Relying in part on study of similar laws in twenty other
nations including United States, Germany’s highest court upholds German law
criminalizing incest, inter alia, to prevent genetic harm to innocent offspring
A couple had adopted Patrick S. (Defendant) when he was four
years old. After spending many years in foster care, he first met his sister K.
in 2000 when she was 16 years old and he was 24. K has now borne four children
sired by Appellant. The lower court convicted and sentenced him for the crime
of incest. It also found that the Appellant had physically attacked K at least
once and that K suffers from a mild form of mental illness. Appellant duly
filed an appeal.
On February 26, 2008, the Federal Constitutional Court
(Bundesverfassungsgericht or BVG), Germany’s highest Court, rejected Defendant’s
constitutional challenges to Section 173, & 2, s. 2, of the Criminal Code
(StGB), which prohibits sexual relations between siblings.
The BVG gave considerable weight to a court‑ordered study
prepared by the Max Planck Institute for Foreign and International Criminal
Law. The Study surveyed the incest laws of 20 countries, and concluded that
sexual intercourse between siblings is a criminal offense in 13 of the 20
countries surveyed. The Study notes that the statutes of some U.S. states go so
far as to authorize life sentences for this offense.
On the other hand, incest as such is not a crime in China,
the Russian Federation, Turkey, Spain, France, The Netherlands and Ivory Coast.
There are, however, other legal sanctions in the laws of these seven countries
hostile to the mating of siblings such as a bar against marriage between
siblings and the non‑recognition of children from incestuous relationships.
In particular, the Court upholds the constitutionality of
Section 173 on three bases. First, the statute does not seriously restrain an
individual’s right to sexual self‑determination. The law is limited to barring
sexual intercourse between siblings.
Secondly, Section 173 seeks to foster lawful marriages and
normal familial relationships. Scientific studies report that incestuous
relationships seriously damage families and social relations. For example, they
bring about overlapping family relationships and disruption to traditional
family roles. Moreover, eugenic considerations support the ban because recessive
genes carry an increased risk of harm to incestuous offspring.
Finally, the built‑in flexibility of Section 173 meets the
constitutional test of proportionality. In cases of sibling incest where jail
time seems inappropriate, for instance, the courts have the discretion to
dismiss the charges, or to modify the sentence for special considerations or to
impose no criminal punishment at all.
Citation: Bundesverfassungsgericht, Beschluss vom 26.
Februar 2008, 2 BvR 392/07.
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
