About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most