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.
Case: Bundesverfassungsgericht, 2 BvR 392/07.
*** Ayn Traylor-Sadberry is a domestic relations, probate & criminal attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: www.TraylorSadberry.com
