In a highly publicized case, the highest court in Germany upheld the criminal punishment of incest on Thursday.
Paragraph 173 of the German penal code (StGB), which states that coitus between siblings warrants a penalty of up to two years imprisonment or fines, remains constitutional, the court said.
The court did not overstep its boundaries, it said, because it considered many factors in deciding to uphold the criminality of “the deep-seated social taboo of incest.” Among these considerations were protecting societal order from the harmful effects of incest and protecting an “inferior” partner in such a relationship. The Karlsruhe court also considered “the prevention of grave genetic disease in the offspring of incestuous relationships.”
The Constitutional Court ruling refers to a case of incest between a brother and sister, Patrick and Susan from Leipzig, who have four children together. The brother’s appeals to several jail sentences for incest have so far been unsuccessful.
The head judge in the case, Winfried Hassemer, voted against the ruling, arguing that the punishment was disproportionate to the crime. The decision, he said, was merely about “moral beliefs, but doesn’t have a concrete interest protected by German law in mind.”
But according to the court, the incest law goes beyond the right to make personal choices because it can “effect the family and society.”
The case was brought by lawyers for Patrick, who has already spent two years in jail over his relationship with his sister, which began after they met each other for the first time as adults in 2000.
The lawyers had sought a ruling that it was unconstitutional to punish consensual sexual relations between two adults and that the law should therefore be overturned. This would have forced a lower court in the eastern state of Saxony to throw out the latest incest charges against Patrick, who was born in Leipzig in the former East Germany in 1976.
He was taken away from his alcoholic, violent father when he was three years old and placed in foster care, and later adopted by another family. He met his sister Susan, who is eight years younger than him, when he was reunited with his mother in Leipzig in 2000.
The brother and his then 16-year-old sister embarked on a relationship that remained secret until their first child was born a year later. Of their four children, two are handicapped.
Patrick, has refused to end the relationship with his sister and risks another jail sentence in the current case that was brought after the birth of their fourth child in 2006.