Why is incest a crime?

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).

7 Comments

  1. lorraine
    Posted 19/04/2012 at 16:13 | Permalink

    The couple in question did not grow up together, they had no knowledge of eachother, neither holds any power or status over the other. They did not enter into the relationship after years of living as siblongs. I fail to see how their union is wrong. Such a law would He useful in an ancient society with a need to protect and increase its numbers. This is not Really why anyone enters into relationships now. So to criminalize two strangers, people who are basically new to eachother for having a relationship makes no sense.

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    Carl Reply:

    Because cultural grooming and family life grooming could occur. It will become ‘normal’ to have relationships with people you are almost totally completely like, and abnormal to have relationships with those who are different. Intolerance will increase, under the name of tolerance. As it has with terrorism. Do you tolerate the intolerant? It is very likely, if someone like that got into a position of power, they would find it ‘strange’ for anyone even to have a different opinion to them. It might not do, but it is likely. All under the name of tolerance.

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    Chris Williams Reply:

    See below. Cultural grooming occurs with some Asian groups for first cousins but that has not been made illegal. I is a much bigger problem than siblings would ever be. Have you experience of being groomed? It seems that it is somewhat of an obsession.

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  2. Posted 19/04/2012 at 12:17 | Permalink

    Consensual incest is still illegal in some places because some people try to control the sex lives of other consenting adults. An adult, or someone of the age of consent, should be free to share love, sex, residence, and marriage with any consenting adults. There is no rational reason to deny consenting adults who are close relatives the freedom to be together in whatever way they desire that would be consistent in application elsewhere. For example, some people cite an increase in the risk of children being born with birth defects (take a random parent-child or brother-sister couple and the odds are still well over 90% that a child born to them will be healthy and “normal”, but people still cite this). But they don’t deny people who KNOW they have serious inheritable diseases their reproductive rights, nor do they bar women over 35 their reproductive rights even with the increase risks to the child. Also, many couples are unable or not willing to have children in the first place. Most sex does not lead to birth.

    One person being disgusted is not a reason another person should be prevented by law from doing something in the privacy of their bedroom.

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    Carl Reply:

    Cultural and family life grooming would make consent very difficult to prove. It’s not disgust, it’s worry over some people abusing it

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    Chris Williams Reply:

    ICultural grooming occurs with some Asian groups for first cousins but that has not been made illegal. I is a much bigger problem than siblings would ever be.

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    Chris Williams Reply:

    Cultural grooming occurs with some Asian groups for first cousins but that has not been made illegal. I is a much bigger problem than siblings would ever be.

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  3. Graham
    Posted 18/04/2012 at 17:10 | Permalink

    Great article that makes its iconoclastic argument with coherence, reason and sensitivity. The responses so far just show how instinctively reactionary people can be when it comes to matters of taboo. I think the key point–which again the author makes with clarity–is around the brutal inappropriateness of criminal law as a tool for the state in matters of this nature. There may be a case for state intervention in this issue, but surely the blunt instrument of criminalisation is not the way.

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    Carl Reply:

    People are instinctionary about it, because it is the one thing that is most open to abuse. The people you grew up with, the people you sired, the people you are most genetically like, are the people you are most likely to abuse. And, least likely to have anything positive or constructive with. It’s not some primitive ape-part of the brain, that stops you, it’s the civilised man.

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    Dr Paul Behrens Reply:

    Hi Carl,

    should ‘civilised man’ not also be able to make finer distinctions than his forebears? Cases of abuse can be addressed by laws against abuse. But what is the rationale for a law against incest in cases in which abuse does not play a role? And it is exactly that problem that arises if siblings are separated at a young age and meet only as adults.
    I referred in my article to an increased risk of that happening due to cases of artificial insemination through anonymous sperm donation. I understand there are often rules in place to minimise the use of sperm by one individual donor – but apparently not in all cases: ctv refers to a man in Toronto who may have hundreds of siblings through the same biological father.
    http://www.ctv.ca/CTVNews/CanadaAM/20120411/sperm-donor-dad-hundreds-of-children-bertold-weisner-120411/
    If in cases of this kind, two siblings meet later in life, fall in love, and decide to have sexual relations, it seems to me that there must be a better rationale for a law that comes in and says ‘you must stop doing that’. It is difficult to base such a law entirely on the need to prevent abuse.

    PB

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    Carl Reply:

    The rationale is, that it makes it generally,more acceptable to have sexual relationships with people you are genetically and mentally similar too, even if you didn’t grow up with them. The family unit has broken down anyway. Loads of people have kids all over the place anyway, that didn’t grow up together,and we have an abuse culture, too. Though, of course, we have laws against it, that work only 20% of the time.Not good.

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    Dr Paul Behrens Reply:

    Hi Graham,

    many thanks for your comment! I do think that that the severity of criminal law is an aspect that needs to be considered. Hassemer, incidentally, makes the interesting point that criminal law itself can lead to disturbing effects, which may make therapy necessary (para 120 of his dissent).
    That also makes you wonder about the effects that societal disapproval has. Especially in cases of consensual, non-abusive incest – is it the sexual relationship itself or is it the stigma conferred by society, that results in psychological damage?

    PB

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    Carl Reply:

    Society’s disapproval of consensual, adult incest is caused by the very great suspicion that it is very likely abusive, or has the potential to be.

    Abuser as victim is not good.

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    Chris Williams Reply:

    In recent years we have seen cases of abusive incest and cases of consensual incest. There was no fine line between them, they were very different. Parental incest with a child is very different from sibling incest. I have not heard of cases of abusive sibling incest through grooming (rather than rape) although you could see that it could be possible. One thing is certain, it is never going to be normal because the incidence is so low and the taboo is naturally strong rather than culturally strong. How often is there a discussion in a family about incest? Very young children know that you do not marry your brother or sister although you love them dearly.

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  4. Posted 18/04/2012 at 16:41 | Permalink

    An interesting debate and one which is difficult to resolve.

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  5. Carl
    Posted 18/04/2012 at 12:37 | Permalink

    I don’t think it would be a good idea. I don’t think the taboos about incest are society based, they are internal. Apart from the genetics aspect, which could be got round, if there were no offpsring, there’s the power aspect. You’re taking advantage of the fact that you grew up with someone, there is a power differential, both ways. Even stranger sibling relations would be open to more abuse, because of the similarity between partners.

    If it became established, you could ‘groom’ offspring, even other people’s, over a lifetime. It would become the norm and non-abuse would be deviant. Abuse cultures are very difficult to change, because cultural ‘grooming’ occurs over a lifetime. Abuse cultures are not as open, free, liberal or tolerant,as those that are primarily non-abusive.

    The argument would be that it would diversify culture. I think it would tribalise. Imagine what it would do to gang culture, if gang members were doing it! There would be less tolerance and the legal establshment would have to do it, to, in order to empathise and communicate.

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    Dr Paul Behrens Reply:

    These are interesting points, but I am not sure if you are quite consistent here. If the taboo about incest is not society based, but ‘internal’, then I fail to see how (abusive) incest could become the ‘norm’. In fact – if there is a strong internal taboo, would there be any need for a law as well?
    But one of the main problem seems to be that it is very difficult to say with certainty what exactly the law is supposed to address. There are already laws against abuse. There are laws against non-consensual intercourse. Some States have also adopted laws against grooming.
    The law against incest, however, goes far beyond that. The worrying feature about the Stübing case is that it does cover situations in which the partners did not grow up in the same family structure. The question that arises then is, whether the sanction of criminal law should stay in place, based merely on the fact that the sexual partners were related.

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    Carl Reply:

    There’s a strong internal taboo for other crimes too. I have read that humans are inherently honest, chimps are.

    The Swedes are socially more responsible than most, but they do have government and law. They delegate responsibility for checking part of their behaviour to someone else, and are not afraid too.

    The court may eventually argue itself out of existence, as it is implying that it is immoral to check anyone’s behaviour.

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  6. Posted 18/04/2012 at 10:36 | Permalink

    Its considered crime, because law created based on the most Holly Book of Big religions in the world. When God mentioned its prohibited or a sin, its a benchmarking, way of life which we have to follow.

    Best regards,

    eddy setiohardono mba(UK)
    ————————
    Leicester Univ. Alumni.

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  7. Gemma
    Posted 18/04/2012 at 09:24 | Permalink

    So it is safe to say that a father can have sex with his daughter and a mother with her son. There is too much comparison to what society does and what is natural: nature vs nurture. The reason given because they did not grow up together is ridiculous, THEY ARE STILL BROTHER AND SISTER!! Have we forgotten where all laws come from [THE BIBLE!] . This is just looking for a reason to legalise incest, which is wrong we cannot have direct sexual relationship with our siblings!! come on people wake the hell up!!

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    Chris Williams Reply:

    The laws that come from the bible is a recommendation for rescinding them not keeping them. In most cases western societies have done just that with incest the exception to the rule. But in this case it is irrelevant because most sibling incest is undetected unless the couple have children because the state does not mandate cameras in the bedrooms of siblings who live in the same house. Had the German couple decided to live in a different city and not kept in touch with their family how would anyone have known.

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