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In April 2012, the European Court of Human Rights ruled that Germany had not unjustifiably infringed Patrick Stübing's right under Art 8 of the European Convention on Human Rights. Patrick had been convicted of incest under the German Civil Code and sentenced to prison for having an adult consensual sexual relationship with his sister, Susan Karolewski. The couple had had four children together.
The Court's decision raises two questions. Was the Court adopting a conciliatory approach towards the margin of appreciation enjoyed by Convention States or was it simply abdicating responsibility and avoiding any serious legal analysis of the emotive, social, and ethical issues which surround adult sibling consensual incest?
The decision illustrates the unavoidable tension facing the Court in balancing the rights of a State to self-determination against the human rights of the individual. This is particularly so when there is no consensus amongst States about the complex moral values which underpin an applicant's claim.
The decision has led to a major debate about the basis of the incest taboo for adult siblings and whether there remains any justification for States to use criminal or civil sanctions in an attempt to maintain the taboo.
This article appeared appears in the November 2012 issue of International Family Law.
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