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55 German Y.B. Int'l L. 613 (2012)
Margin of Appreciation or a Victimless Crime: The European Court of Human Rights on Consensual Incest of Adult Siblings

handle is hein.journals/gyil55 and id is 614 raw text is: Margin of Appreciation or a Victimless Crime? The European Court of Human Rights on Consensual Incest of Adult Siblings PATRICK BRAASCH* Introduction: The incest taboo is a phenomenon as old as human history. Functionally, according toLevi-Strauss, the incest taboo has been the driving force of humankind. By forcing man to find a partner outside his immediate family, different clans have been brought together and society has flourished.1 Others suggest that, for biological reasons, human instinct prevents defective genes being passed down.2 Today, many societies not only disapprove of incest morally, but additionally use criminal law to prevent and punish consensual sexual relations between relatives. However, no clear international consensus exists on the question of whether incest should carry criminal penalties, with a large number of States choosing not to criminalise consensual incestuous relations per se. Confronted with an application by a German national convicted of incest (Stiibing v. Germany),3 the European Court of Human Rights (ECtHR) was called upon to clarify the scope of protection under Article 8 of the European Convention on Human Rights (ECHR)4 with respect to incestuous relations. In particular, the Court's judgment provides new insights into the States Parties' margin of appreciation when using criminal law to protect morality. * Doctoral Candidate at the Walther-Schiicking-Institute for International Law at the University of Kiel. See ClaudeLevi-Strauss, The Elementary Structures of Kinship (2nd ed. 1969), 12 etseq. 2 See ClareMurphy, Incest: an age-old taboo, 12 March 2007, available at: http://news.bbc.co.uk/2/ hi/6424337.stm (accessed on 12 September 2012). 3 ECtHR, Stiibing v. Germany, Judgment of 12 April 2012, No. 43547/08, available via: http:// www.echr.coe.int/ECHR/EN/hudoc (accessed on 12 September 2012). 4 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 No- vember 1950, ETS No. 5 (ECHR).

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