Issachar Gazette: Common Sense in an Age of Vain Ideology
Abre mis ojos
Do we need a law against incest? Guardian, 15 April 2012
The European court of human rights is no stranger to controversy. Last Thursday, however, Strasbourg played it safe and did the expected. The court ruled it was all right to have a law against incest.
The man who brought the case was Patrick Stübing – a young German, who was separated from his family as a little child. When he was in his 20s, he looked for and found his biological mother. He also found his sister, with whom he fell in love. After their mother's death, the siblings began a sexual relationship, which produced four children.
It is not the only case in which biological siblings met only later in life and began sexual relations. One of the theories to explain the phenomenon is that the absence overcomes the "Westermarck effect" that usually applies: kids who grow up together tend to become desensitised to mutual sexual attraction.
Gerrmany, in line with many European countries, criminalises incest. By 2005, Stübing had been convicted several times – he appealed, and the case eventually reached the German constitutional court. That the courtupheld a law whose roots it traced back 500 years is not altogether surprising. What is surprising is that its vice-president, Winfried Hassemer, dissented – and dissented quite forcefully.
Strasbourg was less brave. Thursday's judgment went in favour of Germany – unanimously. It might even have been the right thing to do. But it should not be the ending point of the debate.
The rationale for the prohibition of sibling incest is not all that easy to find. The German court referred to the potential damage to the structure of family life, and there may be some truth in that. Only, in the Stübing case, the family unit had never existed. The partners met as virtual strangers, and the relationship was one between consenting adults.
The constitutional court also said that the prohibition of incest was rooted in "cultural history". Not quite convincing, and a lot depends on the changing concept of the crime. Bach married his cousin. Field Marshal Moltke married his step-niece. In other cultures and other times, the rules were even more relaxed. Cleopatra married two of her brothers; her parents had probably been siblings too.
Then there is the danger of the passing on of genetic diseases. That is a difficult one. On the basis of this reason, should all prospective parents undergo genetic screening? And there is that awkward reminder of the past: eugenics of course was immensely popular with the Nazis, who exhorted people to check the family trees of prospective spouses for nasty diseases that might lurk in the branches.
And finally, the question of morals. That sounds old-fashioned and smells of great-aunt Mabel's Bible class. All the same – large parts of modern criminal law cannot be adequately explained without the moral views behind the rule.
If a man hacks off part of his body, boils it in sauce hollandaise and serves it to a friend, people in this country tend to find this morally repugnant. If a man pummels the face of a fellow human being, but does so by Queensberry rules, people buy tickets for the event.
That is not a question of the victim's consent. Consent may exist in either case. It is a question of the values to which society attaches such importance that their violation can result even in imprisonment.
If it is so difficult then to make a case against incest, did the European court get it all wrong? Not quite. The court was not really asked to say if a law against incest is a good thing. It had to decide if the state is allowed to make such a law. That is a different question.
The court did find that the state had interfered with Stübing's right to privacy – a right that the European convention on human rights guarantees. But human rights come with limitations. In the case of privacy, they are written directly into the convention: the state may interfere with your right if certain interests make this necessary – "protection of morals" is one of them.
And states have a wide discretion in deciding what exactly their morals require. Morals are strange animals, and it is probably not a good idea to try to legislate them for all of Europe. Certainly not in the case of incest, which has known considerable variations from country to country (need one recall that "annual blister, marriage with deceased wife's sister"?).
Still – there must be limits. What if a state banned interracial marriages or allowed slavery? In its own time, that too has been hailed as a "moral" choice. And Strasbourg does acknowledge that the "margin of discretion" given to individual states cannot be without restrictions – it goes "hand in hand with a European supervision".
Then again: why is European supervision appropriate in some cases, but not where the law puts a man in prison because he slept with his sister? It is a lingering concern. The Strasbourg judges have spoken; but the big debate on incest has not even begun.
From the liberal, pro homosexual Village Voice, which distinguishes homosexuality from incest as involving different relationships (familial vs 2 consenting adults argument
David Epstein, the Columbia University political science professor accused of having a consensual 3-year-long affair with his 24-year-old daughter, is back in the news with the recent statement from his lawyer, Matthew Galluzzo, that incest is not all that different from homosexuality. "Academically, we are obviously all morally opposed to incest and rightfully so," he toldABCNews.com. "At the same time, there is an argument to be made in the Swiss case to let go what goes on privately in bedrooms."
"It's OK for homosexuals to do whatever they want in their own home," he continued. "How is this so different? We have to figure out why some behavior is tolerated and some is not."
Galluzzo also asked why consensual incest wouldn't implicate Epstein's daughter, whom prosecutors seem to be treating as victim rather than accomplice, along with his client, and reminded everyone, "these are only allegations."
That's a lot of controversial thinking all at once, and we're not sure if it's Galluzzo's intent to philosophize on social mores or just to befuddle everyone into not thinking about the three years of incest allegedly committed by his client. But why compare incest to homosexually, which we are not all morally opposed to?
He does this because it may be the best argument he has.
We all have issues about sex, of course, especially we Americans. But why are we so viscerally anti-incest? Aside from getting over the initial yuck (and it's a big yuck to get over), sociologists say it relates to the internal power relationships in families -- it's the same reason a professor shouldn't have an affair with a student, except a million times amplified. Thus, the tsk-tsking in the case of the elderly prof and young coed is something very different to the public disgust and horror over a well-liked Ivy League professor who's allegedly had an affair with his own twentysomething daughter for three years. (Incest is not supposed to happen to those types of people, only brother and sister-marryin' types down in Bama.)
A link between incest and homosexuality is tenuous, but Galluzzo is grasping at the straw of sexual privacy to connect them. He brings up Switzerland, where authorities have proposed decriminalizing sex between siblings and between parents and their adult children in consensual cases that don't involve minors, as a matter of privacy. (FYI: around 60 percent of the Swiss public thinks the proposed law is a bad idea.)
In the U.S., a Supreme Court ruling back in 2003 upheld sexual privacy by striking down sodomy laws, determining that states could not criminalize "private, consensual, sexual or intimate conduct that does not involve minors or coercion." What you do in your own bedroom is your own business, they essentially said -- and hence, most of those laws have disappeared from the books, minus bigamy and incest. Why not bigamy and incest? They had "implications for the institution of marriage."
Connection two: Marriage between a parent and child is illegal -- so is homosexual marriage in most states! But why is gay marriage and marriage between parents and children illegal? In order to ensure healthy children, which ensure the future of our civilization...right?
Thus, the triumvirate in the incest-homosexuality comparison: Privacy, Marriage, Biology. Galluzzo's argument would probably go something like, homosexuals have the right to practice homosexuality as a matter of privacy, and so should those who commit incest, because, like homosexuality, incest also a) has "implications for the institution of marriage" because b) biologically, they either can't or may not have healthy children "naturally." And therefore can't, in most places, get married.
And yet the connection is a fallacy. If we're going to consider this institution of marriage based on the institution of family argument -- and we'll all agree that healthy families are important, marriage or not -- let's look to the numerous gay couples raising well-loved, safe, happy children in secure family environments. Who aren't necessarily married, and who may have adopted, or used surrogates or sperm donors to have their children. And let's look at all the heterosexual couples, for that matter, who can't have children without "help" or adoption, and raise their kids in good environments anyway.
Then show us some examples of that in the case of incest. Hm. Mackenzie Phillips, who had a 10-year consensual sexual relationship with her famous dad, ended up abusing drugs, with various mental health problems, and, eventually, on Celebrity Rehab.
Regardless of certain similarities with regard to sexual privacy, biology, and the "institution of marriage," incest and homosexuality can't be compared, really, because they involve very different relationships, from the start.
Look at the expected relationships between parents and kids, and even siblings. There's supposed to be this "unconditional love" you hear about, support, caring, fulfillment, that can only thrive without the tension and instability that a sexual relationship (healthy or not) inevitably brings. Sex is, by comparison, easy. Those deep familial bonds of trust and caring and mutual, non-sexual love are what's hard -- and why it's important to keep them safe.
Meanwhile, two unrelated adults engaging in a relationship, straight or gay, don't face this issue. Men who date men or women who date women (or women and men who date each other!) -- are looking for what will, given a bit of luck, turn into a sexual relationship, and love, in the first place. They're looking for what everyone looks for in a romantic partner. It's hardly the same thing as "transitioning" the familial love you have into a sexual one
Beyond that, do we really need some lawyer to co-opt homosexuality as a "justification" for parents sleeping with their children? Hasn't it been through enough, already?
Comment: Author's conception of "rationality" seems to preclude morality (homosex is wrong) but itself assumes a morality (what's wrong with familial relational muddling? You make a choice to take a risk? Why care about families as a unit?). Even thinking premised on 'rationality' is based on moral assumptions. So the real debate is over: Whose Morality? Not the absence of moral argument.
Many incest laws in the United States invoke this concept. In patently eugenic language, they forbid sex between "consanguineous" (blood-related) partners. But this rationale won't withstand close scrutiny or the march of technology. If genetics is the issue, just get a vasectomy. Then you can bang your sister all you want. Or skip the vasectomy and bang your brother. Gay sex can't make a baby, so the problem is solved. As the German court noted, Stuebing could have dodged Germany's incest law in precisely this way.
Epstein has been charged under a different law. It prohibits sex with any close relative, "whether through marriage or not." It also applies not just to "sexual intercourse" but also to "oral sexual conduct or anal sexual conduct." If the law were rationally based on genetics, it would ignore sex acts that can't make babies, and it would distinguish relatives by blood from relatives by marriage.
What about the Scottish woman who was sentenced to probation—and remains under threat of further prosecution—for sex with her half-brother? She was sterilized years ago. You can't prosecute her based on a risk of birth defects.
So let's set aside genetics and consider the next question: exploitation. Nowadays, when we talk about incest, we tend to think of child sexual abuse. That's how we use the term in the repressed-memory debate and in abortion legislation. When politicians such as President Obama make exceptions in abortion laws for "rape and incest," they're using the terms synonymously, except that in the incest scenario, the rapist is your dad.
But you can't prosecute Epstein under that theory. According to news reports, his daughter is 24, and their affair began in 2006. That makes her an adult. Furthermore, police say the sex appears to have been consensual. Four years ago, Ohio's Supreme Court upheld the incest conviction of Paul Lowe, a former sheriff's deputy, for what the court called "consensual sex with his 22-year-old stepdaughter." And last month, a 27-year-old Florida woman was sentenced to five years of probation for sex with her father. Clearly, we're prosecuting people for incest regardless of age or consent.
At this point, liberals tend to throw up their hands. If both parties are consenting adults and the genetic rationale is bogus, why should the law get involved? Incest may seem icky, but that's what people said about homosexuality, too. It's all private conduct. To which conservatives reply: We told you so. We warned you that if laws against homosexuality were struck down, laws against polygamy and incest would follow. And now you're proving us right.
The conservative view is that all sexual deviance—homosexuality, polyamory, adultery, bestiality, incest—violates the natural order. Families depend on moral structure: Mom, Dad, kids. When you confound that structure—when Dad sleeps with a man, Dad sleeps with another woman, or Mom sleeps with Grandpa—the family falls apart. Kids need clear roles and relationships. Without this, they get disoriented. Mess with the family, and you mess up the kids.
That's the basis on which the Ohio Supreme Court upheld Lowe's conviction: "A sexual relationship between a parent and child or a stepparent and stepchild is especially destructive to the family unit." This destructive effect, the court reasoned, occurs even if the sex is adult and consensual, since "parents do not cease being parents … when their minor child reaches the age of majority." The German court offered a similar argumentagainst sibling incest. Roughly translated, the opinion's key passage says:
Incestuous connections lead to an overlap of family relationships and social roles and thus to a disturbance of a family bereft of [clear] assignments. … Children of an incestuous relationship have great difficulty finding their place in the family structure and building relationships of trust with their next caregivers. The vital function of the family for the human community … is crucially disturbed if its ordered structure is shaken by incestuous relations.
Liberals tend to recoil from such arguments. They fear that a movement to preserve the "family unit" would roll back equal rights for homosexuals. But that doesn't follow. Morally, the family-structure argument captures our central intuition about incest: It confuses relationships. Constitutionally, this argument provides a rational basis for laws against incest. But it doesn't provide a rational basis for laws against homosexuality. In fact, itsupports the case for same-sex marriage.
When a young man falls in love with another man, no family is destroyed. Homosexuality is largely immutable, as the chronic failure of "ex-gay" ministries attests. So if you forbid sex between these two men, neither of them is likely to form a happy, faithful heterosexual family. The best way to help them form a stable family is to encourage them to marry each other.
Incest spectacularly flunks this test. By definition, it occurs within an already existing family. So it offers no benefit in terms of family formation. On the contrary, it injects a notoriously incendiary dynamic—sexual tension—into the mix. Think of all the opposite-sex friendships you and your friends have cumulatively destroyed by "crossing the line." Now imagine doing that to your family. That's what incest does. Don't take my word for it. ReadThe Kiss. Or the sad threads on pro-incest message boards. Or what Woody Allen's sonsays about his dad: "He's my father married to my sister. That makes me his son and his brother-in-law. That is such a moral transgression. I cannot see him. I cannot have a relationship with my father …"
Homosexuality is an orientation. Incest isn't. If the law bans gay sex, a lesbian can't have a sex life. But if you're hot for your sister, and the law says you can't sleep with her, you have billions of other options. Get out of your house, for God's sake. You'll find somebody to love without incinerating your family. And don't tell me you're just adding a second kind of love to your relationship. That's like adding a second kind of life to your body. When a second kind of life grows in your body, we call it cancer. That's what incest is: cancer of the family.
I wouldn't prosecute David Epstein. It isn't necessary. The incest taboo is strong enough to withstand the occasional reckless fool, and I don't want cops poking around in people's sex lives. But incest is wrong. There's a rational basis to forbid it. And we shouldn't be afraid to say so.