Right to "sexual self-determination" trumps "abstract idea of protection of the family"
The German Ethics Council, which is made up of prominent doctors, lawyers, philosophers, and theologians, including Bishop Anton Losinger, auxiliary bishop of the Diocese of Augsburg, is an advisory body nominated by the federal government and parliament, and appointed by the president of the federal parliament, the Bundestag.
It voted 14-9 in favor of repealing section 173 of the German Criminal Code, with two members abstaining. Chairwoman Christiane Woopen has acknowledged that “of all the views that the German Ethics Council has presented, this is the first to directly touch upon a deeply-rooted taboo in society.”
“In the case of consensual incest among adult siblings, neither the fear of negative consequences for the family, nor the possibility of the birth of children from such incestuous relationships can justify a criminal prohibition,” the Council explained, adding that, “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.”
The vote was held because of repeated appeals from Leipzig’s Patrick Stuebing.
Stuebing, who had been placed in a foster home when he was three and adopted when seven, was reunited with his then 16-year-old sister, Susan Karolewski, while he was 24. Following the death of their mother they became close and subsequently began a sexual relationship. Together, they had four children, two of whom are disabled, before Stuebing was convicted of incest and jailed for three years.
Karolewski was not similarly sentenced as was she deemed only partially liable due to having “a serious personality disorder” and “mild learning disabilities.” The couple were directed to live apart, and all but the youngest of their children were taken into care.
Stuebing appealed unsuccessfully in 2008 to Germany’s Federal Constitution Court which ruled that even if his family life had been constrained by his conviction, the ruling was acceptable because it was “aimed at the protection of morals and the rights of others,” and was in particular directed towards “protecting the family from the damaging effects of incest.”
The European Court of Human Rights upheld the German courts in April 2012, ruling that Germany’s ban on incest did not violate the right to respect for private and family life guaranteed by Article 8 of the European Convention on Human Rights. The Court observed that most signatories of the ECHR imposed criminal sanctions on consensual incest and that there was no general movement towards decriminalization, with marriage between siblings being prohibited even in those few countries that legally tolerated incest.
Responding the Ethics Council’s statement, Elisabeth Winkelmeier-Becker, a spokeswoman for Angela Merkel’s Christian Democrat party (CDU), said that the abolition of section 173 would send out the wrong signal, and that the abolition of “criminal punishment against incestuous actions within a family would go completely against protecting the undisturbed development of children.”
Stephan Mayer, interior policy spokesman of the CDU parliamentary group in the Bundestag described the recommendation as scandalous, saying,“The Ethics Council must wonder if it is still up to its name and order with this immoral advance. The decision of the committee is absolutely unacceptable.”
The council’s recommendations come just months after Australian District Court Judge Garry Neilson was suspended from hearing cases and widely condemned after saying that just as society had come to accept extramarital and homosexual relations, so too it might accept consensual incestuous ones. Neilson said the “only reason” incest was still a crime was because of the high risk of genetic abnormalities in children born from incestuous relations, but that that was less of a problem now than it was now “there is such ease of contraception and readily access to abortion.”
Greg Daly covers the U.K. and Ireland for Aleteia.
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