Assault on the Family, German Edition

Fridays around these parts used to be a time of firestorms. I don’t know what happened to that, but today I caught wind of what appears to be a development in Germany worthy of closer attention. The Telegraph reports:

“Criminal law is not the appropriate means to preserve a social taboo,” the German Ethics Council said in a statement. “The fundamental right of adult siblings to sexual self-determination is to be weighed more heavily than the abstract idea of protection of the family.”

Incest as a fundamental right?! Only in Germany! (Let’s hope!)

Well, not likely even there, as it turns out. As an independent body of 26 experts from the fields of science, medicine, theology, philosophy, ethics, sociology, economics and law, the German Ethics Council doesn’t establish policy but simply facilitates public discussion of what it considers important moral and legal issues and makes non-binding recommendations to policy makers. In this case, the Council simply recommends revising Section 173 of the German Penal Code (StGB) to decriminalize consensual sexual intercourse between of-age siblings.

But Angela Merkel’s Christian Democratic Union parliamentary group was quick to shoot the recommendation down:

The abolition of Section 173 StGB, which classifies the intercourse between relatives as a criminal offense, or the abolition of the offense of incest between siblings would send the wrong signal. The elimination of the threat of punishment against incestuous acts within families runs contrary to the protection of the undisturbed development of children in their families. […] It is first and foremost about protecting growing children and adolescents who are unable to challenge with the necessary self-confidence possible attacks from family members in a stronger position within the family structure. Incest almost always goes hand in hand with a partner’s dependence and extremely difficult family situations.

The Ethics Council has released this 90-page statement outlining its rationale, where it notes on page 72 that “It is true and indisputable that the primary purpose of Section 173 StGB is the protection of the institution of the family.” Further:

The criminal prohibition of consensual sexual relationships amounts to a radical interference with sexual self-determination. Such sexual relationships are at the core of ​​private life. In this innermost sphere of the person, the state should intervene with criminal sanctions only with regard to actions that threaten or harm the privacy rights of third parties.

[…]

Beyond this protection guaranteed by individual fundamental rights, the family institution as protected by Art. 6 of the Basic Law [the German constitution, which states: “Marriage and the family shall enjoy the special protection of the state.”] constitutes a space for the constitutional guarantee for the specific roles that are typically taken by members of a family. This obviously refers to real life situations. What is not included, however, are the underlying norms of family law that give these matters their legal form.

So what say ye? Do such recommendations undermine the family, What about the right of adults to self-determination? Is this even relevant to the status of families in the rest of the world, or is this a discussion only Germans could have?

Comments

  1. I don’t agree with the council; but the logic about sexual autonomy certainly seems consistent with the reasoning we’ve seen to date on the gay marriage front–at least where consenting adults are concerned.

    I suppose, under US Constitutional Law, you could argue that there is no “class” of people attracted to siblings that is worthy of equal protection under the 14th Amendment (that might forestall a movement for sibling marriage, at least for a few more decades); but you’ve still got that pesky penumbra of privacy to deal with.

  2. In the History of Marriage book I was just reading it talked a lot about European views of incest and just how expansive they got over the last 2000 years. You could nullify a marriage based on 8 degrees of separation. In the US, you can’t even get separated from Kevin Bacon that easily!

    That was then, this is now, but those expansive incest laws weren’t about preventing offspring with talking vestigial twins sticking out of their necks. It was because marriages were arranged, sometimes forced. This gave people a way to get out of the marriage if it failed to produce desirable offspring (the whole reason the marriage was done in the first place in many cases). As with Henry VIII when Katharine of Aragon failed to produce a male heir, they could state “God must disapprove, so there must be too close a connection in our family lines.” So that’s a different history of incest taboo than we have now, and Germany was part of that tradition.

    Having said that, Germany is one weird place. Is consensual adult incest criminal? What if they use birth control and no offspring are produced? I tend to think it’s not healthy from a mental health standpoint, but this is a valid question raised by Jonathan Haidt in his studies, too. Likewise, is it criminal for a person to sell himself to be eaten by another person? These things are unsavory and seem demeaning to human beings, but so thought the Victorians about sex in general. So think many Americans about blood sausage.

  3. “What if they use birth control and no offspring are produced?”

    That’s basically the Council’s response to the “gene argument” against incest. Under German law “Beischlaf” (literally “sleeping with”) is what is forbidden between siblings, and that includes with birth control but not, how should I say, more adventurous forms of intercourse. (cf. pp. 72-73 of the linked report)

  4. If we get too wrapped up in the procreative aspect of sex, we come out with the curious result that homosexual incest should be permitted (since it can’t create children) while heterosexual incest should be prohibited (since it can). So basically, you’re discriminating on the basis of sexual orientation–only here, the discrimination is against straights rather than gays.

    Moreover, as I understand it–unless a family is already predisposed towards a few specific issues, one set of kids produced by an incestuous relationship doesn’t hurt the gene pool all that much–the real problems come when you develop a pattern of incest over several generations, like the FLDS or various European royal families.

  5. I think the CDU group brings up the critical issue, though. Would decriminalizing incest make people more susceptible to sexual predators in their own family? Given how much influence family members have on each other, it would be very difficult to judge if two siblings had legitimately “fallen in love” of their own volition or if one had groomed the other over years of abuse. I don’t know how much scientific research has been done, but my gut feeling is the second situation would be much more common than the first one. One of the core purposes in preserving stable families is so that children can be raised in stable environment where they have the best chance of healthy development mentally and physically. Opening up incest as an legal form of sexual expression would, IMO, endanger more people than it would help.

  6. In a pluralistic, I’m-okay-you’re-okay society in which the definition of family is nebulous and the only metric of morality is whether or not something is causing someone pain, I think the only argument against legal incest is the potential for abuse by one of greater power over one of lesser power — the exact argument Merkel’s Christian Democratic Union parliamentary group made. It’s the same argument used to prohibit sex between officers and enlisted people/employees and the same argument used to prohibit prostitution. If reasonable safeguards are in place to prevent such abuse, there’s no longer any argument to be made (and so Germany has prostitution).

    Of course such recommendations undermine the family. Most of the power of family comes from its universally recognized definition and expectations. Stretch the boundaries enough so there is no universal, or societally recognized) definition/expectations, and the power is lost. For example, if society recognizes marriage as a merging of assets, then marriage has more power than if society feels each spouse maintains individual ownership of the assets they had before marriage. Again, society recognizes that minors should have guardians, but the authority of those guardians is limited by the prevailing societal view of what that authority should be.

    Every discomfort, distress, or pain facilitated by the power of the traditional family can be ameliorated by its dissolution, and I think that’s the solution dictated by those who subscribe to the no-pain morality. There’s no abuse if no one has power to abuse, so distribute the power so it’s less harmful.

  7. I understand the same as JimD – genetic complications from incest are relatively low, with the caveat that we now have the ability to screen for most genetic defect possibilities before conception. In the US, it’s a recommendation if there’s even a hint of abnormalities in your genetic line. We don’t test couples beforehand to be sure they both don’t carry a gene for spinabifida – we just assume they’ll take their own precautions. Much of the issue is in closed societies where recessive genes can collect and become more prominent. Iceland is a big example of this, to the point that they now have an app to check to see if you’re too closely related to the person you want to date, just in case.

    That just leaves us with two things, the “ick” factor and the issue of one forcing the other into a relationship that is not wanted. Are these issues, being applied only to consenting adults, the same as the fears that gays would “groom” new lovers? That seems pretty absurd now (to most), but would even gay supporters think it’s not so far fetched when it involves incest?

    I’m reminded of the Biblical laws against incest. What in the world was happening that required so many specific relationships to be detailed? Even if we’re pretty liberal about post-Eden coupling, there had to be a fair amount of what we’d consider incest now. Did the Nephites have some problems when some decided that the Law of Moses was no longer in effect?

    Interesting times. Interesting times.

  8. The age of consent in Germany is troublesome in this context–14 years old if the other individual is under 21, and 16 years old if the other individual is 21 or older. So what you’re looking at is sibling incest being legal at the age of 14 (assuming there’s not a large age gap between siblings) and parent/child incest being legal at the age of 16. Definitely problematic, as it’s not just an issue between consenting adults.

  9. Part of the problem is that society at large is drifting towards viewing sex as — well — just sex, something to satisfy personal appetite. Like eating a hamburger. If it feels good you ought to be able to do it. We view sexual relations as a “way of expressing love and strengthening emotional and spiritual bonds between husband and wife.” (Handbook 2, 21.4.4) But the rest of the world doesn’t.

  10. The UK had similar recommendations made by a similar kind of council in the mid 1980s. And England has had 300 years of debate about the differences and boundaries between the intimacy shared by siblings and the intimacy shared by romantic/sexual partners. Germany is just doing the same thing. I don’t read it as trying to dismantle the family or a call for sibling incest, so much as trying to grapple with what constitutes a family or marriage if you strip it of its millennia-old inequalities.