Definition and Explanation of the Term: Incest
The term incest describes sexual acts between close relatives whose relationship excludes marriage or a registered civil partnership. In many legal systems, incest is not only socially and culturally taboo but also a criminal offense. However, the specific definition and scope of the term vary depending on the national legal system.
Historical Development of the Prohibition of Incest
Origins and Cultural Background
The incest taboo exists in almost all cultures and is often justified with genetic, social, and ethical aspects. Comprehensive regulations on familial relationships and their legal restrictions can already be found in Roman law as well as in religious scriptures. Antiquity, the Middle Ages, and modern times each show different forms and sanctions of the prohibition of incest.
Development in German Law
In German law, the criminal prohibition of incestuous acts dates back to the 19th century. The regulations have been revised several times, particularly in view of changing societal values and considerations of human rights.
Legal Regulations on Incest in Germany
Criminal Liability for Incest (§ 173 StGB)
The German Criminal Code regulates incest in § 173 StGB “Intercourse between Relatives”. Accordingly, anyone who has sexual intercourse with a biological descendant (child, grandchild) or parent is liable to prosecution. Sexual intercourse between full siblings is also punishable. The penalty can be up to two years’ imprisonment or a fine.
Elements of the Offense
According to § 173(1) StGB, the criminal law provision exclusively covers sexual acts in the sense of intercourse (sexual intercourse). Sexual acts below this threshold are not punishable between relatives in the direct line in Germany, provided no other offenses apply (e.g., sexual abuse).
Circle of Offenders
The group of offenders includes biological relatives in the direct line (parents, children as well as grandparents, grandchildren) and full siblings. Adoptive relationships and step-relatives are generally not included by the offense in § 173 StGB.
Penalties and Procedural Modalities
By law, the penalty can be up to two years’ imprisonment or a fine. Proceedings may be discontinued in accordance with § 173(3) StGB if prosecution is not in the public interest.
Constitutional Aspects and Discussion
The criminalization of incest has been challenged several times before the Federal Constitutional Court in Germany. The main arguments against criminal liability relate to the right to sexual self-determination among consenting adults, while proponents emphasize the protection of family structures and potential genetic risks.
Decision of the Federal Constitutional Court
In 2008, the Federal Constitutional Court (Case No.: 2 BvR 392/07) confirmed that the prohibition on incest under § 173 StGB is constitutional. It recognized the public interest in protecting family structures and the risk of genetic harm to offspring as sufficiently weighty reasons for the existing prohibition.
Civil Law: Marriage Ban and Family Law Consequences
The German Civil Code (BGB) contains in § 1307 BGB a prohibition on marriage for relatives in the direct line and for full and half-siblings. A marriage between these persons is invalid in Germany. The same applies to civil partnerships under the Life Partnership Act.
International Law and Legal Comparison
Regulations in the European and International Context
Incest is also criminally relevant in many other countries. The range of prohibitions varies from comprehensive criminalization (as in Germany, France, Austria) to legal exemption for adult siblings (as in some Scandinavian states). Internationally, there are no unified regulations; international law provides no guidelines.
Harmonization and Criticism
Human rights organizations occasionally call for the decriminalization of consensual sexual relationships between adult relatives based on the right to sexual self-determination. On the other hand, there are considerable concerns regarding protection against coercion, domestic violence, and abusive dependence.
Genetic, Ethical, and Societal Aspects
Genetic Risks
A frequently cited argument for the criminal prohibition of incest is the increased genetic risk to offspring that can arise due to close blood relationship. The probability of recessive genetic disorders increases significantly in consanguineous marriages.
Ethical and Moral Assessment
The social stigma attached to incestuous relationships is deeply rooted and based both on historical as well as moral and ethical considerations. In many societies, the rejection goes beyond mere criminal liability and also encompasses civil law and social aspects.
Summary Assessment
Incest refers to sexual relationships between close relatives that are punishable under certain conditions in Germany. The legal provisions include both criminal and civil law regulations and are based on the aim of protecting the family, society, and potential offspring. The legal discussion continues to be shaped by ethical, social, and medical aspects, with different national laws often applying varying standards.
Frequently Asked Questions
Which laws govern the topic of incest in Germany?
In Germany, the issue of incest is governed by the Criminal Code (StGB), specifically in § 173 StGB. This provision criminalizes sexual intercourse between biological relatives in a direct line (for example, between parents and children, grandparents and grandchildren) as well as between full siblings. The provision does not distinguish by gender or mutual consent of the parties involved. Penalties range from up to two years’ imprisonment to a fine. In addition to German criminal law, family law provisions can also be relevant, particularly in connection with marriage bans between certain relatives (§ 1307 BGB) and resulting questions of descent, custody, or inheritance law.
What penalties are imposed for violating the prohibition of incest?
Anyone who violates the prohibition on incest under § 173 StGB must expect a prison sentence of up to two years or a fine. Prosecution usually only occurs if the offense is reported – there is no special investigating authority. For minors or those who were not yet legally liable at the time of the offense, the provisions of juvenile criminal law apply, which can result in lighter penalties or educational measures. In certain cases, the proceedings can be discontinued, for example, if the kinship is only established retroactively, both parties are adults, and no dependent relationship exists.
Is the prohibition of incest controversial in Germany?
The criminal prohibition of incest is the subject of intense legal and public debate in Germany. Critics argue that the ban restricts the personal rights and sexual self-determination of consenting adult siblings. They also refer to judgments of the European Court of Human Rights (ECHR), which has so far upheld the ban despite various challenges. Proponents, on the other hand, emphasize the protective function towards family relationships, the risk of genetic disorders among offspring, and possible dependent relationships. Attempts to reform or abolish the law have so far failed.
Are there differences between Germany and other countries?
There are major differences in the legal treatment of incest internationally. While incest is a criminal offense in most European countries, including Austria and Switzerland, at least in the direct line, there are also countries where only certain constellations – for example, between parents and children – are prosecuted. In the Netherlands and Belgium, for example, sexual intercourse between consenting adult siblings is not punishable. In other countries, such as the USA, there are very different state regulations, ranging from complete legal exemption to severe penalties.
What marriage prohibitions exist with regard to incest?
The German Civil Code (BGB) explicitly regulates in § 1307 that marriage between relatives in the direct line as well as between full and half-siblings is forbidden. This includes, in addition to children, parents, and siblings, also grandparents, uncles, aunts, as well as nieces and nephews in the direct line. There are no exceptions; the marriage ban remains in effect even after adoption. If a marriage is entered into in spite of the prohibition, it is void and can be annulled upon request. This has far-reaching civil law consequences for questions of descent, support, and inheritance.
How do incest offenses relate to witness testimony and confidentiality?
In criminal proceedings, close relatives (e.g., parents, children, siblings) generally have the right to refuse to testify under § 52 StPO. This means that a family member does not have to testify against another family member, even in cases involving incest allegations. In addition, psychosocial professionals, clergy, or physicians may be subject to special confidentiality and privilege to refuse to testify. These rules serve to protect familial relationships and may facilitate emotional coping within the family.
What is the significance of the incest prohibition for custody?
If a child is born from an incestuous relationship, this has significant consequences for custody and access rights. Family courts assess on a case-by-case basis whether the child’s welfare is endangered by the family circumstances. If there are indications of a threat, such as dependency, abuse, or social exclusion, the family court may take measures up to and including the removal of parental custody. Such interventions are always made with strict regard for the child’s best interests, meaning the child’s right to protection outweighs parental rights.
What role do medical risks play in the legal context?
In the context of the legal assessment of incest, the increased risk of genetic harm to offspring plays a role in public discussion but is not itself an independent reason for criminal liability. Legislators often cite the increased risk of hereditary diseases in incestuous relationships as a societal protection concern, but in individual cases it is rarely considered outside of family court proceedings, such as paternity disputes. The focus of legal assessment remains on the protection of family relationships and potentially vulnerable individuals within the family.
