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Abstract:
Criminal prohibitions against incestuous acts, including sexual acts between adults, can be found in many, albeit not all, legal systems. But are such restrictions of individual liberty justifiable from the perspective of criminal law theory? The article starts with describing a prominent case (the Stuebing case) that gave rise to arguments put forward by the German Federal Constitutional Court and the European Court of Human Rights in defense of criminal norms that prohibit adult siblings from having sexual intercourse. However, these rulings are not convincing in the light of a consent-based approach to the criminalization of sexual conduct; such a consent-based model is advocated in the article. One can conceive of circumstances that shed doubt on the validity of consent even when both participants in an incestuous relationship are adults (if one person is the child of the other, or if sexual abuse is carried on that started during the childhood of one person). However, aside from such constellations, if both partners in a sexual encounter have given valid consent, a critical analysis must lead to the conclusion that criminal prohibitions are not bolstered by convincing reasons. Neither eugenic considerations, nor arguments pointing to the protection of families, nor the idea that morality or taboos ought to be protected survive critical analysis. Therefore, legislatures should consider redrafting too far-reaching incest prohibitions.
