A Criticism on the “Incest Judgment” of the German Federal Constitutional Court: The Questionability of “Crimes Concerning Sexual Morals”

A Criticism on the “Incest Judgment” of the German Federal Constitutional Court: The Questionability of “Crimes Concerning Sexual Morals”

Titre original: 독일 연방헌법재판소의 “근친상간죄 판결” 비평 - “성풍속에 관한 죄”의 문제점

In order to show that penal provisions to protect sexual moral are neither justifiable nor necessary, this article analysed the so-called “Incest Judgment” of the German Federal Constitutional Court (BVerfG). The provision in § 173 para. 2 sentence 2 German Criminal Code (StGB) threatens a fine or sentence of imprisonment of up to two years for sexual intercourse between consanguine siblings. Recently, Patrick S. who was sentenced under this paragraph contested the constitutionality of the provision. BVerfG rejected the constitutional complaint, arguing that §173 para. 2 sentence 2 StGB complies with the principle of proportionality (Verhaltnismaßigkeitsprinzip) and, therefore, is in harmony with the German Basic Law (Grundgesetz). BVerfG judges decided that the penalizing of sibling incest is appropriate and necessary to prevent the family from harmful effects of incest, and to protect the right to sexual self-determination of the inferior partner in an incestuous relationship. In their opinion, the provision also contributes to avoiding hereditary defects with children produced from sibling incest and maintaining the incest taboo as a social conviction based on cultural history. Quite the contrary: §173 para. 2 sentence 2 StGB is unreasonable for protecting the family. This is due to the fact that the paragraph penalizes only and just vaginal intercourse between physical siblings, thereby on the one hand punishing even incest between natural siblings, which is harmless to the family, and on the other hand excepting all other sexual activities between natural siblings and sexual intercourse between step or adoptive siblings, which can be actually harmful to the family. And the statutory system of StGB as well as the wording of the provision suggests that the safeguarding of the right to sexual self-determination ist not the purpose of §173 StGB. In addition, neither the avoidance of genetic diseases nor the maintenance of a moral concept can be the direct objective of a criminal norm which should be used as the “ultima ratio” to protect “legal goods” (Rechtsguter). All in all, BVerfG judges ignored that §173 para. 2 sentence 2 StGB satisfies neither the requirement of proportionality nor the ultima ratio doctrine. The results stated above could help to reform “Crimes Concerning Sexual Morals” of the Korean Criminal Act.

Sibling incest, Moral concept, Protection of legal goods, Sexual self-determination, Crimes concerning sexual morals