Incest: legal in Portugal, illegal in Germany
The European Court of Human Rights (fifth section) has that Germany did not violate Article 8 of the European Convention on Human Rights (right to respect for private and family life) by convicting Patrick Stübing of incest (Stübing v Germany).
Professor Jonathan Haidt, a well-known social psychologist, presented this scenario as part of a study:
Julie and Mark, who are brother and sister, are traveling together in France. They are both on summer vacation from college. One night they are staying alone in a cabin near the beach. They decide that it would be interesting and fun if they tried making love. At very least it would be a new experience for each of them. Julie was already taking birth control pills, but Mark uses a condom too, just to be safe. They both enjoy it, but they decide not to do it again. They keep that night as a special secret between them, which makes them feel even closer to each other. So what do you think about this? Was it wrong for them to have sex?
Most people answered with a resounding yes, supporting their "yuck" response with reasons. Yet Professor Haidt noticed that many respondents ignored elements of the story. Some invoked the risk of bearing children with general abnormalities despite mention of two forms of contraception. Others referred to the risk of damaging the sibling relationship, ignoring the fact that the experience actually improved their relationship. Others pointed to the impact on others, but overlooked their pact of secrecy. When one argument was rebutted, people plucked out another. When their ammunition was exhausted, most people clung to their view that Julie and Mark committed a grave moral wrong. Haidt calls this state "moral dumbfounding". His conclusion is that intuitive moral judgments precede the explanations of the rational brain.
Now consider the recent case of Stübing v . Patrick Stübing was born in 1976 in Leipzig. Three years later, he was removed from his family, placed in a children's home and then with foster parents. At seven, he was adopted by his foster parents. In 2000, aged 23, he re-established contact with his family and discovered his 16-year-old sister, SK. In December 2000, their mother died and the relationship between Patrick and SK intensified. The following month, they had consensual sex. Over the next five years, they had four children, after which Patrick underwent a vasectomy. The youngest daughter now lives with SK, but the other children are with foster families.
The prohibits sexual intercourse between consanguine siblings. It is punishable by up to two years' imprisonment or a fine. Consensual sex between siblings is a criminal offence in the majority of states of the Council of Europe, including the UK.
In April 2002, Patrick was convicted of 16 counts of incest. He received a suspended sentence and was put on probation. He was again convicted of incest in April 2004 and November 2005, on each occasion receiving a custodial sentence. Although charged, SK did not receive a sentence. The District Court ruled that she suffered from a personality disorder and mild learning difficulties.
In January 2007, the Dresden Court of Appeal rejected Patrick's appeal. The following month, he lodged a constitutional complaint, arguing that section 173 of the German Criminal Code violated his right to sexual self-determination, discriminated against him, was disproportionate, and interfered with the relationship between parents and children born out of incestuous relationships.
On 26 February 2008, the Federal Constitutional Court – Germany's equivalent to the US supreme court – rejected Patrick's complaint by seven votes to one. The Court ruled that the ban was justified on the grounds of public health, self-determination and the protection of the family and society. Patrick started his prison sentence on 4 June 2008 and was released on probation a year later. He went to the European Court of Human Rights, alleging that his criminal conviction violated Article 8 of the convention (right to respect for his private and family life).
The applicant's case
Patrick argued that the conviction breached his Article 8 rights by affecting his ability to raise his children and interfering with his sexual life. There was no pressing social need to justify the conviction. Incestuous relationships did not spread genetic diseases in society and, moreover, other people with a higher risk of transferring genetic defects, such as older and disabled persons, were allowed to procreate. The criminal ban, plagued by inconsistencies, did not protect the family unit. Why ban sexual intercourse between siblings but permit other forms of sexual contact? Why exempt step-children or adoptive children from criminal liability?
In Patrick's case, the siblings had not grown up together. The normal sexual inhibitions had not developed. The sex was consensual. No one was harmed by the incest. In fact, the conviction destroyed a new family unit. Unlike incest between mother and son, or father and daughter, there were no overlapping family roles. A prospective child would have a clear mother and father. Finally, the protection of morals was not a sufficient reason to justify the criminal conviction.
The government's case
In response, the German government admitted that the conviction interfered with Patrick's Article 8 rights, but argued that, since the interference was necessary in a democratic society to prevent disorder and protect morals, it was a restriction justified by Article 8(2). The European Court should grant member states a broad 'margin of appreciation' – a certain latitude in the observance of convention rights – on this morally delicate issue.
The ban, argued the German government, served to protect the family structure and hence society as a whole. As incestuous relationships often involve an imbalance of power between the parties (in the instant case, Patrick was seven years older than his 16-year-old sister, who suffered from a personality disorder and learning difficulties), the ban also protects the weaker partner. The risk of genetic damage to offspring adds another justification for imposing criminal liability. Finally, the ban reflects societal convictions on the immorality of incest. As for the penalties for incest, the German courts had a range of options available, including the possibility of dispensing with prosecution altogether.
The European Court's assessment
The Court agreed that the conviction interfered with Patrick's private life. It also noted that, since the ban is aimed at the protection of morals and the rights of others, it pursued a 'legitimate aim' within the meaning of Article 8(2). The key question was whether the conviction satisfied another requirement of Article 8(2): the interference must be necessary in a democratic society.
The Court laid out a number of principles about the margin of appreciation, reviewed the laws of other member states on incest, and concluded that "the domestic authorities enjoy a wide margin of appreciation in determining how to confront incestuous relationship between consenting adults, notwithstanding the fact that this decision concerns an intimate aspect of an individual's private life." .
Reflecting on the deliberation and conclusions of the Federal Constitutional Court, the European Court held that the Federal Court's decision was reasonable. Patrick's conviction corresponded to a pressing social need. Germany's domestic courts did not stray beyond the wide margin of appreciation, and there was no breach of Article 8.
The European Court's reasoning is meagre. It avoids a careful analysis of each individual argument and counter-argument. The dissenting judgment by Judge Hassemer in the Federal Constitutional Court contained a number of thought-provoking observations – such as the law's prohibition of sexual intercourse but not other sexual acts that are also potentially damaging to family structures and society – that were side-stepped by the European Court.
Instead, the Court reaffirmed the principle that, in sensitive matters of morality where no consensus exists within member states, the margin of appreciation will be broad. Individual states are better placed than the European Court to evaluate the moral convictions of the people and the manner in which these convictions should be translated into domestic law, if at all. Germany, like the UK and many other European countries, prohibits incest between adult siblings. In other countries, such as Portugal and Serbia, incest has been decriminalised. However, such is the Court's reliance on the margin of appreciation that Lord Lester's concerns that the concept has become as "" and a "substitute for a coherent legal analysis of the issues at stake" spring to mind.
A detailed exploration of incest would raise profound questions about ethics (what exactly have Julie and Mark done wrong?), moral psychology (what is the relationship between intuition, emotion, and reason?), and the aims of law in general (is it the law's business to meddle in matters of private morality?). Taking cover behind the 'margin of appreciation' and the variability of European approaches to the issue of incest, the European Court chose not to meddle with the conclusions of the Federal Constitutional Court. This is an understandable approach, but one that will leave the philosophically minded unfulfilled and, more importantly, will provide scant comfort to Patrick Stübing.