Academic journal article Harvard Law Review

Inbred Obscurity: Improving Incest Laws in the Shadow of the "Sexual Family"

Academic journal article Harvard Law Review

Inbred Obscurity: Improving Incest Laws in the Shadow of the "Sexual Family"

Article excerpt

I. INTRODUCTION

The prohibition of incest is often called a "universal" taboo. (2) Indeed, virtually all cultures throughout history have condemned at least some form of intrafamilial sexual relationships or marriage. (3) Rationales for the prohibition have been advanced by judges, (4) legislators, (5) anthropologists, (6) philosophers, (7) and legal commentators. (8) These most prominently and typically include genetic concerns flowing from the fact that consanguineous relationships can produce deformed offspring; (9) protection of children from sexual abuse at the hands of relatives; (10) protection of "the family" more generally by preventing intrafamilial sexual jealousies and rivalries; (11) and conformity with religious injunctions. (12) Anthropological and evolutionary rationales also exist. (13) All of these explanations for the incest taboo have been attacked by commentators as inadequate to justify current prohibitions of incest. (14) Nevertheless, society's sometimes inarticulable revulsion toward incest has held fast, as have most laws prohibiting the behavior.

The word "incest," however, can denote two quite different forms of behavior. Some forms are nonconsensual: the acts overlap with rape, statutory rape, or child abuse, or they take place in situations that are presumptively coercive because of an abundance of authority embodied in one family member and a high level of dependency on the part of the other. These nonconsensual acts are what most people associate with the word "incest." (15) This is understandable, given that most modern incest convictions are for behavior involving minors. (16) However, consensual incest--when marriage or sexual relationships take place between consenting adults--does exist. The criminal incest laws in the vast majority of states apply to this type of incest as well by making the crime distinct from the crime of rape. Courts likewise treat the existence of a nonconsenting partner (victim) as an essential element of rape, but not an element of incest. (17) Moreover, laws prohibiting incestuous marriage, found in all fifty states, also target behavior that presumably takes place most often between consenting adults.

This Note encourages the law to focus more attention on the critical difference between consensual and nonconsensual incest. Incest laws currently ignore or obscure issues of consent: legislators and judges often focus their attention on powerful but imprecise norms surrounding sex, marriage, and the family, rather than focusing on the characteristics of the individual relationship at issue. Moreover, lawmakers seem to reference these norms almost reflexively as part of a tautological or otherwise meaningless explanation for a given legal outcome; in fact, sometimes the motivating norms lag behind society's evolving mores. The effect of these laws--an effect that demands attention--is to trench on consensual, intimate relationships and marriage.

The rest of this Note proceeds as follows: Part II details why the consent/nonconsent distinction should be the operational fulcrum for incest laws and why other potential rationales are insufficient. Part III provides a brief background on current incest statutes and the family-centered norms that interfere with their application. Part IV explores how these norms can clash problematically at the site of incest statutes and cases, thereby distracting from the more important distinction between consensual and nonconsensual incest. Part V discusses how a conception of "family" centered on dependency relationships obviates some of the problems in the current law and points the way to how incest laws might be improved.

II. A NONCONSENT RATIONALE FOR INCEST LAWS

Incest laws function in the shadow of three powerful norms: sexual behavior is acceptable only in marriage, marriage operates as the core of the "family," and marriage and marriage-based families are morally privileged and should be legally privileged as well. …

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