Germany’s Federal Constitutional Court announced its judgment regarding the criminal prohibition of incest on 26 February 2008. The judgment was almost as spectacular as the case of Patrick S. and Susan K. itself. A seven-judge majority held that the criminal prohibition of sexual intercourse between siblings is constitutional, thereby voting against Winfried Hassemer, the presiding judge of their division and vice-president of the court, one of Germany’s most well-known criminal law experts. The presiding judge in turn criticized his colleagues in a dissenting opinion in which he substantiated the—in his eyes, unambiguous— unconstitutionality of the norm.
According to the majority decision, the legislature has considerable discretionary power with regard to the legitimation of the incest norm: “In principle, it is the task of the legislature to define in a binding way the scope of criminal behavior. The legislature is essentially free to decide whether it wants to defend by means of the criminal law a particular legal interest whose protection it considers significant, and, if it does, how to go about doing so.” In the case of incest, the majority recognizes as the goal of the protective action the prevention of damage to the family unit and society and also approves of eugenic grounds as a basis for the criminal prohibition.
According to the outvoted presiding judge, the criminal norm does not protect any recognizable legal interest: An “effective social conviction, based nebulously on cultural history,” as adopted by the Senate, cannot, in his view, legitimize a criminal norm. Concerning the genetic grounds for the criminal prohibition, he argues: “The idea of protecting potential offspring from genetic disorders requires the absurd balancing of the presumed interest of the potentially conceived offspring in a life with genetic disorders, on the one hand, against their presumed interest in their own nonexistence, on the other.” Both camps rely heavily on the findings of the Max Planck Institute.
It follows from the judgment that the legislature alone has the authority to abolish the criminal norm. Insights into criminal law and criminology are also relevant to such a decision. Viewed from the perspective of criminal law, the judgment raises the question of whether, in the case of a criminal provision, as in the case of any other encroachment upon a fundamental right, the issue of proportionality – namely, the legitimacy of the goal of the intervention, its necessity, and its proportionality (in a narrow sense) – is the only issue to be considered. In contrast, classical criminal law theory, with its requirement of the protection of a particular legal interest as well as the requirement of a fragmentary application of the criminal law as ultima ratio, seems to set higher standards.
Thus, this case is not only about issues particular to incest; rather, it raises the question of whether criminal law, with its associated ethical condemnation and its recourse to measures that encroach significantly upon the right to liberty, is subject to stricter standards and, as a result, to other constraints than are provisions in other areas of public law. These questions are fundamental and relevant to other areas of research at the Institute as well, such as terrorism, where the application of criminal law is avoided and issues are dealt with instead by means of police law or the law concerning foreign nationals.
The departments of criminal law and criminology of the Max Planck Institute in Freiburg will publish their expert opinion on incest in the framework of an expanded research project and will continue to engage in research on fundamental questions concerning the limits of criminal law in a changing world.