The Solicitor - The FindLaw UK Life, Family and Workplace Law Blog

Human rights: Do we need incest law?

The European Court of Human Rights has defended Germany's right to have a law banning sexual relationships between direct family members. The court, ruling in the case of Stübing v Germany unanimously upheld German law which is thought to date back some 500 years.

The case concerned Patrick Stübing, a German man who was raised away from his biological parents from a young age. He sought out his parents when he was in his twenties, making contact with his biological mother, and eventually meeting his biological sister.

Events took a turn when he fell in love with his sister. After the death of his mother, they commenced a sexual relationship, having four children together.

Cases such as this are fairly common, particularly in families where one sibling grows up apart from the others. It is thought that growing up together desensitises children to having sexual feelings towards one another, something which is called the 'Westermarck effect'.

Germany criminalised sex between siblings and other direct family relations for many years, with most EU countries having similar legal provisions.

Mr Stübing has been convicted of the offence several times, and has always appealed his convictions. This appeal went to the highest court in Germany, where one senior judge dissented quite strongly to the German law against incest.

Mr Stübing argued that the law prohibited his right to privacy and right to a family. However, the ECHR ruled that "the main basis for punishment for incestuous relationships is the protection of marriage and the family."

The judgment also notes significant risks to the health of children born from incestuous relationships. Two of the four children born to Mr Stübing have some disabilities.

In judgment the ECHR ruled that the State had interfered with the applicant's right to privacy. However, they also noted that all human rights come with limitations, and the 'protection of morals' by the State is one such limitation. On this basis, the ECHR upheld Germany's right to outlaw incest.

Related links:

Read more on the story (The Guardian)

Right to privacy (FindLaw)