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Rationality required in debate of incest taboo
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LAST month, the German Ethics Council, a statutory body that reports to the Bundestag, recommended that sexual intercourse between adult siblings should cease to be a crime.
The recommendation follows a 2012 decision by the European Court of Human Rights upholding the conviction of a Leipzig man for having a sexual relationship with his sister. The man has served several years in prison, owing to his refusal to abandon the relationship. (His sister was judged to be less responsible and was not jailed.)
Incest between adults is not a crime in all jurisdictions.
The Ethics Council took its investigation seriously. Its report (currently available only in German) begins with testimony from those in a forbidden relationship, particularly half-brothers and sisters who came to know each other only as adults.
These couples describe the difficulties created by the criminalization of their relationship, including extortion demands and the threat of loss of custody of a child from a previous relationship.
The report does not assess the ethics of consensual sexual relationships between siblings. Instead, it asks whether there is an adequate basis for the criminal law to prohibit such relationships. It points out that in no other situation are voluntary sexual relationships between people capable of self-determination prohibited. There is, the report argues, a need for a clear and convincing justification for intruding into this core area of private life.
The report examines the grounds on which it might be claimed that this burden of justification has been met.
The risk of genetically abnormal children is one such reason; but, even if it were sufficient, it would justify only a prohibition that was both narrower and wider than the current prohibition on incest.
The prohibition would be narrower, because it would apply only when children are possible: The Leipzig man whose case brought the issue to attention had a vasectomy in 2004, but that did not affect his criminal liability.
And the goal of avoiding genetic abnormalities would justify widening the prohibition to sexual relationships between all couples who are at high risk of having abnormal offspring.
Given Germany’s Nazi past, it is difficult for Germans to treat the desirability of that goal as anything but permitting the state to determine who may reproduce.
The council also considered the need to protect family relationships. The report notes that incest between siblings is rare, not because it is a crime but because being brought up together in a family or family-like environment tends to negate sexual attraction.
Protecting family
The report does recognize the legitimacy of the objective of protecting the family, however, and makes use of it to limit the scope of its recommendation to sexual relations between adult siblings.
Sexual relations between other close relatives, such as parents and their adult children are, the report argues, in a different category because of the different power relations between generations, and the greater potential for damage to other family relationships.
Discussing the question of incest taboo has proved controversial. In Poland, a comment presenting the views of the German Ethics Council was posted online by Jan Hartman, a philosophy professor at the Jagiellonian University in Krakow. The university authorities described Hartman’s statement as “undermining the dignity of the profession of a university teacher” and referred the matter to a disciplinary commission.
In so quickly forgetting that the profession’s dignity requires freedom of expression, a renowned university appears to have succumbed to instinct.
That does not augur well for a rational debate about whether incest between adult siblings should remain a crime.
Peter Singer is professor of bioethics at Princeton University and Laureate Professor at the University of Melbourne. Copyright: Project Syndicate 1995-2014
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