Daniel Sokol on Germany's Prosecution of Consensual Adult Sex

I've got a very cluttered virtual desk that needs clearing, probably a byproduct of having a lot of work to do (for which I am thankful) and because of... personal involvements (for which I am even more thankful!) A couple of months back, Daniel Sokol wrote about Stübing v Germany and the recent European court decision maintaining that countries can keep prosecuting adults for consensual sex.

Sokol noted...

Professor Jonathan Haidt, a well-known social psychologist, presented this scenario as part of a study:


Julie and Mark, who are brother and sister, are traveling together in France. They are both on summer vacation from college. One night they are staying alone in a cabin near the beach. They decide that it would be interesting and fun if they tried making love. At very least it would be a new experience for each of them. Julie was already taking birth control pills, but Mark uses a condom too, just to be safe. They both enjoy it, but they decide not to do it again. They keep that night as a special secret between them, which makes them feel even closer to each other. So what do you think about this? Was it wrong for them to have sex?


Most people answered with a resounding yes, supporting their "yuck" response with reasons. Yet Professor Haidt noticed that many respondents ignored elements of the story. Some invoked the risk of bearing children with general abnormalities despite mention of two forms of contraception. Others referred to the risk of damaging the sibling relationship, ignoring the fact that the experience actually improved their relationship. Others pointed to the impact on others, but overlooked their pact of secrecy. When one argument was rebutted, people plucked out another. When their ammunition was exhausted, most people clung to their view that Julie and Mark committed a grave moral wrong. Haidt calls this state "moral dumbfounding". His conclusion is that intuitive moral judgments precede the explanations of the rational brain.

Emphasis mine. Prejudice is what feeds anti-consanguinamory attitudes and laws. Sokol then turned to the Stubing case...

In December 2000, their mother died and the relationship between Patrick and SK intensified. The following month, they had consensual sex. Over the next five years, they had four children, after which Patrick underwent a vasectomy. The youngest daughter now lives with SK, but the other children are with foster families.


The German Criminal Code (section 173) prohibits sexual intercourse between consanguine siblings. It is punishable by up to two years' imprisonment or a fine. Consensual sex between siblings is a criminal offence in the majority of states of the Council of Europe, including the UK.


In April 2002, Patrick was convicted of 16 counts of incest. He received a suspended sentence and was put on probation. He was again convicted of incest in April 2004 and November 2005, on each occasion receiving a custodial sentence.

Ridiculous.

Patrick argued that the conviction breached his Article 8 rights by affecting his ability to raise his children and interfering with his sexual life. There was no pressing social need to justify the conviction. Incestuous relationships did not spread genetic diseases in society and, moreover, other people with a higher risk of transferring genetic defects, such as older and disabled persons, were allowed to procreate. The criminal ban, plagued by inconsistencies, did not protect the family unit. Why ban sexual intercourse between siblings but permit other forms of sexual contact? Why exempt step-children or adoptive children from criminal liability?


In Patrick's case, the siblings had not grown up together. The normal sexual inhibitions had not developed. The sex was consensual. No one was harmed by the incest. In fact, the conviction destroyed a new family unit. 

Anti-consanguinamory laws are anti-family.

The European Court's reasoning is meagre. It avoids a careful analysis of each individual argument and counter-argument. The dissenting judgment by Judge Hassemer in the Federal Constitutional Court contained a number of thought-provoking observations – such as the law's prohibition of sexual intercourse but not other sexual acts that are also potentially damaging to family structures and society – that were side-stepped by the European Court.

Someday, most people are going to look back at these laws and court rulings and shake their heads. Let the lovers be.