A majority in the Ethics Council recommends a revision to Section 173 of the German Criminal Code regarding consensual incest between siblings

According to all available data, sibling incest appears to be very rare in Western societies. Nevertheless, those affected describe how difficult their situation is in view of the threat of punishment. They feel infringed upon in their basic rights to freedom and forced into secrecy or denial regarding their love. The cases that have come to the attention of the Ethics Council are exclusively ones in which half-siblings have not grown up together and have only become acquainted with each other in adulthood.

The majority of the German Ethics Council is of the opinion that criminal law is not the appropriate means by which to maintain a social taboo. The task of the law is not to enforce moral standards or limits for sexual intercourse among citizens who are of legal age, but rather to protect the individual from injuries and gross inconveniences and the social order of the community from disturbances.

The provisions in Sections 174 ff. of the Criminal Code ("Offences against sexual self-determination") serve this protection. In particular the sexual abuse of children and youths; the exploitation of relations of dependency; situations of constraint or where sexual self-determination is lacking; as well as sexual coercion and rape are listed here as punishable. As a matter of course, these provisions also apply to sexual activities between blood relatives.

In the case of consensual incest between siblings of legal age, neither the fear of negative consequences for the family nor the possibility of the birth of children from such incestuous relations can justify a criminally punishable proscription of these relations. The basic right to sexual self-determination of adult siblings weighs more strongly in these cases than the abstract protected good (Schutzgut) of the family.

This is also the case for consensual incest when one of the partners is still under 18 years of age and a family unit with bonds lived in practice no longer exists and therefore could not be damaged. Criminal law may not be applied for the protection of abstractions such as a strictly legal construction of the family. By comparison, cases in which lived familial bonds do exist and where one of the partners is not yet 18 years of age are to be judged differently. Here the protected good of the family prevails. For such cases, criminal liability, besides sexual intercourse, should logically also be extended to other sexual actions of considerable weight.

The recommendation of the majority of the German Ethics Council does not, however, broach the question of to what extent criminal liability for incest between parents and children of legal age might be abrogated.

In a dissenting vote, nine members of the Council explain that they oppose any repeal of Section 173 of the Criminal Code or a change that would qualify criminal liability. In such actions they see a vexing signal given for legal policy, from which could emerge a relativization and weakening of the penal norm's constitutionally legitimate and ethically significant protected good. In this view, the central concern of the provision is precisely the protection of the integrity and incommensurability of different familial roles as an important precondition to successful personality development. In its considerations, the legislature should include this point of view as a central argument to be deliberated. Additionally, these members suggest that it might not be a remote presumption that further, more far-reaching claims for the decriminalization of incestuous relations may come.

The dissenting vote also acknowledges that under the purview of Section 173 of the Criminal Code, some couples run afoul of a tragic life-situation. For these persons, some reckoning could be made, even without a statutory intervention into the process of the application of the law, for instance by closing an investigation by a public prosecutor.

The Opinion can be accessed online here (in German). An English version will be available in due course.