For the Czech Republic to Decriminalize Adult Consensual Incest

For the Czech Republic to Decriminalize Adult Consensual Incest

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CIAO Rights Europe started this petition to Marie Benešová, Minister of Justice for the Czech Republic

Dear Marie Benešová, Minister of Justice for the Czech Republic,


We the undersigned appeal to you to ask the Czech Parliament to ask the Czech Government to amend the law against incest, so that it does not apply in cases where participants are both consenting adults and over 21 years of age. Moreover, for those convicted under such circumstances, all the elements of their sentences are to be reviewed and repealed in the light of such a legislative amendment

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The law against incest in the Czech Republic, in its present form, is inappropriate, unfair, ineffective and discriminatory. The existing incest law punishes offenses against children as well as adult consensual incest (ACI), making the law is over-inclusive. Prosecution of ACI- oriented (CIAO) couples and custodial penalties and or other punishments, ( incarceration, fines, life-time registration as sex offenders) violates both the spirit and intent of the United Nations' Universal Declaration of Human Rights,(UDHR) in particular, the right to personal and sexual autonomy; "In fact, in 1968, the United Nations International Conference on Human Rights agreed that the Declaration "constitutes an obligation for the members of the international community" to protect and preserve the rights of its citizenry."

"The Declaration is based on the "inherent dignity" of all people and affirms the equal rights of all men and women, in addition to their right to freedom. The Declaration gives human rights precedence over the power of the state. While states are permitted to regulate rights, they are prohibited from violating them." (Note 1)

"The criteria for admission of new members to the UN are set out in Chapter II, Article 4 of the UN Charter:[2] and include "Membership in the United Nations is open to all peace-loving states which accept the obligations contained in the present Charter and, in the judgement of the Organization, are able and willing to carry out these obligations."
Failure to grant CIAO people their full human rights under the Charter could mean that the Czech republic is breaching its obligations to Human rights which it accepted when it was re-admitted to the UN on 19 January 1993.


The current incest law in the Czech Republic does not protect children or adults in a family from being mistreated by a family member, but it does allows the state to maltreat CIAO adults who were in a mutually consenting adult incestuous relationship, (not hurting anyone so it is victimless crime). They are subjected to what is essentially legalized terrorism by the state, and subjected to psychological trauma of experiencing :

home invasion (usually in the middle of the night, by armed police)
arrest, and forced separation from family members,
detention in police custody
interrogation by police, without legal counsel
detention until arraignment / preliminary hearing
humiliation of being accused of committing a criminal offense by legal officials failing to uphold and respect the UDHR
further stress from detention until prosecution in a criminal court),
stress and humiliation of again being accused of committing a criminal offense by legal officials and presiding judge/s while failing to uphold and respect the UDHR.(the Universal Declaration of Human Rights of 10 December 1948).
stress from worry about public humiliation and trial by media reports
plus stress from persecution of other family members by the misinformed incestophobic media and misinformed incestophobic members of the public
further stress of being sentenced to term of imprisonment, involving long detention in prison, loss of children into care or abuse of state institutions,
further stress and trauma resulting from loss of family, friends, jobs, careers, homes, property, savings and reputation due to stigma, (public humiliation, social ostracism) of prosecution, criminal conviction for victimless crime, and stigma associated with crime of incest ( even if between consenting adults).
- All this stress and trauma is bad for CIAO parents and their children and is serves no good reason or purpose. There is no benefit to society in criminalizing ACI. There is only the unnecessary extra burden on the taxpayers and the already over-stretched police, judicial and correctional services, and a large health cost in terms of stress and trauma on CIAO people and their families, and possibly on officials who are aware their actions may be doing more harm than good and are in breach of international human rights guide-lines set by the UDHR.

 

The present Czech incest law not only criminalizes CIAO people, discriminating against them unnecessarily and unfairly, it thus violates their human rights to sexual autonomy, a right guaranteed under the UDHR which is respected in law for all other consenting adults in the Czech Republic. Excluding CIAO people from their universal human rights demonstrates a failure of a country to live up to its commitment to fully implementing the United Nation's Universal Declaration of Human Rights, and the injunctions against discrimination.
Article 7
"| Universal Declaration of Human Rights | 16 Article UNITED NATIONS
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination." Note 2
Maybe CIAO people have a different sexual orientation than non-CIAO people but they should not be jailed or labelled as sex offenders for the rest of their lives because of that.
"Even when the system produces the result that according to the law it is supposed to produce, it hurts people and causes harm along the way... not just to those on the receiving end of justice who have been shown to be guilty or wrong or liable...it is everyone in the process that can be hurt by it: successful parties, unsuccessful parties, accused persons, victims ( in this case, none but the accused themselves) witnesses , lawyers and even judges. ( Note 3).
In fact, members of the Czech public service who feel forced by law to participate in the systemic abuse of CIAO people by denying them their human rights to engage in consensual adult sexual behaviour with the person they love, may themselves be traumatized by this unfair law.

Background
The unfair law on incest in the Czech Republic
Section 188 of the Czech Criminal code[80] prohibits incest between lineal ancestors and descendants and siblings. The maximum penalty is 3 years of imprisonment.[c
(Note 4)
§ 188
Soulož mezi příbuznými
Kdo vykoná soulož s příbuzným v pokolení přímém nebo se sourozencem, bude potrestán odnětím svobody až na tři léta.
Whoever has sex with a relative in a direct generation or with a sibling will be punished by imprisonment for up to three years.
According to the Family Act, marriages cannot be entered into by ancestors and descendants (father and daughter, grandfather with granddaughter, etc.) and siblings (brother and sister). The marriage of such persons is not in itself a criminal offense, but if they were to have sexual intercourse with each other, it would be a criminal offense of intercourse between relatives
Public fears, prejudices, and bigotry towards the CIAO ( Adult Consensual Incest Oriented ) people are largely due to ignorance, which for many years has been caused mainly by the church and church-influenced governments and newspapers, much like public fears and bigotry about homosexuality. (Note 5) In general, societies tend to target isolated individuals and attack anything perceived as a threat.

FOUR MAIN ARGUMENTS TO RETAIN THE CURRENT LAW DEBUNKED
Generally there were four main arguments used in the past to justify the maintenance of laws against ACI ( Adult Consensual Incest) These are all found to be bogus and without merit in the 21st century.
1. public opinion; 2. Protection of the child and other family members;
3 The maintenance of family solidarity and cohesion; 4 The genetic argument

1 - Public Opinion.

It has been argued that public opinion is against the legalization of ACI . However, public opinion has changed dramatically since the 1980s. For example, after the Australian Royal Commission on Human Relationship in the 1970s in its official report(Note 6) made many recommendations to the Australian Government, including the legalization of abortion, homosexuality, prostitution AND consensual adult incest.
In 2014 the German Ethics Council told the government it should decriminalize incest between consenting adults. (Note 7)
Of the 47 Council of Europe member states, 22 of them (46.8%) do not criminalize ACI (Note 8)

Many Western countries have already passed laws that reflect the greater liberalization of attitudes to sex and relationships, including laws to legalize same-sex marriage. 'The Czech Republic is often considered the most progressive former Eastern Bloc country in regards to lesbian, gay, bisexual, and transgender (LGBT) rights. Homosexuality was legalized in 1962. In 2006, it legalized registered partnerships for same-sex couples, and a bill legalizing same-sex marriage is being considered by the Parliament of the Czech Republic as of 2020.' In 2021 an new bill went to parliament to amend the Civil Code to say 'marriage is a union of "two persons" instead of a "man and a woman" in the current version.' ( Note 9).

France legalized ACI and homosexuality in 1810. and about 40 countries followed suit. In the past, where there were theocratic states, usually monarchies with official state religions, and no separation of church and state, ecclesiastical or secular. Fornication, adultery, divorce, prostitution, abortion, homosexuality were religious sins to be punished by ecclesiastical courts. Later, as these states became more democratic and secularized, (but still largely influenced by powerful ecclesiastical bodies, especially in countries like England Norway and Denmark where there is constitutional recognition of an official state religion), these sins were and sometimes still remain, criminalized. However, in most modern countries today, the state is secular and there is a separation between church and state. Modern states are secular and democratic and considerably more liberal than the out-dated theocracies and crypto-theocracies, such as the UK. Generally speaking, modern secular democratic states no longer jail people simply because they have broken a moral rule or religious taboo. To continue to maintain laws that severely punish people for victimless crimes such as ACI , laws based on obsolescent ecclesiastical rules and religious bigotry, is simply to live in the past. Such laws should be rejected as anachronisms.

Attitudes to human rights have changed dramatically, and this has been been brought about by modern education and increased awareness of United Nations Universal Declaration of Human Rights, including the right to personal and sexual autonomy;
The media has exposed the fallibility of the church, and sadly, too often is crimes.( Note 10) 'The Emperor has no clothes'. More people have traveled to more distant places, have greater knowledge and experienced and are more tolerant and have a better understanding of a wider variety of cultures and the diversity of kinds of sexual relationships than ever before. People want and expect more freedom of thought and choice for themselves and are more tolerant of and less moralistic and judgmental of others than ever before. An example of this is a newspaper report that says 'In defiance of the Vatican, Catholic priests in Germany are now blessing same-sex couples.' ( Note 11)
Allegations that the law is based on public opinion are doubtful at best.Incest law was written without any public opinion polls on ACI ever being conducted. In the last century it was possible to take advantage of ignorance and misconceptions about ACI. The media and education system  have conflated healthy, happy and consensual relationships between adults in CIAO relationships (not forced, by deception or abusive) with unhealthy, unhappy non-consensual abuse, coercion, especially child abuse, statutory rape, and all labelled under the generic and greatly misleading term 'incest'. This institutional manufacture of incestophobia /Ciaophobia /Ciao prejudice used a similar construction process method as was used to create homophobia. By conflating the various meanings  of the word 'incest' into one with no positive connotations, the word was weaponized in media reports so that even ACI cases with loving CIAO relationships were viewed negatively, having been mis-associated in the public mind with ideas of child abuse, statutory rape and pedophilia. But most Czech people now know that nearly half of the EU states (11/27) do not criminalize ACI, and so the Czech Republic cannot continue to impose its discriminatory incestophobic laws with impunity as in the past. For the majority of right-minded Czech citizens realize that to do so involves unethical discrimination against, imprisonment, abuse of, (job loss, family separation,) and essentially the torture and abuse of innocent and harmless CIAO people and this is be a crime against humanity and a breach of the UN declaration of Human Rights.
Even if the European Court of Human Rights in Stubing v Germany (2012) 55 E.H.R.R. rejected Stubing's application to the E.H.R.R court to overturn the decision against his appeal to the German Constitutional Court, claiming "contracting states enjoy a wide margin of appreciation,"(Note 5) the Court is criticized because:
'five of the six main arguments that the E.H.R.R.used to justify rejecting Stubing's application were the same sort that were used in earlier decades in support of maintaining the criminalization homosexual acts between consenting males. (1) 'contracting states enjoy a wide margin of appreciation. (2) the public is morally enraged (3) seriously damages family structure (4) the common conviction that 'it' should be subject to criminal liability (5) the need to maintain the taboo against it. The 6th argument, 'the risk of genetic abnormalities.'

As J.R. Spencer points out ' .. these risks do not make much of a case for imposing criminal liability. The enhanced risk of genetic abnormality, though it exists, is relatively small - and very much smaller than the risk when lawful sexual intercourse takes place with someone who is the carrier of a genetically transmissible disease, like Huntington's chorea or haemophilia.(And even this small genetic risk of course only arises where both of the incestuous parties are fertile, unlike the Stubings after Mr Stubing's vasectomy.) And the risk of the behaviour breaking up the happy home - or making an unhappy home yet more dysfunctional is even less convincing as a reason. If it were generally accepted as a sufficient ground for criminalizing sexual acts, the prisons of the Western world would be even more overcrowded than they are."
We note that Czech Republic has not yet legalized Same-sex marriage though same-sex sexual acts between adults have been legal in Czech Republic since 1942.

2- Protection of the child and other family members

By definition, ACI does not include anyone under the age of 21. It, therefore, refers only to adults and excludes persons under the legal age, and even those who are a little older and are still mentally immature, but legally adults in every respect. Children are protected from sexual and other abuse by other laws, and there is no need for double criminalization of the offense. In other countries, such as England and Australia, the crime of "child sexual abuse" has replaced the more stigmatizing and psychologically harmful term "incest". Victims of child sexual abuse do not benefit from stigmatization when associated with the taboo word "incest". (Another reason why the current law needs to be urgently reformed).

Punishing CIAO couples does nothing to protect children other family members from sexual abuse by relatives. If a parent goes to prison for ACI, it means that if there are small children in the family, they have lost the family income from the family income earner. If adult siblings are involved in the ACI, how can jail imprisonment protect someone in their family? The two are punished for being in love with each other. The law punishes the entire family and splits them by denying them the income they could have had from two working adults who are now jailed and humiliated. The law does not protect a family by embarrassing its members and humiliating them by linking them to CIAO couple in the family which is stigmatized by criminal conviction for incest.

3 - The maintenance of solidarity and cohesion of the family

A New Zealand Legislative Commission cites as a reason for the continuation of the incest law in New Zealand. (Note 13)
"The integrity of the family is the element that must be added to the above considerations to justify the prohibitions. The United Nations stated in 1994 that the "family is the fundamental unit of society". It is critical to the development and maintenance of its individual members. [318]

"For most people, a family is a place where they want to belong and feel safe, where they are accepted, recognized, loved and cared for. The most important requirement, however, is that society ensures that families are stable and healthy and that members assume responsibility for each other, as they are the most effective defense against marginalization, frustration, and distress. In times of crisis, social tensions and personal problems, the first place where help is usually sought is within the family. The family has the potential to be the best institution for the education of children and intimacy between adults."
"Incest threatens the security and stability of the family unit. Marriage in close family relationships is considered undesirable for the same reasons. The Scottish Law Commission, in its report on the law of incest, has found that incest can cause psychological or other direct harm, that family trust collapses and that sometimes can lead to disruptive rivalries. "[319]

299 These terms apply equally to families linked by an adoptive relationship and those related by consanguinity. Note 13
Our answer to all this is that there is no evidence that ACI disturbs family cohesion or solidarity more than fornication, promiscuity, divorce, homosexuality, prostitution or adultery or even unemployment. (Prostitution in Czech Republic is legal and regulated; it has been legal since 1942. ) All these acts are no longer subject to criminal punishment, as they were in the past. Incest, like other acts mentioned above, was a sin according to the Christian church, and according to church law, it was punished by various penances and "dispensations" (or "fines"). But it is no more a harm to family integrity than the others, so the law discriminates unfairly and unjustly against CIAO people when ACI is criminalized while the other 'sins' are no longer criminalized. Even if consanguinamory, ACI orienation (CIAO) were a choice and not an orientation, is that a reason to deprive a person of any protection from the state? Of course, when we defend the rights of Jews or Muslims or any other religious minorities, we do not mean that they cannot but be so;rather, we give dignity to the chosen way of life."

CIAO couples, married with children or not, form a family. They deserve the respect of society and protection of the state as "The United Nations established in 1994 that the" family is the fundamental unit of society. "It is critical to the development and maintenance of its individual members."
Those who feel that Ciao relationships could cause jealousy in families should remember that there are jealousies in all relationships, even hetero and LGBTIQ ones and everyone can feel insecure at times. It is always CIAO awareness time, and anyone with CIAO fears or anxieties about family members needs to get over it by maintaining a positive 'live and live' attitude to life.
4 - The genetic argument

The criminalization of CIAO sexual relationships because of a purportedly much higher risk of birth defects in children from close-kin relationships, does not stand up to rational argument.

As A.H. Bittles (Note 12) commented about the study in the former Czechoslovakia by Seemanova (Hum. Hered. 21, 108; 1971) which has frequently been used to show the deleterious effects of parent-offspring and brother-sister matings, 'a closer examination of the original data must raise a number of doubts as to the validity of the control group employed.' The lower age of mothers and lower biological fitness in the incestuous group compared to the non-incestuous control group used in the study, 'when considered in conjunction with the specific adverse social factors accompanying incestuous pregnancies, the conclusions on incest drawn on the basis of this particular study appear rather less convincing.'
According to a paper by Dr. James A Roffee's (note 13) an internationally recognized expert in criminology:
"The genetic argument has been judged and disregarded in England and Wales. A number of reasons supporting such a conclusion include: that genetics was not used as a justification in the past, that there are great doubts about the greatly increased risk of a variety of Illnesses would justify an offense, and it would not matter to the achievement of the goals of protecting family and children. If the incest law were justified by genetic defects of potential offspring and thus overriding the principle of sexual autonomy, this would not just be one relatively remote problem, but also has the added effect of making a mistake caused to offspring, illegal. "
"Since all mating couples have a 2-3% chance of having a child with a birth defect (consanguineous couples are only marginally higher), the consistency of the law would criminalize "all bad fruit-producing sexual intercourse" and would thus criminalize a large number of sexual acts that produce children with birth defects. It would, of course, be unfair to convict the parents of the 6% of children born with birth defects every year worldwide." So why lock up a tiny number of people in ACI relationships who are only slightly more likely to have a child with a birth defect than the general population?"
The New Zealand Law Commission document mentions the genetic argument as the reason for the continuation of the incest law in New Zealand, but ends with this approval:
"Logically, genetics can not be the sole determinant, because contraception can prevent the birth of children in such relationships." (Note 14)

The German Law professor Joachim Renzikowski (15) wrote: "Criminal law is not there to protect morality."
"In countries where the offense had been abolished, there had been no increase in incest."
"You can not protect a child from the way it is conceived, otherwise there are many high-risk groups that should be banned for children: women of advanced age, smokers, alcoholics or people with relatively common hereditary diseases, such as cystic fibrosis." "In the fall of Leipzig, incest did not destroy a family, it only started in the first place," says Renzikowski. "The rule of law does not collapse if we show a little grace."
Looking at the graph on this March of Dimes document (Note 16) that compares birth defect rates around the world, the Czech Republic's birth defect rate (44.9) was quite low. However it was higher than in several other countries including some where ACI is not criminalized i.e. France (39.7, the lowest world-wide) Russian Federation ( 42.9) Italy (43.2) Spain (43.4) and Belgium (44.6). This suggests that the Czech Republic could lower its birth defect rate even further by decriminalizing ACI. With better access to education and medical counseling and treatment without fear of legal penalties, CIAO people will have fewer children with birth defects that at present, which is already likely to be less than 1% of the total occurring each year in the the non-CIAO community.Decriminalization of ACI if not full legalization, might also allow for more accurate research to be done in this area, as CIAO people who face legal penalties are unlikely to take part willingly in academic studies of the CIAO community.
"If ACI could result in harm to individuals or to society, it would be fairer and less cruel and cheaper to respond to the possibility with harm reduction strategies (Genetic testing, optional abortion and Legalized ACI marriage) than with criminalization - complying with UN Human Rights laws."

Conclusion

There are no valid arguments to justify further continuation of the law criminalizing the CIAO Community. As the four arguments: public opinion; protection of the child and family; solidarity of the family and community and genetic safety, have been examined, thoroughly debunked, it is time for the Czech Republic to de-criminalize consensual adult incest and to begin the process of bringing justice for CIAO people and giving them full respect recognition and equal rights and protections under the law.
Czech law should be reformed so that Adult Consensual Incest (ACI) is no longer a crime.

 

Note 1.

(https://web.archive.org/web/20120912162219/http://www.unac.org/rights/question.html
Note 2
https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf
Note 3
'Justice is not about you, lawyer told' The Australian, June 7 2021, page 7
Note 4 https://en.wikipedia.org/wiki/Legality_of_incest
Note 5
J.R. Spencer Cambridge Law Journal, March 2013 Vol. 72 No.1 pp 5-7 'Incest and Article 8 of the European Convention on Human Rights'
https://www.iflscience.com/editors-blog/medieval-catholic-church-family-policies-molded-western-society-as-we-know-it-today-study-claims/?fbclid=IwAR0U85mUQq51ZD4W97-y03ZfKQs0IrF7NjeEKoOQzKn0Bzs47oO8Wc-QUJM
Note 6 http://apo.org.au/node/34438 Royal Commission on Human Relationships Report 1975
Note 7. https://www.lifesitenews.com/news/decriminalize-incest-says-german-gvmts-ethics-council
Note 8. The 22 of the 47 Council of Europe members which do not criminalize adult consensual incest are: Armenia, Azerbaijan, Belgium, Estonia, France,Georgia, Italy, Latvia, Lithuania, Luxembourg, Malta, Monaco, Montenegro, Netherlands , North Macedonia,Portugal, Russia, Serbia, Slovenia, Spain, Turkey, Ukraine.
Note 9. (https://www.usnews.com/news/world/articles/2021-04-29/czech-lawmakers-give-nod-to-same-sex-marriage-final-vote-uncertain
Note 10
https://www.abc.net.au/news/2021-06-01/childrens-bodies-kamloops-indian-residential-school-trudeau/100180332
Note 11. https://www.sbs.com.au/news/in-defiance-of-the-vatican-catholic-priests-in-germany-are-now-blessing-same-sex-couples
Note 12. Bittles, A.H. Nature Vol 280 12 July1979
https://www.academia.edu/28873747/79Bittles_Nature_Incest_reassessed.pdf
Note 13. Roffee J.A., ‘Incest in Scots Law: Missed Opportunities in the Scottish Law Commission Review’ Contemporary Issues in Law, [2010] Volume 10, Issue 2, 168-180. Access via SSRN here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1720865
Note 14
http://www.nzlii.org/nz/other/nzlc/pp/PP38/PP38-11_.html
Note 15
https://de.wikipedia.org/wiki/Joachim_RenzikowskiF
Note 16. https://www.marchofdimes.org/materials/global-report-on-birth-defects-the-hidden-toll-of-dying-and-disabled-children-full-report.pdf

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