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Incest — Coming Soon to a Nation Near You
There was an interesting column in the Boston Globe the other day that bears mentioning here, because it concerns a case we wrote up a few weeks ago about a older man who was charged with incest for carrying on a consensual affair with his 22-year-old stepdaughter. The man is appealing, using the Supreme Court’s Lawrence v. Texas opinion, as grounds. As you might recall, in Lawrence, the Supreme Court – in a 6-3 decision – said it was unconstitutional to criminalize sodomy within the privacy of one’s home.
At the time, as the column points out, then-Senator Rick Santorum ruffled quite a few feathers when he remarked, after the ruling (and echoing Scalia’s dissent), “If the Supreme Court says you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.” (In fact, if I recall correctly, the jackass also equated homosexual sex to fornicating with a dog.)
So it was a pretty insensitive, prick thing to say. But, as the columns suggest, Santorum may not have been entirely wrong. Because it now seems that the next big legal issue is, in fact, incest. Internationally, several people are actually pushing for legalizing incest, on very much the same grounds for which sodomy was legalized in America – people should have the right to do whatever they want in the privacy of their own homes. There is another couple in Germany, for instance, who are brother and sister and have four children together. They want Germany’s highest court to abolish incest, arguing that “we’ve done nothing wrong. We are like normal loves. We want to have a family.” The brother even had himself sterilized so that he might not have any more children, which are susceptible to genetic defects. The Globe article also uses as an example another Wisconsin couple who, several years ago, fell in love as adults and had several children together, eventually spending some time in prison as a result.
The Glboe then points out that the Green party in Germany is pushing for the abolishment of incest; that Belgium, Holland, and France already allow it; and that in Sweden, half-siblings are allowed to marry.
So, in a way, is Santorum right? Though the Supreme Court likely will not rule in favor of abolishing incest, the language in Lawrence certainly makes room for it. And if the Supremes don’t abolish it today, how long before these types of relationships begin to multiply, forcing the court to rethink its position? I’m not suggesting it’s likely, but is it possible that there might be a time in our future when incest just might be socially acceptable? After all, Time Magazine is already posing the question of whether incest should be legal — maybe we are already sliding down the slippery slope.
Comments
As the victim of sexual molestation for a period of about 4 1/2 years by my stepfather I am appalled by this. These events took place over 30 years ago and I remember it like it happened yesterday. Incest should NEVER be legalised, it is wrong and disgusting. If the people are consenting then perhaps they should go live in Belgium.
Posted by Jade | May 4, 2007 1:10 PM
A chick at my law school wrote her law review note on why prostitution should be legalized and her analysis centered around Lawrence v. Texas. Her note, sadly, did not get published.
Posted by Hos for Lawyers | May 4, 2007 1:58 PM
Jade- I am not a proponent of incest, but let me clear something up for you. Incest is not the same as child molestation. Incest is the act of two or more related persons engaging in sexual activity. Molestation occurs without permission, and often without relation. I am sorry you suffered at the hands of your stepfather, but your argument is not plausible. A valid argument against incest might be on the grounds of the potential for mental retardation or birth defects. Just sayin'.
Posted by Jane | May 4, 2007 8:38 PM
Isn't one of the issues whether or not "step" anything counts as incest?
I must agree with Jane. Sexual molestation of children and sexual assault - sexual activity without consent of all the participants - is already illegal. If the victim is a minor and the perpetrator is his/her guardian, that's already illegal. It should certainly be enforced better and more sensibly, but it's still already illegal.
So, should it separately be illegal to have sex with someone who is related to you, all above factors (consent, age, guardianship) being accounted for? And, separate from that, does the relationship have to be blood for it to be incest?
Posted by Ricki | May 6, 2007 3:15 PM
As another vctim of childhood sexual abuse, I have to say I do not think that abuse and incest can be considered similar (although, obviously abuse often happens within families).
Plenty of siblings/close cousins etc consent and love each other. All they want is a relationship and our instinctive revulsion to the thought is societally determined, in that for genenrations it's been seen as disgusting, perhaps because of the birth defects risk.
Posted by Caitlin | May 10, 2007 5:39 AM
Note: A 41-year-old woman has a 10% higher-than-average chance of birth defects, because of her age.
http://www.zwire.com/site/news.cfm?newsid=13686645&BRD=1706&PAG=461&dept_id=72001&rfi=6
[...]Robin Bennett, manager of the Genetic Medicine Clinic at the University of Washington Medical Center, with Arno Motulsky, professor emeritus of medicine and genome sciences at the University of Washington, presented a paper on consanguinity in the 2002 April issue of the Journal of Genetic Counseling. In a summary of the paper, the authors conclude that the genetic risks to offspring of consanguineous relationships have been overstated. Bennett, in a telephone interview with The Register Herald, said first cousins are third-degree relatives, uncle/niece are second-degree, and sibling/sibling or parent/child are first-degree. "Uncle/niece risk is somewhat higher than first-cousin risk, which is between 1.7% to 2.8% above the background risk," said Bennett. "Risk in first-degree relations is 7% to 31% - based on limited studies," she said. Following Bennett's reasoning, the genetic risk of morbidity (the relative incidence of disease) in uncle/niece relationships is somewhere between 2.8% and 7% above the risk of unrelated couples. "These (incest) laws are old and draconian," contends Alicia Craffey, a genetic counselor at the University of Connecticut in Farmington. "The (genetic) risk is usually a little bit higher, but not exponentially," said Craffey [...]
Posted by Cantori | August 4, 2007 9:58 PM
The law is in error when it prohibits any sort of sexual relationship that is consensual and between two consenting adults. Homosexuals should have the right to marry. People should have the right to marry polygamously if they choose, or polyandrously if they choose. Adults should be able to enter into any sort of sexual or romantic relationship they choose, so long as the re is no coercion or force used, including an incestuous one. Consensual incest itself is not the issue--INBREEDING when there is a substantial risk of gentic defect through recessive genes is a legitimate concern of society, but NO MORE SO with an incestuous marriage than with two unrelated individuals who carry the cystic fibrosis, Tay-Sachs or sickle cell anemia genes. They should be given free genetic counselling and offered the option of free vasectomy and tubal ligation. If they choose to hve children, they should be offered free amniocentesis testing for genetic birth defects. There IS a slightly greater chance of genetic defects in first degree relations inbreeding (parent-child, brother-sister) but with second degree relations it drops dramatically (uncle-niece, aunt nephew, grandparent-grandchild) and with third degree relatives it is very close to that of completely unrelated individuals (first cousins, cross cousins, other relatives.)
The genetic foundation for inbreeding prohibition does have a basis in fact, but it is a very weak case. For consensual incest (the actual sexual act itself between to relatives), especially where one or both of the partners has agreed to be sterilized, the prohibition is not supportable with anything except the "Eewww!" factor. Consenting adults should not be prohibited from making a personal sexual choice because some third party disapproves. It may be immoral, but it should not be illegal.
Posted by Terry | September 16, 2007 9:38 PM
I strongly agree with Terry..Well put...I believe people should be able to love who, and how they want to love..People should have the freedom to do what they want in the privacy of there own beds. As long as there not doing anthing wrong such as rape, Sexual molestation, anything of that nature. Society needs to get a grip and let people live.
Lets say they make incest legal. That doesn't mean you have to have an incestuous relationship. There not forcing it on america..
Incestuous relationships exist people. Look at all the other places that are not acting blind to the fact anymore Belgium, Holland, and France already allow it; and that in Sweden, half-siblings are allowed to marry. There far more greater crimes in the world. America should start picking there battles wisely.
Posted by couRageous | October 11, 2007 4:00 PM