Johanna Westeson - The ICHRP

sexual relations among adults. Several European countries have taken this path, including
Spain, as shown. The other trend is criminalization, based on moral and cultural concerns
and preoccupied with the possible negative effects on children of incestuous relationships.
The German case discussed above is a clear illustration of this view.
Looking closer at the German case, the reasoning of the Court is problematic from a sexual
health and rights perspective. The Court loosely referred to morals and societal convictions
without examining whether those supposed convictions are based mainly in prejudices and
archaic views on sexuality and the family. The references to the risk of genetic diseases in
the offspring of incestuous relationships also raise concern. First, the law does not address
the sexual relations of other groups of individuals who are at high risk of passing on
genetic disorders (women over forty, persons who themselves suffer from hereditary
genetic diseases, etc.). This obvious inconsistency is not addressed by the Court. Second,
the Court seems to assume that children with genetic disorders are unwanted in society, an
assumption with strong ideological overtones.
As pointed out, there are no clear human rights standards for how to address adult and
voluntary incest. Nonetheless, state regulation of voluntary sexual relationships between
adults always raises concerns from the view of sexual self-determination, and a strict
enforcement of incest laws with regard to consenting adults may have negative sexual
health repercussions. Regardless of whether incestuous relationships are to be perceived as
‘healthy’ or ‘unhealthy,’ it can be argued that criminal law is an inadequate tool to address
them. Even if tragic or traumatic circumstances have led the parties to their relationship,
state interference or prosecution of one or both parties is unlikely to improve their
situation. Furthermore, the model of non-criminalization, shown by the Spanish example,
entrusts adult persons with responsibility for their sexual (and reproductive) choices. This
is an important message that reaches far beyond the relatively few cases of incest that may
occur.
On the other hand, looking more closely at the Spanish regulations, it is preoccupying that
a person as young as 13 is deemed capable of consenting to sex within the family. Given
structural and power imbalances often involved in the family setting, there would seem to
be potential for the sexual coercion of young adolescents, with detrimental effects on their
sexual health. The problem has partially been addressed by the Spanish legislature by
making sexual abuse by means of deception against 13-16-year-olds a separate crime, but
this latter provision does not address sexual coercion within the family specifically.
However, this potentially problematic point is linked to legislation on age of consent,
however, and not to the regulations on incestuous relationships as such.
4. GENDER IDENTITY, GENDER EXPRESSION, AND
INTERSEX
Introductory remarks 423
This chapter examines the way that state regulation of gender identity and expression
influences the health of individuals and groups. Gender, gender relations, and gendered
423 These introductory remarks have in part been drawn from general WHO chapeau text elaborated by Alice
M. Miller and Carole S. Vance.
138