rules, people buy tickets for the event.
That is not a question of the victim's consent. Consent may exist in either case. It is a question of the values to which society attaches such importance that their violation can result even in imprisonment.
If it is so difficult then to make a case against incest, did the European court get it all wrong? Not quite. The court was not really asked to say if a law against incest is a good thing. It had to decide if the state is allowed to make such a law. That is a different question.
The court did find that the state had interfered with Stübing's right to privacy – a right that the European convention on human rights guarantees. But human rights come with limitations. In the case of privacy, they are written directly into the convention: the state may interfere with your right if certain interests make this necessary – "protection of morals" is one of them.
And states have a wide discretion in deciding what exactly their morals require. Morals are strange animals, and it is probably not a good idea to try to legislate them for all of Europe. Certainly not in the case of incest, which has known considerable variations from country to country (need one recall that "annual blister, marriage with deceased wife's sister"?).
Still – there must be limits. What if a state banned interracial marriages or allowed slavery? In its own time, that too has been hailed as a "moral" choice. And Strasbourg does acknowledge that the "margin of discretion" given to individual states cannot be without restrictions – it goes "hand in hand with a European supervision".
Then again: why is European supervision appropriate in some cases, but not where the law puts a man in prison because he slept with his sister? It is a lingering concern. The Strasbourg judges have spoken; but the big debate on incest has not even begun.
The European human rights court has upheld a German ruling against sibling incest, but some questions remain unanswered
Paul Behrens 15 April 2012
The European court of human rights is no stranger to controversy. Last Thursday, however, Strasbourg played it safe and did the expected. The court ruled it was all right to have a law against incest.
The man who brought the case was Patrick Stübing – a young German, who was separated from his family as a little child. When he was in his 20s, he looked for and found his biological mother. He also found his sister, with whom he fell in love. After their mother's death, the siblings began a sexual relationship, which produced four children.
It is not the only case in which biological siblings met only later in life and began sexual relations. One of the theories to explain the phenomenon is that the absence overcomes the "Westermarck effect" that usually applies: kids who grow up together tend to become desensitised to mutual sexual attraction.
Germany, in line with many European countries, criminalises incest. By 2005, Stübing had been convicted several times – he appealed, and the case eventually reached the German constitutional court. That the court upheld a law whose roots it traced back 500 years is not altogether surprising. What is surprising is that its vice-president, Winfried Hassemer, dissented – and dissented quite forcefully.
Strasbourg was less brave. Thursday's judgment went in favour of Germany – unanimously. It might even have been the right thing to do. But it should not be the ending point of the debate.
The rationale for the prohibition of sibling incest is not all that easy to find. The German court referred to the potential damage to the structure of family life, and there may be some truth in that. Only, in the Stübing case, the family unit had never existed. The partners met as virtual strangers, and the relationship was one between consenting adults.
The constitutional court also said that the prohibition of incest was rooted in "cultural history". Not quite convincing, and a lot depends on the changing concept of the crime. Bach married his cousin. Field Marshal Moltke married his step-niece. In other cultures and other times, the rules were even more relaxed. Cleopatra married two of her brothers; her parents had probably been siblings too.
Then there is the danger of the passing on of genetic diseases. That is a difficult one. On the basis of this reason, should all prospective parents undergo genetic screening? And there is that awkward reminder of the past: eugenics of course was immensely popular with the Nazis, who exhorted people to check the family trees of prospective spouses for nasty diseases that might lurk in the branches.
And finally, the question of morals. That sounds old-fashioned and smells of great-aunt Mabel's Bible class. All the same – large parts of modern criminal law cannot be adequately explained without the moral views behind the rule.
If a man hacks off part of his body, boils it in sauce hollandaise and serves it to a friend, people in this country tend to find this morally repugnant. If a man pummels the face of a fellow human being, but does so by Queensberry rules, people buy tickets for the event.
That is not a question of the victim's consent. Consent may exist in either case. It is a question of the values to which society attaches such importance that their violation can result even in imprisonment.
If it is so difficult then to make a case against incest, did the European court get it all wrong? Not quite. The court was not really asked to say if a law against incest is a good thing. It had to decide if the state is allowed to make such a law. That is a different question.
The court did find that the state had interfered with Stübing's right to privacy – a right that the European convention on human rights guarantees. But human rights come with limitations. In the case of privacy, they are written directly into the convention: the state may interfere with your right if certain interests make this necessary – "protection of morals" is one of them.
And states have a wide discretion in deciding what exactly their morals require. Morals are strange animals, and it is probably not a good idea to try to legislate them for all of Europe. Certainly not in the case of incest, which has known considerable variations from country to country (need one recall that "annual blister, marriage with deceased wife's sister"?).
Still – there must be limits. What if a state banned interracial marriages or allowed slavery? In its own time, that too has been hailed as a "moral" choice. And Strasbourg does acknowledge that the "margin of discretion" given to individual states cannot be without restrictions – it goes "hand in hand with a European supervision".
Then again: why is European supervision appropriate in some cases, but not where the law puts a man in prison because he slept with his sister? It is a lingering concern. The Strasbourg judges have spoken; but the big debate on incest has not even begun.