A couple of days ago the European Court of Human Rights decided a strange case, Stübing v Germany (no. 43547/08), judgment. An adult brother and sister engaged in consensual sexual intercourse, a punishable criminal offense in Germany and about a half of other European countries. The brother, applicant in this case, got a prison sentence. The other half of European countries do not criminalize adult incest. The issue before the Court was whether such a criminalization was consistent with the right to private and family life in Article 8 ECHR. The Court said that it was. For analysis, see this excellent post by Daniel Sokol on the UK Human Rights Blog.
What’s so fascinating about this case is that it is ultimately hard to pinpoint the moral, and hence legal justification for punishing adult incest, other than for the ‘yuck’ factor, i.e. a basically emotional response to the violation of a taboo. And this raises the specter of the justification for pure morals legislation generally, as e.g. with regard to the Naked Rambler, about whom I’ve written a few weeks ago. In other words, while the basis for most modern theories of morality or ethics, be they Kantian or utilitarian or what have you, is that morality is essentially a rational process that can be subjected to analysis through human reason, cases like these point to morality as an intuitive, emotional response in human beings. As a legal matter, the question is whether the simple fact that the community finds a particular practice to be incredbily disgusting is in and of itself enough to punish that practice through the mechanisms of the state. If, in other words, it is not okay for a state to criminalize homosexual intercourse merely because the majority of the population finds the practice to be disgusting (or found it such then) – see Dudgeon v. UK - how could it be okay to punish consensual adult incest merely because we find it to be disgusting?
In that regard, the European Court’s non-response to this question was quite predictable:
58. It thus remains to be determined whether the applicant’s conviction was necessary in a democratic society. In this respect, the Court must examine whether there existed a pressing social need for the measure in question and, in particular, whether the interference was proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests at stake and the margin of appreciation enjoyed by the State (see, among many other authorities, A, B and C v. Ireland [GC] no. 25579/05, § 230, ECHR 2010).
59. The Court reiterates that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when determining any case under Article 8 of the Convention. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (see, for example, Dudgeon, cited above, § 52; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002-VI; and Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-IV). Accordingly, the Court has found that there must exist particularly serious reasons before interference on the part of public authorities concerning a most intimate aspect of private life, such as the manifestation of a person’s sexuality, can be legitimate for the purposes of paragraph 2 of Article 8 (see Dudgeon and Norris, both cited above, §§ 52 and 46, respectively).
60. Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider. By reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than the international court to give an opinion, not only on the “exact content of the requirements of morals” in their country, but also on the necessity of a restriction intended to meet them (see, among other authorities, A, B and C, cited above, § 232, and Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24 ).
61. Applying the principles set out above to the instant case, the Court observes that there is no consensus between the member States as to whether the consensual commitment of sexual acts between adult siblings should be criminally sanctioned (see paragraphs 28-30, above). Still, a majority of altogether twenty-eight out of the forty-four States reviewed provide for criminal liability. The Court further notes that all the legal systems, including those which do not impose criminal liability, prohibit siblings from getting married. Thus, a broad consensus transpires that sexual relationships between siblings are neither accepted by the legal order nor by society as a whole. Conversely, there is no sufficient empirical support for the assumption of a general trend towards a decriminalisation of such acts. The Court further considers that the instant case concerns a question about the requirements of morals. It follows from the above principles that the domestic authorities enjoy a wide margin of appreciation in determining how to confront incestuous relationships between consenting adults, notwithstanding the fact that this decision concerns an intimate aspect of an individual’s private life.
62. The Court reiterates that in cases arising from individual applications it is not the Court’s task to examine domestic legislation in the abstract. Rather, it must examine the manner in which the relevant legislation was applied to the applicant in the particular circumstances of the individual case (see Pretty, cited above, § 75, ECHR 2002-III; Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003-VIII; and Zaunegger v. Germany, no. 22028/04, § 45, 3 December 2009). Furthermore, it is not the Court’s task to rule on the degree of individual guilt or to determine the appropriate sentence of an offender, those being matters falling within the exclusive jurisdiction of the national criminal courts (see Gäfgen v. Germany [GC], no. 22978/05, § 123, ECHR 2010-…, and Öneryıldız v. Turkey [GC], no. 48939/99, § 116, ECHR 2004-XII). The Court will therefore limit its examination to the question of whether the applicant’s criminal conviction in this individual case corresponded to a pressing social need, as required by Article 8 § 2 of the Convention.
63. The Court observes that the Federal Constitutional Court, having analysed the arguments put forward in favour of and against criminal liability and relying on an expert opinion, concluded that the imposition of criminal liability was justified by a combination of objectives, including the protection of the family, self-determination and public health, set against the background of a common conviction that incest should be subject to criminal liability. The Federal Constitutional Court considered that sexual relationships between siblings could seriously damage family structures and, as a consequence, society as a whole. According to the court, criminal liability was further justified by reference to the protection of sexual self-determination. By addressing specific situations arising from the interdependence and closeness of family relationships, section 173 of the Criminal Code could avoid difficulties in the classification of, and defence against, transgressions of sexual self-determination in that context.
64. The Court notes that according to the findings of the Leipzig District Court, the applicant’s sister first entered into a sexual relationship with the applicant following their mother’s death. At that time, the sister was sixteen years of age; the applicant was her senior by seven years. According to an expert opinion prepared before the District Court, the sister suffered from a serious personality disorder which, together with an unsatisfying family situation and mild learning difficulties, led to her being considerably dependent on the applicant. The District Court concluded that the sister was only partially liable for her actions. These findings were confirmed by the Dresden Court of Appeal and by the Federal Constitutional Court.
65. The Court considers that the above-mentioned aims, which had been expressly endorsed by the democratic legislator when reviewing the relevant legislation in the 1970s (see paragraph 46 above), appear not to be unreasonable. Furthermore, they are relevant in the instant case. Under these circumstances, the Court accepts that the applicant’s criminal conviction corresponded to a pressing social need.
66. Having particular regard to the above considerations and to the careful consideration with which the Federal Constitutional Court approached the instant case, which is demonstrated by the thoroughness of the examination of the legal arguments put forward by the applicant and further highlighted by the fact that a detailed dissenting opinion was attached to the text of the decision, and to the wide margin of appreciation enjoyed by the State in the absence of a consensus within the Member States of the Council of Europe on the issue of criminal liability, the Court concludes that the domestic courts stayed within their margin of appreciation when convicting the applicant of incest.
67. There has accordingly been no violation of Article 8 of the Convention.
There are several points of interest here. Note, first, how the Court employs the margin of appreciation doctrine in conjunction with the European consensus, or lack thereof, on the issue. In essence, the Court is saying this: this is a moral issue, on which reasonable people can disagree; when most European states, acting through their democratically elected legislators, make up their mind on such issues, then we can force a recalcitrant state to conform to the consensus that has emerged, as we did in Dudgeon. But we lack the legitimacy to interfere in this process and substitute our own moral judgment for that of each particular state when no such consensus exists.
Note also exactly how much deference the Court gives to the internal legislative and judicial processes in Germany. All that is necessary for the veritable shopping list of aims that can possibly justify the incrimination of consensual adult incest is for these aims not to ‘appear to be unreasonable’ and to be ‘relevant’ and they presto satisfy a ‘pressing social need’ (para. 65). This is not even rational basis-type review; the Court subjects these aims to no scrutiny whatsoever. And I must say that pointing to the fact that there was a detailed dissent in the domestic court as a reason to defer to the majority judgment of that court is probably a first for the European Court.
Fascinating, no? I imagine quite a few people will disagree with the Court’s approach, though in my view it does not ‘appear to be unreasonable’ under the circumstances. As a matter of policy, it allows the Court to generally follow European societies on contentious moral issues, rather then lead them on a leash towards a brighter and better tomorrow, as seen by the Court’s judges, thus avoiding (to an extent) the inevitable political backlash against such judicial imperialism. But note also how the Court’s reasoning, if brought to its logical conclusion, would mean that criminalizing gay sex was perfectly fine under Art. 8 ECHR until a European consensus emerged against such criminalization sometime in the 1980s. And are we deep down happy with such a conception of evolutionary interpretation? Food for thought.