Johanna Westeson - The ICHRP

United Kingdom, 414 the Court considered a case where two individuals related as former
father-in-law and daughter-in-law where unable to marry under British legislation. The
Court found that since this particular relationship was not banned under incest legislation,
it made little sense that their union could not be formalized through marriage. The Court
found that Article 12 of the Convention, the right to marry, had been infringed upon. 415
Council of Europe Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse
The Council of Europe Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse 416 does not explicitly mention incest, but mandates
contracting parties to penalize sexual activities with children where “abuse is made of a
recognised position of trust, authority or influence over the child, including within the
family” (Art 18). According to Article 28, when sexual exploitation or abuse has been
committed by “a member of the family, a person cohabiting with the child or a person
having abused his or her authority,” this shall be seen as an aggravating circumstance (Art
28.d).
3. European Union
The proposed EU Council Framework Decision on combating the sexual abuse, sexual
exploitation of children and child pornography, 417 contains exactly the same wording as the
Council of Europe Convention (above) on penalization of abuse within the family (Art
2(b)(ii)) and sexual exploitation and abuse within the family as an aggravating
circumstance (Art 7(2)(c)). As of April 2010, the Framework Decision is not yet in force.
4. Domestic legislation and case law
On the domestic level, the debate surrounding incest mainly concerns the issue of whether
consensual sexual relations between close relatives who are have reached the age of
consent should be penalized or not. In several European countries, inter alia Spain,
Turkey, Belgium, and the Netherlands, such relations are not criminal, while in others,
such as the United Kingdom, Germany, and Sweden, incest is always a crime, regardless of
whether it occurs between consenting adults or not.
414 Application no. 36536/02, decided on 13 September 2005.
415 The holding of this case is more important for the purpose of sexual health and rights than the reasoning
of the Court. The Court implies that, had sexual relationships between parents- and children-in-law also been
criminalized, and had there been no exceptions to this rule, it could also have accepted the ban to marry. Such
reasoning does not seem to embrace the notion of sexual self-determination and health of adult persons
wishing to marry each other. However, the outcome is still relevant: the Court does not allow random and
nonsensical infringements upon the right to marry even if justified with notions of ‘protection of the family.’
The Court also criticized British investigations into suitability as to who could marry, suggesting that the
decision to marry is a fundamentally private affair with which the State should interfere as little as possible.
416 Council of Europe Treaty Series – No. 201. Open for signature on 25 October 2007. As of April 2010 it
had been ratified by Albania, Denmark, Greece, Netherlands, and San Marino. It will enter into force on 1
July 2010.
417 Proposal finalized on 25 March 2009, COM(2009)135 Final. It will, when it enters into force, repeal
Framework Decision 2004/68/JHA on combating the sexual exploitation of children and child pornography.
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