Federal Constitutional Court - Press office -
Press release no. 29/2008 of 13 March 2008
Order of of 26 February 2008 - 2 BvR 392/07 -
Criminal liability of sibling incest is
constitutional
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.
This press release is also available in the original german version.
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