|As well as polygamy, the Christian Right would like the rest of us to believe that introducing same-sex marriage will lead to 'consensual adult' incest. Wrong. Let's analyse the latter.
CAI is the product of Genetic Sexual Attraction, itself an unintentional consequence of adult adoption information reforms. The latter was originally intended to reunite long estranged parents and siblings with adopted or fostered-out adult children. Unfortunately, it has subsequently become the case that in some instances, parents, adult children and adult siblings have been unable to develop the usual inhibitions about sexual contact that usually result within intact families and sibling relationships. Barbara Gonyo first theorised the existence of GSA back in 1991, and fortunately, GSA seems response to preventative psychotherapeutic intervention.
Regardless, a handful of jurisdictions have decriminalised 'consensual adult' incest- Israel, Turkey, France, Spain, Portugal, China, Japan, Armenia, Azerbaijan, Belgium, Estonia, Georgia, Latvia, Lithuania, Luxembourg, Malta, Monaco, Montenegro, Serbia, Slovenia, Ukraine and Argentina- or else it has never been a criminal offence, unlike parent/child rape and child sexual abuse.
In Germany, however, events took a different turn. One particular case bears close scrutiny.
As a consequence of family violence, Patrick Stuebing was adopted out of his birth family as a child. As an adult, he was reunited with his family origin and started living with his mother, since remarried, and his adult but dependent and learning- disabled sister, Susan Karolewski. After their mother died in 2001, Patrick and Susan began a sexual relationship and had four children as a result. Of them, Eric and Sarah have severe physical and intellectual disabilities, and Nancy had a heart malady at birth, since remedied. All three older siblings are in foster care and only the youngest, Sofia, still lives with her parents. Under Paragraphs 153 and 173 of the German Criminal Code, Patrick served a two year sentence for committing incest with Susan (2005-2007).
In 2008, Germany's Federal Constitutional Court upheld the legality of Paragraphs 153 and 173. Stuebing and Karolewski have had no more luck with the European Court and Convention of Human Rights, which similarly upheld Germany's aforementioned anti-incest laws, on April 12, 2012. Stuebing complained that the Federal Constitutional Court and Paragraphs 153 and 173 violated Article 8 of the European Convention of Human Rights, his right to form a family and privacy rights. The ECHR rejected this argument.
However, the ECHR noted that Albania, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, Greece, Iceland, Ireland, Liechtenstein, Macedonia, Moldova, San Marino, Slovakia, Denmark, Italy, Poland, Romania, Sweden, Switzerland, Hungary and the United Kingdom had all criminalised 'consensual' adult sibling incest.
Based on the above German case law, it does not seem advisable or desirable to decriminalise consensual adult incest in our own national context. Indeed, the case points to the risks inherent in doing so. Can Susan Karolewski be said to have 'consented', given her learning disabilities and personality disorder? And what about the severe intellectual and physical disabilities experienced by Eric and Sarah as a result of parental incest?
What should New Zealand do? If I were the Ministers of Health and Justice, I would convene an interdisciplinary medico-legal working panel on GSA and determine what appropriate criminal penalties should result, with provision for GSA preventative and remedial psychotherapeutic care mandated within the sentence duration. Either amend Section 130 of the Crimes Act to include a new clause that deals with 'consensual adult' incest within a seperate set of criminal charges, or create an altogether seperate and new section of the Crimes Act to deal with 'consensual adult' incest. However, CAI should not be decriminalised.
And what has any of this to do with same-sex marriage? Nothing whatsoever. It is a wholly distinct area of criminal law, which has not governed same-sex relationships since the Homosexual Law Reform Act decriminalised gay male sex back in 1986. However, since the Christian Right insisted on bringing this up, here's how it might be dealt with. I do not believe that it is either consensual or adult in the Stuebing case, let it be noted, given Susan's intelllectual disability, which compromises authentic consent in her case.
Michael Bohlander: Principles of German Criminal Law: Oxford: Hart: 2009.
Barbara Gonyo: The Forbidden Love: Genetic Sexual Attraction: Mount Prospect: B. Gonyo: 1991.
Stubing Versus Germany (European Court of Human Rights: 2012): http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-110314 Normal 0 false false false EN-NZ X-NONE X-NONE Craig Young - 21st September 2012