Ayn Traylor-Sadberry, Germany’s highest court upholds German law criminalizing incest, inter alia, to prevent genetic harm to innocent offspring

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.

*** 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

Ayn Traylor-Sadberry, Ninth Circuit rules that American mother did not "wrongfully" retain child of Israeli father in U.S.

In case of first impression, Ninth Circuit rules that American mother did not "wrongfully" retain child of Israeli father in U.S. and holds that Child Abduction Convention requires choice-of-law analysis in determining "rights of custody" in state of child's habitual residence

Yarden is the young son of Haim Shalit, a dual citizen of the U.S. and Israel, and Cheryl Coppe, a U.S. citizen. The couple had divorced in Alaska in 1989, and the Alaska court had granted the mother custody of the son with visitation rights for the father. In 1995, Yarden had moved temporarily to Israel based on an oral agreement between the parents. Three years later, while Yarden was on vacation back in Alaska, Coppe decided to keep him there. 

Shalit then filed a petition in the Alaskan federal court. Claiming that Coppe had wrong­fully kept Yarden in the U.S., he asked that the court order Yarden's return to Israel so that the Israeli courts could decide the merits of the custody dispute. The court granted Coppe's motion for summary judgment and the U.S. Court of Appeals for the Ninth Circuit affirms.

A key question here is whether Coppe's act of keeping the child in Alaska was "wrongful" under the Hague Convention on the Civil Aspects of International Child Abduction [October 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89] and its implementing U.S. legislation, the International Child Abduction Remedies Act (ICARA) [42 U.S.C. Sections 11601-11610]. Both the U.S. and Israel are parties to the Convention. 

Under Convention Article 3, the removal or retention of a child is wrongful if "a. it is a breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention; and b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." Article 19 of the Convention and 42 U.S.C. Section 11601(b)(4) provides: "a United States district court only has authority to determine the merits of an abduction claim, not the merits of the underlying custody claim." Thus, the court may only determine whether the removal or retention of the child was "wrongful" under the law of the child's "habitual residence." If so, it will order the child sent back to the place of "habitual residence."  There the court can decide the merits of the custody dispute under applicable family law.

In the Ninth Circuit's view, the lower court rightly found that Israel was Yarden's habitual residence at the time of the challenged retention. Thus, the Court has to decide whether Coppe's action had transgressed Shalit's custodial rights under Israeli law.

Since nothing in the Hague Convention limits this "law" to the internal law of the State of the child's habitual residence. it includes the choice-of-law rules of the resident state [this approach is often called "renvoi"]. Israel's choice-of-law rules might lead to applying either U.S. or Israeli domestic law as controlling authority. Shalit, however, failed to prove the content of Israel's choice-of-law rules.

Shalit also did not establish that Coppe's retention of Yarden breached his "rights of custody" under the Hague Convention.

Article three of the Convention lists three sour­ces of custody rights: (1) operation of law, (2) judicial or administrative decisions, and (3) agreements effective under the law of that State.

As for the "operation-of-law" test, Shalit merely offered a self-serving statement from his Israeli attorney that omitted to address the choice-of-law issues. Determining Shalit's custody rights under this test, however, would have required evidence of whether Israel would apply its own or U.S. law under these circumstances.

The "judicial or administrative decisions" test also does not help Shalit, in the Ninth Circuit's view. There is only the ruling of the Alaskan court and it had granted sole custody to Coppe. Since the orders came down when both parties were living in Alaska, neither side had any jurisdictional or procedural advantages.

Finally, as for "agreements having legal effect," the oral agreement to have Yarden live with Shalit temporarily did not give Shalit "custody" rights. Even assuming that Israel's "law" would point to its own internal law under a choice-of-law analysis, the Ninth Circuit concludes that a bare assertion of Shalit's attorney that Israeli law allows parents to make agreements about custody matters is not enough to show who has custody rights. For one thing, it overlooks Article 24 of the Israeli Legal Capacity and Guardianship Act of 1962. It makes such parental agreements "subject to court approval." 

Citation: Shalit v. Coppe, 182 F.3d 1124 (9th Cir. July 23, 1999).

 

*** 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

Ayn Traylor-Sadberry, Court holds that abducting parent can be convicted under federal International Parental Kidnapping Crime Act (IPKCA)

As matter of first impression in First Circuit, Court holds that abducting parent can be convicted under federal International Parental Kidnapping Crime Act (IPKCA) for conduct that is not considered criminal under state family law

Fazal Raheman, then living in the U.S., and Saihba Ali married in India in May 1990. They moved to Massachusetts where their daughter was born in 1992. Four years later, a son arrived. The marriage was not going well, though. In 1997, Ali and the children moved into a separate apartment. 

Raheman secretly installed a video camera in Ali’s bedroom, had a private investigator follow her around, asked his nephew to move into Ali’s apartment building to spy on her, and tapped Ali’s telephone. In November 1997, he traveled to his former home in Nagpur, India, enrolled his daughter in school there and filed a custody petition in the Nagpur Family Court.

Later he went back to the U.S. Under the pretext of taking the children to a museum, Raheman took them back to India. Ali contacted the police and obtained an emergency custody order in a Massachusetts court. Raheman obtained his own custody order from the Nagpur Family Court.

In July 2001, a federal grand jury indicted Raheman under the International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. Section 1204. It provides in part that “(a) Whoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with the intent to obstruct the lawful exercise of parental rights shall be fined under this title or imprisoned not more than 3 years, or both.”

Federal authorities arrested Raheman in the U.S. and convicted him of kidnapping. Raheman noted an appeal. The U.S. Court of Appeals for the First Circuit affirms in part, vacates in part and remands for resentencing.

On appeal, Raheman argued, inter alia, that the evidence failed to show a crime under the IPKCA because the alleged conduct was not criminal under Massachusetts law. Disagreeing, the Court finds that such a prosecution comports with the language and intent of the statute. Massachusetts law does not criminalize any of Raheman’s actions because no proceedings had been pending at that time. This, however, does not prevent Congress from acting on its own basis.

“In 1993, by virtue of its commerce power ..., and to ‘deter the removal of children from the United States to foreign countries in order to obstruct parental rights,’ Congress passed the International Parental Kidnapping Crime Act to create a new ‘federal felony offense ....’ H.R. Rep. No. 103-390, at 1 (1993) ... The legislative history explains that IPKCA was enacted as a domestic response to issues left unaddressed by international law:”“‘There is an international civil mechanism relating to these cases, the Hague Convention on International Parental Child Kidnapping* for which Congress passed implementing legislation in 1988. ... However, most countries (including India) are not signatories to the Convention, thus leaving individual countries to take whatever legal unilateral action they can to obtain the return of abducted children. Creating a federal felony offense responds to these problems ...’” [Slip op. 9-10]

The Court then turns to the issue of first impression in the First Circuit: whether IPKCA authorizes the conviction of a parent for conduct that is not criminal under State law. “That IPKCA looks to state family law for purposes of defining ‘parental rights,’ ... does not in any way suggest that the statute depends upon state criminal law to delineate the realm of circumstances through which such rights are transgressed. By prohibiting those situations in which a parent ‘removes a child from the United States ... with intent to obstruct the lawful exercise of parental rights,’ ... Congress went further than Massachusetts, which does not criminalize such conduct absent a prior court proceeding.”

“Nowhere in the text of the statute or the legislative history does Congress limit the criminal prohibition in 18 U.S.C. Section 1204(a) to only those acts that are criminal under state law. ... Congress could have provided for the imprisonment of any person who, in violation of State law, removes a child from the United States. It did not do so, and this court will not infer such a limitation where the statutory language does not support it. ...” [Slip op. 12-14]

*[Editorial Note: The legislative history is presumably referring to the Hague Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670, in force for U. S. on July 1, 1988].

Citation: United States v. Fazal-ur-Raheman-Fazal, 355 F.3d 40 (1st Cir. 2004).

*** 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