Incest a 'fundamental right', German committee says

[MadImmortalMan]

Pretty sure I didn't actually make any argument...

Oh, I'm sorry. This is abuse. You want room 12A, next door.

[viper37]

I dont think impartial was the word you were looking for.  A lawyer is supposed to be completely partial to their client's interest.  The only restriction on representing a family member is that it voids the lawyer's bar insurance - a good policy choice for obvious reasons.

ah well, you're right.  He obviously must act in the client's own interest, but isn't there something about personal relationship?  I mean, broader than just having sex with your client?

[viper37]

And why should the state decide what adults* want to do in their bedroom?

In most cases it shouldn't.  But in this one it should.

where do you draw the line?  There are various sex practices that aren't exactly safe.  Lots of people shouldn't reproduce.  Lots of people hate kids yet decide to have one anyway, or are careless and make the child suffer for their mistakes.

Where do we draw the line as a society?  Gay sex is against nature, so is incest.  Fucking without the specific aim of reproduction is a big no-no in most monotheist religions (and possible some polytheists too).  Having sex outside of marriage is forbidden in most religions, do we forbid it as a society?  There are reasonable grounds to ban it: it incites jealousy and one of the spouse is likely to snap, kill the kids and the cheating partner.  I mean, if we start to find possible bad consequences of the private acts as a reason to ban something, we have a boatload of these...

[Barrister]

And why should the state decide what adults* want to do in their bedroom?

In most cases it shouldn't.  But in this one it should.

where do you draw the line?  There are various sex practices that aren't exactly safe.  Lots of people shouldn't reproduce.  Lots of people hate kids yet decide to have one anyway, or are careless and make the child suffer for their mistakes.

Where do we draw the line as a society?  Gay sex is against nature, so is incest.  Fucking without the specific aim of reproduction is a big no-no in most monotheist religions (and possible some polytheists too).  Having sex outside of marriage is forbidden in most religions, do we forbid it as a society?  There are reasonable grounds to ban it: it incites jealousy and one of the spouse is likely to snap, kill the kids and the cheating partner.  I mean, if we start to find possible bad consequences of the private acts as a reason to ban something, we have a boatload of these...

Where do you draw the line is an excellent question when it comes to criminal law.

Typically when we make something criminal we want to target something that has clear and obvious negative effects.  We want to draft a law that makes it clear what is, and is not, allowed.  And we want to make the law as minimally restrictive as possible while still tackling the problem.

When it comes to incest there are two negative problems.  First is to avoid the very obvious negative effects of inbreeding.  Second is to help to prevent child sexual abuse, since such abuse is frequently done by children's caregivers.

So, there's some pretty easy things we want to discourage - inbreeding and child sexual abuse.  But can we do so with a law that is both clear, and minimally intrusive?

Why yes - we can.  By making a clear law that you can not have sex with someone that is your parent, child, brother, sister, grandparent, or grandchild, is quite clear.  There's no ambiguity.

And is it minimally intrusive?  Why yes it is.  There's a whole big world of six billion people with whom you can have sex with.  The criminal alw is just saying that out of those six billion people, here's a list of a dozen or so whom you can't.

And that's the major distinction between gays rights and a "right to incest".  The old sodomy laws prohibited people from having sex with half of the world.  If someone was only sexually attracted to the same sex, it gave them absolutely zero legal sex partners.  But someone who, by law, can't sleep with their brother or sister still has innumerable other potential sexual partners to pursue.

[derspiess]

where do you draw the line?  There are various sex practices that aren't exactly safe.  Lots of people shouldn't reproduce.  Lots of people hate kids yet decide to have one anyway, or are careless and make the child suffer for their mistakes.

Where do we draw the line as a society?  Gay sex is against nature, so is incest.  Fucking without the specific aim of reproduction is a big no-no in most monotheist religions (and possible some polytheists too).  Having sex outside of marriage is forbidden in most religions, do we forbid it as a society?  There are reasonable grounds to ban it: it incites jealousy and one of the spouse is likely to snap, kill the kids and the cheating partner.  I mean, if we start to find possible bad consequences of the private acts as a reason to ban something, we have a boatload of these...

Dunno, man.  I'll let you know when we get there.  I don't really have the interest in discussing incest that some of you guys have.

[Syt]

So, there's some pretty easy things we want to discourage - inbreeding and child sexual abuse. 

The problem is that if you want to avoid inbreeding, you're entering eugenics territory and determining what kind of offspring is desirable, and which one isn't.

As for child sexual abuse (or coercing someone into sex by abusing a position of authority) - there's already laws against that.

[Eddie Teach]

If someone was only sexually attracted to the same sex, it gave them absolutely zero legal sex partners.  But someone who, by law, can't sleep with their brother or sister still has innumerable other potential sexual partners to pursue.

http://youtu.be/o6T6veL5zWM?t=2m34s

[Barrister]

So, there's some pretty easy things we want to discourage - inbreeding and child sexual abuse. 

The problem is that if you want to avoid inbreeding, you're entering eugenics territory and determining what kind of offspring is desirable, and which one isn't.

As for child sexual abuse (or coercing someone into sex by abusing a position of authority) - there's already laws against that.

Absolutely - there are all kinds of very tricky and morally very dubious discussions you could get involved in.  Which is why it's best to avoid those entirely unless there's a really simple solution.

I don't want a eugenics board trying to look at everyone's genetics before issuing a ciildbirth license.  But, prohibiting blood relations from having sex is a whole hell of a lot simpler than that.

And as for laws against sex by people in authority - those are very blurry lines.  I can tell you it's tough to obtain convictions - how do you tell if that person is in a position of trust?  How can you tell if that person is exploitative?  A "bright line" is a lot more desirable.

Plus, a lot of child sexual abuse is committed by siblings, not just parents - and they aren't in a position of trust.

[crazy canuck]

As for child sexual abuse (or coercing someone into sex by abusing a position of authority) - there's already laws against that.

I have no difficulty with a law that makes it crystal clear.  The problem with your approach is it contemplates that there may be some circumstances in which it would be appropriate for parent to have sex with their child. 

[Zanza]

So, there's some pretty easy things we want to discourage - inbreeding

What is the protected legal interest here?

[viper37]

And why should the state decide what adults* want to do in their bedroom?

In most cases it shouldn't.  But in this one it should.

where do you draw the line?  There are various sex practices that aren't exactly safe.  Lots of people shouldn't reproduce.  Lots of people hate kids yet decide to have one anyway, or are careless and make the child suffer for their mistakes.

Where do we draw the line as a society?  Gay sex is against nature, so is incest.  Fucking without the specific aim of reproduction is a big no-no in most monotheist religions (and possible some polytheists too).  Having sex outside of marriage is forbidden in most religions, do we forbid it as a society?  There are reasonable grounds to ban it: it incites jealousy and one of the spouse is likely to snap, kill the kids and the cheating partner.  I mean, if we start to find possible bad consequences of the private acts as a reason to ban something, we have a boatload of these...

Where do you draw the line is an excellent question when it comes to criminal law.

Typically when we make something criminal we want to target something that has clear and obvious negative effects.  We want to draft a law that makes it clear what is, and is not, allowed.  And we want to make the law as minimally restrictive as possible while still tackling the problem.

When it comes to incest there are two negative problems.  First is to avoid the very obvious negative effects of inbreeding.  Second is to help to prevent child sexual abuse, since such abuse is frequently done by children's caregivers.

So, there's some pretty easy things we want to discourage - inbreeding and child sexual abuse.  But can we do so with a law that is both clear, and minimally intrusive?

Why yes - we can.  By making a clear law that you can not have sex with someone that is your parent, child, brother, sister, grandparent, or grandchild, is quite clear.  There's no ambiguity.

And is it minimally intrusive?  Why yes it is.  There's a whole big world of six billion people with whom you can have sex with.  The criminal alw is just saying that out of those six billion people, here's a list of a dozen or so whom you can't.

And that's the major distinction between gays rights and a "right to incest".  The old sodomy laws prohibited people from having sex with half of the world.  If someone was only sexually attracted to the same sex, it gave them absolutely zero legal sex partners.  But someone who, by law, can't sleep with their brother or sister still has innumerable other potential sexual partners to pursue.

yes I see that, but in the case of minors having sex with an adult, the law already covers that, with, imho, an appropriate age as far as Canada goes.  No sex with a minor under that age of consent and no sex with a minor (under 18) when you are in a relation of authority.

I'm perfectly at ease with this part of the law.

I am much less when it comes to adult.  18 year old male with 20 year old sister or 1st degree cousin. 16 year old female with 17 year old half brother.  Yes, inbreeding is a possibility, it can create bad offsprings.  The whole Lac St-Jean area in Quebec has this problem, they were isolated for a very long time and as a result of this proximity marriages between 1st degree cousins, and even offsprings from brothers&sisters have resulted in an higher prevalence of some rare diseases.

However, not all sex is for procreation nowadays.  And you could also have non related parents who are both physically or mentally handicapped having children wich results in them passing on defective genes to the next generation.  Yet, this is not forbidden.

It's not simply a matter of "a dozen or so people", imho, it's the general principle that you decide for other adults what is good for them.  As I said, lots of sexual practices are unsafe.  Heck, I heard there are gays that get willingly infected with AIDS by sleeping with diseased partners.  This is not forbidden by law, afaik.  Yet, the society will have the burden of these individuals.

Mind you, if I had kids and I found them sleeping together, I don't think I'd react well...

[Berkut]

Another factor in deciding whether to write laws making your personal moral code into criminal offenses is an evaluation of the severity of the problem that needs to be solved.

Barrister says we have to ban incest to handle the problem of inbreeding - so, how many children with birth defects are going to be born if we don't make incest illegal? In return for Barrister getting to decide who you are allowed to have sex with, what is the great benefit we are saving society from? Are we talking about 500 additional birth defects per year? A thousand? Six?

Needless to say, I find the "ZOMG THERE WILL BE DEFORMED KIDS!" argument totally unconvincing. Incest has plenty of social taboos (most of which are there for good reason) and the idea that there would be some significant, or even measurable, increase in the rate of birth defects absent the quaint laws banning incest is completely unsupported by any evidence of any kind at all.

[Berkut]

And all this misses the basic point, of course - it is the point most people who don't care about actual liberty gloss right over.

The idea that an adult cannot be allowed to make bad decisions for themselves in certain specific, narrow contexts, is what is so abhorrent about things like this, or support for mandating that people stay married even if they don't want to, or state demands that people not be allowed to marry outside their race, or that people not be allowed to have sex with their own gender, or whatever. It is all part and parcel of the same basic conceit that *some* people know what is best for *all* people, and have the right to force others to live their lives in the manner that the moral majority insists is best for them. It is the antithesis of freedom and liberty - tyranny with the very best of intentions. It is after all, what is best for them.

[Barrister]

Another factor in deciding whether to write laws making your personal moral code into criminal offenses is an evaluation of the severity of the problem that needs to be solved.

Barrister says we have to ban incest to handle the problem of inbreeding - so, how many children with birth defects are going to be born if we don't make incest illegal? In return for Barrister getting to decide who you are allowed to have sex with, what is the great benefit we are saving society from? Are we talking about 500 additional birth defects per year? A thousand? Six?

Needless to say, I find the "ZOMG THERE WILL BE DEFORMED KIDS!" argument totally unconvincing. Incest has plenty of social taboos (most of which are there for good reason) and the idea that there would be some significant, or even measurable, increase in the rate of birth defects absent the quaint laws banning incest is completely unsupported by any evidence of any kind at all.

I really don't follow you - you acknowledge there are good reasons for the social taboos.  Almost the entirety of our criminal law is just a codification of our social taboos.  So what's the problem with making incest illegal?

[Zanza]

I just read the German Constitutional Court decision on this case. Their argument is a bit more elaborate than Barrister's, but the general idea is similar. The protected legal value they see is the "family" which has a constitutional protection in Germany and they argue that incest destroys families and familial ties. The ban on incest is a small limitation on personal freedom, so they consider it acceptable to protect families.

Here is the official press release, the decision itself is only available in German.

The provision in § 173.2 sentence 2 of the German Criminal Code
(Strafgesetzbuch, hereinafter: StGB), which threatens sexual
intercourse between natural siblings with imprisonment of not more than
two years or a fine, is compatible with the Basic Law. This was decided
by the Second Senate of the Federal Constitutional Court. The
legislature did not overstep its discretion in decision-making when it
deemed protection of the family order from the damaging effects of
incest, protection of the "inferior/weaker" partner in an incestuous
relationship, as well as the avoidance of serious genetic diseases in
children of incestuous relationships, sufficient to punish incest,
which is taboo in society, through criminal law.

This made the constitutional complaint unsuccessful, which had been
lodged by a complainant who had been sentenced to several terms of
imprisonment for sexual intercourse with relatives pursuant to § 173.2
sentence 2 StGB.

Judge Hassemer attached a dissenting opinion to the decision. In his
view, the provision is incompatible with the principle of
proportionality.

In essence, the decision is based on the following considerations:

The decision of the legislature to impose criminal penalties on sibling
incest, in accordance with the standard under Article 2.1 in
conjunction with Article 1.1 of the Basic Law (Grundgesetz - GG; right
to sexual self-determination) which are to be addressed in the first
instance, are constitutionally unobjectionable.

1. With the criminal provision of § 173.2 sentence 2 StGB, the
   legislature restricts the right to sexual self-determination of
   natural siblings by making the completion of sexual intercourse
   between them a punishable offence. In this way the conduct of one's
   private life is limited, particularly in that certain forms of
   expressions of sexuality between persons close to one another is
   penalised. However, this is not an encroachment upon the core area of
   private life which is impermissible to the legislature from the
   outset. Sexual intercourse between siblings does not affect them
   exclusively, but rather, can have effects on the family and society
   and consequences for children resulting from the relationship.
   Because the criminal-law prohibition on incest only affects a
   narrowly defined behaviour and only selectively curtails
   possibilities for intimate communication, the parties concerned also
   are not placed in a hopeless position incompatible with respect for
   human dignity.

2. The legislature pursues objectives through the challenged provision
   that are not constitutionally objectionable and, in any event, in
   their totality legitimise the limitation on the right to sexual
   self-determination.

   a) The essential ground considered by the legislature as the reason
      for punishment in § 173 StGB is the protection of marriage and the
      family. Empirical studies show that the legislature is not acting
      outside of its latitude for assessment when it assumes that
      incestuous relationships between siblings can lead to serious
      consequences damaging the family and society. Incestuous
      relationships result in overlapping familial relationships and
      social roles and, thus, can lead to interference in the system
      that provides structure in a family. This does not correspond with
      the image of family that is the basis of Article 6.1 GG. It seems
      conclusive and is not far-fetched that the children of an
      incestuous relationship have significant difficulties in finding
      their place in the family structure and in building a trusting
      relationship to their closest caregivers. The function of the
      family, which is of primary importance for the human community and
      which is at the basis of Article 6.1 GG, would be decisively
      damaged if the required structures were shaken by incestuous
      relationships.

   b) To the extent the criminal provision is justified by reference to
      the protection of sexual self-determination, this objective is
      also relevant between siblings. The objection that the protection
      of sexual self-determination is comprehensively and sufficiently
      protected by §§ 174 et seq. StGB (crimes against sexual
      self-determination) and, therefore, does not justify § 173.2
      sentence 2 StGB ignores the fact that § 173 StGB addresses
      specific dependencies arising from the closeness in the family or
      rooted in family relations as well as difficulties of
      classification of, and defence against, encroachments.

   c) The legislature additionally based its decision on eugenic grounds
      and assumed that the risk of significant damage to children who
      are the product of an incestuous relationship cannot be excluded
      due to the increased possibility of an accumulation of recessive
      hereditary dispositions. In both medical and anthropological
      literature, which are supported by empirical studies, reference is
      made to the particular risk of the occurrence of genetic defects.

   d) The challenged criminal provision is justified by the sum of the
      comprehensible penal objectives against the background of a
      societal conviction effective to date based upon cultural history
      regarding the fact that incest should carry criminal penalties,
      which is also evident in international comparison. As an
      instrument for protecting sexual self-determination, the public
      health, and especially the family, the criminal provision fulfils
      an appellative, law-stabilising function and, thus, a general
      preventive function, which illustrates the values set by the
      legislature and, therefore, contributes to their maintenance.

3. The challenged provision is also sufficient in regard to the
   constitutional-law requirements of suitability, necessity, and
   proportionality as to a rule that places limitations on freedom.

   a) The criminalisation of sibling incest cannot be denied suitability
      for promoting the desired success. The objection that the
      challenged criminal provision fails its intended objectives
      because of fragmentary design and because of the grounds for
      exemption from penalty in § 173.3 StGB (no punishment for minors)
      fails to appreciate that through the prohibition on acts of sexual
      intercourse a central aspect of sexual relations between siblings
      is penalised which has great significance regarding the
      incompatibility of sibling incest with the traditional picture of
      the family, and which finds a further objective justification in
      the ability, in principle, to cause further damaging consequences
      by producing descendants. That acts similar to sexual intercourse
      and sexual intercourse between same-sex siblings are not
      threatened with criminal penalties, but on the other hand, sexual
      intercourse between natural siblings also fulfils the elements of
      the crime even in cases where pregnancy is excluded does not place
      doubt on the basic achievability of the objectives of protecting
      sexual self- determination and preventing genetic disease. The
      same applies to the objection that the criminal provision is
      unsuitable for protecting the structure of the family because
      based on the grounds for exemption from punishment as to minors
      (§ 173.3 StGB) the criminal provision first reaches siblings when
      they typically are leaving the family circle.

   b) The challenged provision also is not subject to constitutional-law
      doubts in regard to necessity. It is true that in cases of sibling
      incest guardianship and youth welfare measures come into
      consideration. However, in comparison to criminal penalties they
      are not less serious measures with the same effectiveness. Rather,
      they are aimed at preventing and redressing violations of
      provisions and their consequences in specific cases; as a rule
      they do not have any general preventive or law-stabilising effect.

   c) Lastly, the threatened punishment is not disproportionate. The
      range of punishment provided for also allows consideration for
      suspension of proceedings in accordance with discretionary
      prosecution aspects, for refraining from punishment, or for
      special sentencing considerations, in certain case constellations
      in which the accuseds' guilt is slight so that punishment seems
      unreasonable.

The dissenting opinion of Judge Hassemer is in essence based on the
following considerations:

§ 173.2 sentence 2 StGB is incompatible with the principle of
proportionality.

The provision is not aimed at establishing a rule that would be
internally consistent and compatible with the elements of the crime.
From the outset consideration of eugenic aspects is not an objective of
a criminal-law provision that is supportable under constitutional law.
Likewise, neither the wording of the provision nor the statutory system
indicate that the protective purpose of the provision or even just one
such protective purpose could be protection of the right to sexual
self-determination. Lastly, the prohibition on sibling incest also is
not constitutionally in regard to protection of marriage and the
family. Only sexual intercourse between natural siblings is a
punishable offence, not, however, all other sexual acts. Sexual
relationships between same-sex siblings and between non-blood-related
siblings are not encompassed. If the criminal provision were actually
aimed at protecting the family from sexual acts, it would also extend
to these acts that are likewise damaging to the family. The evidence
seems to indicate that the provision in its existing version is solely
aimed at attitudes to morality and not at a specific legally protected
right. Building up or maintaining societal consensus regarding values,
however, cannot be the direct objective of a criminal provision.

In addition, the provision does not offer a suitable path to the
objectives pursued through § 173.2 sentence 2 StGB. The elements of the
crime, limiting punishability to acts of sexual intercourse between
siblings of different gender, is not in a position to guarantee
protection of the family from damaging effects of sexual acts. It does
not go far enough because it does not encompass similarly damaging
behaviour and, moreover, non-blood-related siblings as possible
perpetrators. It goes too far because it encompasses behaviour that -
based on the children having reached the age of majority and the
attendant process of leaving the family - it cannot (any longer) have
damaging effects on the family unit.

In addition, there are constitutional-law doubts about criminal
liability for sibling incest based on the principle of proportionality
in regard to the availability of other official measures that could
similarly or even better guarantee the protection of the family, such
as youth welfare measures and family court and guardianship measures.

Finally, the criminal provision of § 173.2 sentence 2 StGB conflicts
with the constitutional-law prohibition on excessiveness. There is a
lack of statutory limitation on criminal liability as to a behaviour
that does not endanger any of the possible objects of protection.