Asks Dr Paul Behrens, University of Leicester.
Some issues just refuse to go away. When the European Court of Human Rights last Thursday ruled that it was alright for Germany to have a law against incest, parts of German (and indeed European) society must have breathed a sigh of relief.
Incest has the semblance of an eccentric aunt who is banished to the attic. Folks don’t quite know what to do with the old lady, and it is embarrassing to acknowledge her existence. With the recent judgment from Strasbourg, the door to the attic seems shut, and that is one less thing to worry about.
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 twenties, 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. The court upheld the law with a majority of seven to one; as did the Strasbourg court. This time, the decision was unanimous.
Since then however, events have taken a strange turn: the aunt in the attic bangs at the door. The debate has refused to die down.
In Germany, Hans-Christian Ströbele, a prominent voice in the Green party, was particularly outspoken: in his view, the criminalisation of incest is a remnant from the bad old days, when adultery and homosexuality were still punishable. Even members of the German government are critical about the current law: the German Minister of Justice, Sabine Leutheusser-Schnarrenberger, talked publicly about the insufficiency of criminal law where incest is concerned, and has suggested preventative measures and therapy.
The Conservative parties on the other hand left no doubt about their position on the matter, with the Bavarian Minister of the Interior (Hermann) reportedly saying that the health of the population must be protected. The ‘health of the population’?
Hermann, presumably, refers to the danger of genetic diseases which might be passed on to children of incestuous couples. (Two of Stübing’s children are disabled – though it is not clear if incest is the reason for their disabilities). But the law against incest is not a law against procreation: siblings who are not able to have children, are still banned from having sex. And there are other, more fundamental, issues. Is there a duty to society to create only healthy offspring? Would that not mean that criminal law should prohibit intercourse even among non-related partners where there is a danger of passing on hereditary diseases? Few people, it seems, would be prepared to go as far as that.
Then there is the damage that incest may cause to the structure of the family unit, and its potential danger to trust within the family. But the law against incest is not a law against disturbances to family life. It did apply to Stübing, even though in his case, the family unit had never existed. The partners met as virtual strangers; and the relationship was one between consenting adults.
Nor is that necessarily a one-in-a-million case: in an age where artificial insemination through anonymous sperm donors is an option, there is a real possibility that siblings meet later in life, without ever having shared a family structure. And there are other persons who never belonged to the family unit (absent parents or grandparents), but to whom the law applies.
And finally, there is the question of morals – the law might be there because it corresponds to the moral views of society. That, of course, is a tricky issue. Morals have not had a good press – they conjure up the image of the priest who knocks on your door on Friday to make sure you’re having fish for dinner. If a law relies on the moral views of its day, it pits the might of society against the feeble wishes of the individual. Society has its rights too – but in cases in which individuals are not causing any harm or in which harm is done only between consenting partners, it becomes difficult to say why the views of society should win out.
All the same, a good part of criminal law cannot be adequately explained without the morals behind the rule. If a man hacks off his thumb and feeds it to a friend, the criminal law of many countries will come down on at least one of them, even if both consented to the act. Boxing on the other hand, with all its eye injuries, broken ribs, internal bleeding and brain damage, has for some reason attained the name of the ‘noble sport’. Academic fencing is still carried out with sharp weapons in parts of Europe, and participants tend to wear their scars with pride. Morals are fickle things.
The Strasbourg judgment, it seems, will not be the end of the matter – nor should it be. One thing must be understood – the judges at the European court did not say that the State must have a law against incest; that was not the question. They merely confirmed that a State was not prevented from having one.
If it is a wise thing to criminalise incest, is a different matter. It may be recalled that one judge (Hassemer) at the German Constitutional Court dissented from the views of his colleagues. One of the points he mentioned was the particularly harsh nature of criminal law. It is a heavy tool in the hands of the State. It should be used as ‘ultima ratio’. And he is right.
There is a tendency to run to the criminal law every time milk has been spilled. For some issues, punishment may remain the only appropriate instrument. For others, it is highly unsuitable. If children are born to an incestuous relationship, and if their parents are good to them, one may ponder the wisdom of locking up their father and putting the kids into care.
Dr Paul Behrens teaches international law at the University of Leicester. His research interests include Public International Law and Constitutional Law. He has written expert commentaries for leading British and German newspapers (including the Guardian and the Süddeutsche Zeitung).