When the Law Should Ignore Incest

Worldwide media have been all over a case at the Strasbourg human rights court this week as it dismissed a man’s complaint over convictions for incest with his sister. Faced with a delicate moral question, the court ducked the issue, saying it fell within the ‘margin of appreciation’  (ie the area of discretion that the court leaves to member states in some areas of law). I think the law’s involvement in this case is a problem.

Looking behind the titillation factors that captured the attention of the global media, there is a very sad story. The brother was placed into care at the age of 3 and the sister never knew that she had a brother. When he was 24 and his sister 16, he contacted his family. Following the death of their mother that same year, the siblings were drawn closer together and shortly afterwards started a relationship. Although the case was argued on the basis of interference with the brother’s sexual life, it seems from reports that the two were very much in love. They suffered the distain of the community. Their first two children were taken away by social services, causing the couple to want to have more. The third child was also taken away, but the fourth still lives with her mother. The brother was convicted a number of times for incest and served sentences of imprisonment, during which, perhaps unsurprisingly, he was attacked. Despite this, they continued with the relationship. Finally, both were convicted and the brother was sentenced to 1 year four months’ imprisonment. The sister was also convicted, but escaped sentence on the basis that she had a ‘very timid, withdrawn personality structure’ which ‘together with an unsatisfying family situation, led to her being considerably dependent’ on the brother ‘to an extent that she felt that she could not live without him’.

It seems that the so-called ‘Westermark’ effect, whereby children that grow up together develop an aversion to amorous relationships, did not take place, due to the separation of the siblings. However, this separation seems not to have an effect on the perception of the relationship by others. Clearly, there is a very widespread and deep moral aversion towards the relationship (hence the disproportionate media coverage). I don’t think that the answer to questions like this lies only in examining the reasons people put forward to justify their aversion. As Jonathan Haidt and his collaborators have shown, in (hypothetical) situations where people are unable to identify a reason behind their aversion to sibling incest, they maintain their view nonetheless. A common reaction (that of my barber this morning) was that it is because of risk of genetic abnormalities in the children. It is true that two of their children have some form of disability, but this consideration doesn’t lead to criminalisation in comparable circumstances. For example, Huntingdon’s disease is debilitating and absent medical intervention, there is a significant risk of passing it to children. It also seems that those with the disease are more fecund than those without. However, there is no suggestion of criminalising those who take this risk. For the point I’d like to make, I think we just have to accept that there is this widespread aversion.

My suggestion is a different take on the familiar question as to whether the law should enforce morality. I don’t consider that the distinction between law and morality is as stark as many people imagine. For example, many crimes (say murder) are also fundamental moral issues. I also think both are systems of regulation that work in similar, but importantly different ways. In large societies, the legal system is necessary to regulate certain moral issues, but the law is neither necessary, nor very good, at regulating all moral issues. I suspect that incest is an example of the latter. In other words, the overwhelming majority of people would condemn incest and people would not be more likely to commit it in the absence of criminal prohibition (only around half of the states signatory to the European Convention surveyed by the court in fact criminalised sibling incest). Compare this to theft: the majority of people would similarly condemn it, but in a large society without legal penalties for theft, it would be widespread. If an individual does not develop the widespread aversion to incest due to random factors such as separation from his or her siblings, the law’s intervention may only make matters worse. In this case, sentences of imprisonment imposed on the brother did not deter the couple, and seem only to have caused pain and aggravation in an already very difficult situation.

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4 Responses to When the Law Should Ignore Incest

  • Keith says:

    As far as the law goes, an adult should be free to share love, sex, residence, and marriage with ANY consenting adults. It is outrageous that there was a prosecution in this case.

  • Airin says:

    Alot of people will use the excuse that “it is because of risk of genetic abnormalities in the children” but are perfectly willing to allow parents who already possess genetic abnormalities to breed and potentially pass them onto their children. Also, my guess is that the same aversion to incest is present even if that risk is not there as in two brothers or two sisters.

  • Doreen says:

    I am sorry I cannot be comfortable with the concept of legalized incest. But the law as it stands in Germany as present – most definitely needs work.
    I fully understand that sometimes life may accidentally lead two close relations (related unbeknownst to themselves) together and children may result. Spermbanks even calculate this risk. It happens.
    It happened knowningly in ancient history compliments of Ancient Egypt, etc.
    We read Homo Faber or even the tortured poetry of Lord Byron on this topic. Byron became in enamoured of his half-sister whom he did not encounter until grown.
    I understand it happens, but we cannot champion it. The price is just too high.
    Yes there is the spector of serious genetic defects – and the aristocratic houses of Europe can sometimes be looked as a documentary for just what can go wrong. But actually the price I am talking about is social-emotional.
    Should children grow up seeing grown siblings, close blood relations in sexual relationships?
    I mean anyone’s children, not just the couple’s in question. How does life feel safe with that outlook as an acceptable possibility.
    I have actually met victims of abusive family incest. Some were not victimized by their parents, but by their siblings close in age to themselves. Do we really want to tell children – it is okay if your brother/sister makes sexual advances to you when you are grown – raised together or not? The price is too high. But this couple does not belong in prison either. Nor their children seized.
    Alternative: For such a situation – if the love is undeniable, consider doing your community, its children, yourselves and your children a favour – relocate to a different town/region where you are not known by everyone as as close blood relations. Understanding the need for biological children, consider in vitro – using alternately donor sperm for one child and donor egg for a second child. So the children would be to one another (half siblings) and to each parents but without the burden of an incestuous genetic combo.

    So I would legislate this similar to sex change. Must be raised apart as children, have a lasting relationship. Willing to have a name change so it is easier to have a new identity/life and we’ll throw in the cost of in vitro just like the cost for sex change operation. Simply the need appears undeniable.

    So I am saying – why not work with these guys – to make it work. I am not sure why seizing the children is a great idea. I also don’t understand why these people didn’t do the smart thing and move to a European member state that is not quite so stringent about Incest, because they could fight Germany’s legislation from anywhere to European court and at least they would be there for their children?
    I am sure I am wrong and heartless somehow, but as a victim of sexual abuse by a distant family member, I consider a world where sibling could end up in each other’s bed – a truly scary place.
    Just what standards would be left. But no I am not religious and I don’t believe in mortal sin. I think it would be quite weird for stepsiblings whoe were raised together or adopted siblings to enter sexual relationships. I would find that equally scary – though the genetic repercussions are less – but the psychological ones are just as bad.
    Just what’s in my heart …

    • Paul Troop says:

      Dear Doreen

      Thank you for your long and clearly deeply personal response.

      One thing that I would like to make clear is that my post was focussed squarely on consensual sibling incest. Non consensual sexual relations, whether sibling or any other, is a very serious matter and I don’t suggest that this should not be criminalised in the way that it is.

      I also don’t suggest that we champion incest. My point was that our general view of the wrongness of incest is not dependent on it being criminalised. The overwhelming majority of people have a deep revulsion to incest regardless of what the law says about it. The lack of criminalisation in many states is, to me, very telling. Of course, those reared apart who fall in love, such as the couple in this German case, will not share this revulsion (at least towards each other). But of course others viewing the situation, perhaps even their own children, will feel uncomfortable at the very least.

      That being the case, I doubt that the law can add anything to a case such as this one. If anything, it can make an already impossible situation immeasurably worse, given that the individuals concerned are being punished despite it having no impact on their behaviour given their obvious love for each other.

      Perhaps one could argue that not criminalising consensual sibling incest would make other forms of incest, such as non-consenusal incest, more likely to happen? Given that it seems that our revulsion to incest is not dependent on what the law says about it, I’m not sure this is very likely.

      Your proposal for in vitro fertilisation is an interesting one. Do you think that would affect people’s assessment of the acceptability of sibling incest? I’m not sure it would, particularly on the basis of research that has been carried out by Jon Haidt. The research seems to suggest that even in the absence of any identifiable negative consequences for anyone, people still judge incest as wrong.

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