Perhaps no taboo is older and more deeply rooted in society than incest. Although traditionally labelled a universal taboo, a comparative legal review shows that in many countries consensual sexual relations between adult relatives are not criminalized, calling into question the supposed universality of the prohibition. Incest is one of the most controversial areas of criminal law, where legal, moral, sociological, and historical aspects intertwine. This master's thesis therefore focuses on the question of whether the criminal law prohibition of consensual incestuous relationships between adults is justified. Cases from judicial practice, such as Muth v. Frank in the US and Stübing v. Germany before the ECtHR, are analysed, illustrating that courts often base punishment on moral outrage and symbolic reasons rather than on clearly provable harm. Special attention is also paid to the Slovenian regulation of the criminalization of incest under the Criminal Code-1 and the question of the proportionality of such regulation. Based on these starting points, the work examines in detail contemporary theories of criminalization, in particular liberalism with the principle of harm, offence principle and autonomy, as well as legal moralism, utilitarianism, and paternalism.
The findings show that traditional justifications, such as preventing genetic risks, protecting the family unit, and preserving morality, do not provide a sufficient basis for the most severe interference with individual freedom. The issue of consent stands out in particular: genuine consent in a family context may be questionable due to power relations and emotional dependence, but automatically excluding its validity disproportionately disregards the autonomy of adults. The analysis confirms that the criminalization of consensual incestuous relationships between adults is a case of overcriminalization, as criminal law intervenes in an area where harm is not clearly demonstrated and the protection of vulnerable persons could be ensured by other legal means. A more appropriate solution would be for criminal law to sanction only coercive and exploitative relationships, while in cases where there is genuine and valid consent, the autonomy of adult individuals should be respected. The Slovenian regulation, which only criminalises relationships with underage relatives, therefore appears to be closer to liberal approaches, but at the same time raises the question of whether a specific article on incest is necessary at all, or whether it is primarily a symbolic confirmation of the taboo.
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