Does the Prohibition of Incest Excessively Restrict Human Sexual Freedom?

Abstract

Pursuant to Article 201 of the Polish Penal Code (‘PC’) those shall be punished who commit the act of sexual intercourse with ascendants, descendants, adopted persons, adopters, brothers or sisters. As a result, by introducing the said provision, the Polish legislator has restrained individual sexual freedom, which is safeguarded in Article 47 of the Constitution of the Republic of Poland. Under the Polish Constitution, every human freedom can be obviously subject to restrictions; however, if this is the case, conditions laid down in Article 31(3) of the Constitution of RP have to be always observed. These requirements include: (1) the inclusion of a restriction in a statutory act; (2) possibility of establishing a constraint only if it is necessary for state security, public order, environmental conservation, public health and morality or rights and freedoms of other persons; (3) forbidding excessive interference with the individual freedom being limited (principle of proportionality); (4) prohibition of infringing the essence of this freedom. The in-depth analysis of the prohibition of incest carried out by the author of this study has shown that it was (and still is) public interest that is the premise for introducing Article 201 of the Penal Code. What is more, the said provision can bring about results which the legislator aimed at (principle of usefulness) and is essential to safeguard public interest it is connected with (principle of necessity). By introducing the prohibition of incest, the legislator also maintained the right proportion between the effect exerted by Article 201 of PC and burden imposed on the individual, which means the said provision is in line with the principle of proportionality sensu stricto, and what follows, it fulfils all requirements stipulated in Article 31(3) of the Constitution of RP. Furthermore, the prohibition under Article 201 of PC does not breach the essence of rights and freedoms which it interferes with. It can be argued as well that there is no absolute certainty as to the social harm of incest, effectiveness of the prohibition referred to in Article 201 of PC and positive final balance. This argument will probably entail a demand to act in accordance with the principle of in dubio pro libertate, i.e. to relinquish criminalisation. It appears though that there are no reasons why the criminalisation of incest should be excluded only because not all doubts connected with Article 201 of PC can be resolved unambiguously.