The European Court of Human Rights in Strasbourg, France ruled on Thursday to throw out a case brought by a 35-year-old Leipzig man convicted to three years in prison for engaging in an incestuous relationship with his sister.
The court said rulings by the German courts had not represented a violation of the "right to respect for private and family life," as petitioner Patrick S. had claimed. The court stated that the "German authorities had a wide margin of appreciation in confronting the issue, since there was no consensus between the Council of Europe," the human rights institution that operates the court, and "member states as to whether consensual sexual acts between adult siblings constituted a crime." Although the decision is not legally binding, it does allow a ruling to stand by Germany's highest court, the Federal Constitutional Court, upholding the conviction of Patrick S. in 2008.
Patrick S. was separated from his family at the age of three and placed in a foster family after he had been sexually abused by his biological father. He first re-established contact with his biological family at the age of 24. He then grew close to his sister, who is eight years younger and has been described as "mentally slow," and began having sexual relations with her after the death of their mother. The two produced four offspring, including two handicapped children, between 2001 and 2005. The tragic case made headlines in Germany as it worked its way through the high court in 2008.
According to Paragraph 173 of the German Criminal Code, sexual relations between siblings are punishable by up to two years in prison. In its 2008 ruling on Patrick S.'s appeal, the high court stated that legislators had not overreached their jurisdiction with laws that "protect the family order by punishing the damaging effects of incest." The defendant had been prosecuted several times on the charges.
Following Thursday's decision, one German politician made national headlines by calling for the ban on incest between adult siblings to be lifted. Speaking to the tabloid Bild, Hans-Christian Ströbele, a member of the Green Party in the Bundestag, the federal parliament, said: "Two grown up people should be able to decided for themselves whether they want to have sex with each other -- assuming, of course, that they love each other and it happens voluntarily and there is no form of dependency in the relationship." For the most part, mainstream politicians have remained silent on the issue.
Coverage of the incest case dominates the editorial pages of Germany's left-leaning newspapers on Friday, although it is oddly absent from more conservative publications, with the exception of the tabloid Bild. Many papers come across sympathetically towards the couple, with one arguing that incestuous siblings should be provided with therapy rather than prison sentences.
The center-left Süddeutsche Zeitung writes:
"The unspoken central reason for the societal taboo and the penal ban on incest is the possibility of hereditary defects -- a factor that Strasbourg only hinted at. But the intention behind the eugenic argument is one that is indefensible, and not just in Germany with its terrible Nazi past: The increased risk of hereditary defects does not justify a legal ban. Otherwise you would have to legally ban other risk groups, like women over 40 or people with genetic diseases, from having children. Does anyone truly want to prevent predictable disabilities using penal measures and thus deny disabled children the right to life in 2012? That's absurd. And yet such fears of genetic damage are precisely what shape the punishibility of sexual intercourse between siblings."
"The European Court of Human Rights could have helped out a person whose difficult life was further disturbed by the German courts through brutal prison sentences, and whose relationship with his sister and their children was destroyed by the state penal apparatus. The Strasbourg court could have denounced the prison sentence as a violation of the Human Rights Convention. In concrete terms it could have said it violated the right to have their privacy and sexual life respected. A ruling like that, coupled with damages for the plaintiff, wouldn't have hurt Germany very much, and it would have been very good for the convicted. Now it is up to politicians to also free the last taboo from prosecution -- as happened earlier with homosexuality, adultery and prostitution."
The mass-circulation tabloid Bild writes:
"Green politician Ströbele has touched on one of the last major taboos in our free society. He wants to permit sex between siblings and other close relatives! His perfidious reasoning is that if two grown-up people want to voluntarily have sex, then no one should be allowed to prohibit them from doing so. But when an 18-year-old girl sleeps with her older brother or her father, is something like that really happening voluntarily? Or is it the product of emotional pressure? And isn't 'voluntary' precisely the repulsive argument with which perpetrators try to talk their way out of their crimes?"
"Incest is a moral crime because it is almost always accompanied by abuse and dependency. That's why it is good that the justices at the court have now decided that it is and will remain prohibited."
The Leipziger Volkszeitung, the local paper in the city where the incestuous couple lived, writes:
"In principle, the Strasbourg justices have held back and haven't decided on anything. They simply delivered a stock-taking of the existing legal opinions in all the European countries and issued a blank check to Germany. It has also created a dramatic chapter in the tragic case of the Leipzig siblings. No one is advocating incest and there is no reason to fear that if a correction were made to the penal measures on intercourse between relatives that it would lead to a mass phenomenon or somehow lead classic family structures to collapse. They would remain tragic individual cases among people with confused emotions. In the same way that homosexuality and adultery are no longer punishable by law, one should consider limits to the application of the law against incest."
The leftist Die Tageszeitung offers two editorials, one advocating a decriminalization of incest:
"As has already happened in many other European countries, incest can and should be decriminalized in Germany because there is no convincing reasoning for such a penal law. That a partner is inferior can happen in all types of relationships -- not just incestuous ones. Penal provisions are already on the books for abuse and violent relationships."
In a second editorial, the paper argues in favor of the status quo:
"The ban on incest is no arbitrary law or anachronistic rule that is irreconcilable with self-determination in sexuality and an enlightened society. To the contrary: It is, as the anthropologist Claude Lévi-Strauss said, a prerequisite for sociality -- and a prerequisite for enlightenment and the rights of the individual."
"The incest ban enables the distinction between family and society: between the one and the other. The family serves as a shelter in which the sexual is banished (that's also why abuse within the family seems especially scandalous -- and it's not without purpose that sexual relations between children are forbidden)."
"But there's also an imperative in the ban: Anyone who seeks a partner must go out into the world, even if it is to the next village. That means communication, mobility, advancement."
The leftist Berliner Zeitung writes:
"Siblings tied by incest don't belong in criminal courts -- they belong in therapy. A study presented by Germany's Max Planck Institute a few years back established that incest between siblings almost always occurs in socially weak and troubled families -- the warning inherent in the ban doesn't reach them. But instead of punishing incest among adult siblings, the youth welfare services should focus on providing care and advice to incestuous children and their parents -- if necessary with guidance from family courts."
"Criminal law is not the solution here -- it only serves to create greater damage. The case of sibling incest that has been addressed in recent years by German courts and also now the Strasbourg court is dramatic proof of that. The 36-year-old convicted man and his sister both came from a completely devastated family. They first became acquainted after the death of their mother and raised four children together. As a consequence, the man spent three years in prison -- and his relationship with his sister has been badly damaged by the conviction. Criminal law destroyed precisely what is it apparently designed to protect: a family."