Using Lawrence to challenge incest laws?

That’s what one Ohio man is doing, and he’s trying to take it to the Supreme Court.

The man was convicted of sexual battery for having sex with his 22-year-old stepdaughter, who had reported to police that he raped her. Because the report came long after the sex occurred, and because she did not want to testify against him, prosecutors charged him on the incest count rather than with rape. He was convicted, and his conviction was upheld by the Ohio Supreme Court.

But his lawyer is now arguing that the Ohio law is too broad because it encompasses sex between stepparents and stepchildren who are above the age of consent. And he’s using Lawrence v. Texas, the landmark case which invalidated a Texas law that made sodomy between two consenting same-sex partners a crime, to make his case:

J. Dean Carro, Mr. Lowe’s lawyer and a University of Akron law professor, said he was troubled by the breadth of the state law, which criminalizes sexual contact between stepparents and stepchildren of any age.

He argues that consensual sex that does not involve minors or adults who may be coerced or injured by the act should be legal in light of the landmark 2003 Lawrence v. Texas decision in which the Supreme Court overturned a Texas sodomy law that barred consenting adults from engaging in homosexual contact.

It’ll be interesting to see if the Supreme Court accepts this. The rape accusation certainly makes things different. And I’m not sure I foresee the court legalizing incest. There is, I would argue, a legitimate state interest in protecting the parent-child relationship, even if the two are not related by blood. It’s a little different than consensual sex between two same-sex adults.

45 comments for “Using Lawrence to challenge incest laws?

  1. anna
    March 25, 2007 at 12:54 pm

    We should use Lawrence to challenge obviously crappy sex laws. Who needs laws against fornication, adultery and masturbation (in private)? But they are still on the books, making us look backward. And then there are laws against cohabitation and sex toys, which are sometimes actually enforced.

  2. March 25, 2007 at 12:54 pm

    My initial thoughts is that I’m not sure that Lawrence v. Texas applies – that overturned a law that penalized sexual relations based on the type of physical relation they have, incest is based on the relation between the people involved. Perhaps the lawyer can make a compelling case that the incest laws are too broad, but I really don’t see Lawrence v. Texas as being a relevant precedent.

  3. March 25, 2007 at 12:56 pm

    I suspect that SCOTUS will uphold the law. There are some relationships where we prevent the participants from having sex – doctor/patient, lawyer/client, parent/child, even when all participants are of legal age. We’re concerned with one party having an inordinate amount of power over the other, and leading to a coerced relationship. I don’t see this law as being any different.

    And even if it were, it’s still got the incest squick factor going on, and I don’t see SCOTUS getting over that in their lifetime.

    K

  4. March 25, 2007 at 12:57 pm

    Mr. Caldwell said the critical difference between Mr. Lowe’s case and the Texas decision was that Mr. Lowe had a familial relationship with his stepdaughter that the state had a legitimate interest in protecting.

    But what if there isn’t a familial relationship? I’m an adult, my parents got divorced when I was an adult, one of my parents is now remarried, and the other will be remarried soon. If I were to have sex with one of my parents’ new spouses (ick ick ick), why should they be guilty of sexual battery?

    Since the word “step-parent” isn’t defined in the Ohio Revised Code (unless I missed it), it seems like the sexual battery law would apply to a situation like that, which definitely seems overbroad to me.

  5. Thealogian
    March 25, 2007 at 1:24 pm

    Many of these laws are useful on the books when it is difficult to get a prosecution for something like rape. Incest laws can be used against polygmist when they “adopt” a 14 year old girl, but in reality make her a 4th or 5th wife. These laws have longer statutory limits than other sex based offenses. So, say that 14 year old girl, escapes a polygamist compound, but a rape conviction or indictment is difficult to get because of the misogynist nature of sex-crime prosecutions. Well, in some cases keeping incest laws on the books is helpful when family connections get really complicated.

  6. mustelid
    March 25, 2007 at 2:39 pm

    Eww, eww, ick!
    It’s beyond bizarre that someone would go to court for the “right” to sexually assault their own relations. Even if there’s no blood tie, as in step parent/child.
    Grotesque.

  7. Brad Jackson
    March 25, 2007 at 3:23 pm

    I think the better solution to using incest laws as a tool to prosicute rapists would be to reform how we deal with rape.

    Consensual incest between adults may squick a lot of people, but we shouldn’t be building our laws based on what grosses us out. Reproductive incest is genetically harmful, true, but so is reproductive sex between two people who carry Parkinson’s, and we don’t (and shouldn’t) outlaw that.

    But to argue that we need to keep incest laws around because they can, sometimes, be used to nail rapists is a bad argument. One could just as well argue that Lawrence should be overturned because laws against sodomy could be used to nail homosexual rapists.

    Unless rape is involved the government should not be regulating sex, period.

  8. Brad Jackson
    March 25, 2007 at 3:25 pm

    Forgot to mention. Is anyone else cringing because you just *know* that the Religious Reich is going to be saying “see, we told you that Lawrence would be used to legalize incest, bestiality, etc”?

  9. Josh
    March 25, 2007 at 3:45 pm

    There is, I would argue, a legitimate state interest in protecting the parent-child relationship, even if the two are not related by blood [and both are adults].

    And that state interest is advanced how in this instance?

  10. March 25, 2007 at 4:12 pm

    And that state interest is advanced how in this instance?

    Uh… by outlawing incest. Was that not clear?

    Consensual incest between adults may squick a lot of people, but we shouldn’t be building our laws based on what grosses us out.

    Well, I think there’s a huge question of power here, I think. Even adult children may not have the ability to say no to a parent who demands sex.

  11. Regina
    March 25, 2007 at 4:23 pm

    Hi Jill, would you be willing to expand on your argument that there is a legitimate state interest in protecting the parent-child non-consanguinous relationship?

    (My first thought was in the context of adoptive parent-child relationships– they are non-consanguinous, but the legal parent-child relationship trumps the possibility of any legal sexual relationship.)

  12. Regina
    March 25, 2007 at 4:24 pm

    (I think maybe Josh meant to ask how do you think the protection of the described relationship advances the state’s interest?)

  13. March 25, 2007 at 4:34 pm

    Why do you hate incest, Jill?

  14. March 25, 2007 at 4:40 pm

    In the psychologist’s canon of ethics (also proscribed because of the imbalance of power), it’s next to impossible to have consensual relations with a patient who was once a minor under your care, no matter how much time passed after the termination of therapy. The same thing might apply here… although if I remember correctly, a blanket prohibition on therapist-former patient relations was declared unconstitutional and overbroad in Florida.

  15. Benji
    March 25, 2007 at 4:45 pm

    The incest issue is always a tough call. On one side you have the “ick factor” and the genetic harm and the other you have privacy rights and the whole legislating morality problem. I personally think that incest should be legal as long as it is between consenting adults in the same “level” of the family tree so to speak. Allowing parent-child sort of relationships open the door to too much chance of abuse of power in my opinion.

    One thing I always like to throw out there is a hypothetical case of incest between say two homosexual brothers? No genetic harm is possible and despite the fact that it creeps me out in a big way I have to say that on the principles of the matter it should be allowed and is really none of my buisness.

  16. Josh
    March 25, 2007 at 5:00 pm

    Uh… by outlawing incest. Was that not clear?

    No. Nice and circular though.

  17. nik
    March 25, 2007 at 5:08 pm

    I think the assumption that just because you marry someone you become a parent to their kids is more than a little screwed up. What this guy was convicted of (as opposed to the rape thing that’s in the background) is really no worse than adultery.

  18. evil fizz
    March 25, 2007 at 5:08 pm

    No. Nice and circular though.

    Huh? The state has an interest in protecting the parent-child relationship. Surely that relationship does not encompass sexual relations and it would be within the state’s power to prevent damage to such relationships by banning incest. Or are you asking something else altogether?

  19. March 25, 2007 at 5:11 pm

    No. Nice and circular though.

    There is a legitimate state interest in protecting healthy family relationships. Having sex with your kids or your step kids is not emotionally healthy for those kids, even if they are of major age, because of the extreme power and authority issue. Outlawing incest, therefore, furthers the state interest in protecting family relationships.

    How, exactly, is that circular?

  20. Brad Jackson
    March 25, 2007 at 5:14 pm

    Well, I think there’s a huge question of power here, I think. Even adult children may not have the ability to say no to a parent who demands sex.

    I can see that, I really can. But the problem is that by banning incest we’re interfereing with the right of adults to consent to whatever sex they chose to consent to.

    Its possible for *any* sex to be messed up with power games. That’s why we don’t allow sex between minors and adults, we are assuming that the minor doesn’t have enough life experience to give meaningful consent.

    But at the same time we must ackowledge that adults are adults. It is not the responsibility of the state to keep us from hurting ourselves; only to ensure that we are not harmed without our consent, and that hazardus things are properly labeled.

  21. Alix
    March 25, 2007 at 5:16 pm

    The problem with incest is that families tend to be hierarchical, and the hierarchical nature of the family leads to coercion.

    It is not uncommon for parents to still have some psychological/emotional power over their adult children, even if they have no “real” power (financial or legal, for example). That alone is enough to taint every single case of incest with coercion.

    These familial hierarchies extend beyond the obvious parent-child one, too. Many siblings have a sort of unofficial hierarchy amongst themselves, for example. Many older siblings have coercive power over younger siblings (and sometimes vice-versa).

    So, for me, what it boils down to is this: any coerced sex is rape. Any sex between people in a hierarchical relationship is tainted with coercion, because of that hierarchy. The family is a hierarchy. Therefore, sex with a family member is coerced, and it’s rape. (Incidentally, doctor-patient sex and other such things also fall into this.)

    Now, obviously, not everybody agrees with me that coerced sex is rape, especially because coercion is often subtle, long-term pressure that we can’t exactly point at, and it is possible to be coerced into sex (and therefore raped) and not recognize how you were manipulated/coerced. So as far as I’m concerned, laws banning incest are banning a kind of rape that’s hard to prove to the level our misogynist society would believe, and therefore those laws are a damn good thing.

    I want to know what the stepdaughter thinks of her rapist’s actions, here.

  22. March 25, 2007 at 5:21 pm

    Its possible for *any* sex to be messed up with power games. That’s why we don’t allow sex between minors and adults, we are assuming that the minor doesn’t have enough life experience to give meaningful consent.

    Right. But we also recognize that certain kinds of sex, like Alix said, are inherently power-related. Other types of sex might be, but parent-child sex pretty much always is.

  23. March 25, 2007 at 5:52 pm

    As Norbizness and Alix pointed out, there is always the coercion subtext involved in the parent-child relationship.

    And that, alone, takes Lawrence out of the picture

  24. March 25, 2007 at 5:54 pm

    Josh, I think most of us are having trouble trying to figure out what’s behind your question. If I might take a stab at what I think it is, obviously this case proves that the parent/child relationship doesn’t protect a child from being harmed by a parent. That’s why there are laws against a parent harming his/her child. That doesn’t mean there isn’t a legitimate state interest in protecting the parent/child relationship in other ways. There’s no suggestion that the parent/child relationship should be protected to the degree that a parent can do anything he/she wants to a child. In fact, laws against incest are one of the ways children are protected from being harmed by their parents. In order to foster healthy parent/child relationships, you have to have and uphold laws against harmful ones, like this one.

    Further, any ruling in this case would have precedential value applicable to any step-parent/step-child case, either just in Ohio or nationally if SCOTUS decides to hear the case. My guess is they won’t. They might hear an unambiguously consensual case if they wanted to further instill the notion that step-relationships are to be protected the same way original family relationships are. However, given the fact that the contention is the sex wasn’t consensual, there is no reason for them to hear a challenge based on Lawrence. Lawrence only ever protected consensual sexual relations. Not rape.

    Indeed, the allegations of rape in this case might be one very good reason to have an incest law broad enough to encompass adult step-relations. There may be reasons why a step-child would not want to testify against a step-parent on a rape charge, which would likely bar a prosecutor from bringing a rape charge in most cases. By having the broader incest law on the books, you give the state the ability to protect the step-child without putting her/him through the wringer of a typical rape trial. There will be no need to determine consent, so a victim’s sex-life will become moot.

  25. nik
    March 25, 2007 at 6:26 pm

    …the allegations of rape in this case might be one very good reason to have an incest law broad enough to encompass adult step-relations… By having the broader incest law on the books, you give the state the ability to protect the step-child without putting her/him through the wringer of a typical rape trial.

    I am right that incest laws cut both ways, aren’t I? Because if that’s the case (and I am pretty sure it is) then both parties break the law when they have consensual sex – we’re protecting people in the same way that the law ‘protects’ drug users – and the rape allegation actually stood between the step-daughter and prosecution in this instance.

    There’s no way on earth what this guy is in jail for ‘sleeping with someone while being married to her mum’ should be a crime.

  26. Tricia(freya)
    March 25, 2007 at 6:26 pm

    There may be reasons why a step-child would not want to testify against a step-parent on a rape charge, which would likely bar a prosecutor from bringing a rape charge in most cases.

    Considering how many parents refuse to believe their children when they are brave enough to report that parent’s significant other for abuse. In spite of the harm done, many children (adult or not) do still wish to maintain relationships with their parents. I don’t see that the age of the “child” in question would matter. I may not understand it, but I have extreme sympathy for people who have to live with those situations.

  27. March 25, 2007 at 6:31 pm

    Tricia, the age wouldn’t matter, but no one’s challenging incest laws when the step-child is a minor. Given the case in question, I was limiting my remarks to adults. That was the only reason.

  28. Alix
    March 25, 2007 at 6:32 pm

    Considering how many parents refuse to believe their children when they are brave enough to report that parent’s significant other for abuse.

    And other people refuse to believe the child, too, adult or not.

    My brother’s girlfriend was stabbed in the arm by her stepfather because she walked in front of the couch he was on. Her mother? Thought she’d done it to herself to get attention, despite the awkward angle, and that the girl was just trying to cause trouble because she didn’t like her stepfather. CPS? Went to her house once and decided her mother and stepfather were model parents and the girl was the one with the issues. She was told by her therapist that it wasn’t that big a deal; she’ll be 18 in a year and can leave then. (Totally ignoring, of course, that it takes money to leave – and that there’s no telling what else could happen in the meantime.)

    That’s for a shallow knife wound that didn’t even need stitches. Had her stepfather raped her (excuse me, slept with her), I don’t see her being more believed.

  29. Alix
    March 25, 2007 at 6:35 pm

    I am right that incest laws cut both ways, aren’t I?

    Show me one case of a child coercing the parent into having sex with her. If there is one, then yes, the child should be punished. But the family hierarchy runs the other way, and so runs the coercion.

  30. March 25, 2007 at 7:04 pm

    I don’t think Lawrence will successfully be used to overturn this incest prohibition; besides the “squick” factor (which I agree, shouldn’t be a valid reason to keep laws on the books), I think Lawrence has had fairly limited applications as precedent. If I remember correctly in one case involving that “power differential”, United States v. Marcum (2004), defendant Marcum lost on grounds that “sexual activity that falls within Lawrence’s scope (consensual oral or anal sex) can still be prosecuted if there are issues of ‘military relevance’ (such as “sexual activity between personnel of different ranks”) justifying prosecution.” This might be applicable here?

  31. March 25, 2007 at 7:09 pm

    I am right that incest laws cut both ways, aren’t I? Because if that’s the case (and I am pretty sure it is) then both parties break the law when they have consensual sex – we’re protecting people in the same way that the law ‘protects’ drug users – and the rape allegation actually stood between the step-daughter and prosecution in this instance.

    Not in Ohio when it comes to parent/child relationships (and I imagine most if not all other states are the same way). Only the parent can be charged in those cases. Keep in mind that there’s no age parameter in these laws, and it would be ludicrous for the law to allow jailing a minor child because an adult relative molested them.

    You got an issue? You need to lobby to change the law to add an age parameter and exclude step-relations.

  32. March 25, 2007 at 7:27 pm

    The problem is: say that a 55-year-old man becomes the stepparent of a 38-year-old woman. There’s (I guess) a legal relationship there, but she’s been out of the house for years and years. If they hook up in an ill-considered Easter tryst, they’re both going to jail?

    Keep in mind that the statuteory is “criminalizes sexual contact between stepparents and stepchildren of any age.”

    That’s why I brought up the FLorida case which said that a blanket prohibition won’t pass constitutional muster. If he was her stepfather since age 6, no way in fucking hell. If he was her stepfather for 3 months and she no longer lived in the house at the time the mother’s remarriage took place, then…?

    As for it remaining on the books as a backup for allegations of rape that are rescinded, that isn’t going to constitutionally matter.

  33. March 25, 2007 at 8:00 pm

    The problem is: say that a 55-year-old man becomes the stepparent of a 38-year-old woman. There’s (I guess) a legal relationship there, but she’s been out of the house for years and years. If they hook up in an ill-considered Easter tryst, they’re both going to jail?

    Keep in mind that the statuteory is “criminalizes sexual contact between stepparents and stepchildren of any age.”

    No, just the 55-year-old man would be going to jail. Under Ohio law, it’s sexual battery of the “offender” has sex with a stepchild, but not the other way around.*

    That’s what I was getting at in my comment (#4). I was using myself as an example, because I’m 30, my parents divorced when I was 22, my dad is remarried and my mom will be very soon. Under Ohio law, if my mother’s husband and I had sex, he would be guilty of sexual battery. I wouldn’t be guilty of any crime.

    The legal question is: Would my mother’s husband be considered my stepparent? I certainly don’t think of him that way in the slightest, but from what I can tell, Ohio law does not make that distinction.

    * I don’t live in Ohio, so I’m basing this on an online search of the Ohio Revised Code. Feel free to correct me if I’ve missed something.

  34. Brad Jackson
    March 25, 2007 at 9:03 pm

    So, for me, what it boils down to is this: any coerced sex is rape.

    Agree.

    Any sex between people in a hierarchical relationship is tainted with coercion, because of that hierarchy.

    If by “tainted with coercion” you mean “coercion may exist”, agree.

    Therefore, sex with a family member is coerced

    Disagree. I do not at all argue that any sex with a family member is *potentially* coerced. But it is not inevitable.

    My viewpoint here is doubtless affected by my own parental relationships (which, for the record are non-incestuous, because, eeew). The hiearchial aspect of our relationship ended about the time I was twenty. They didn’t want to keep me eternally a child in their eyes, I didn’t want to be eternally a child in their eyes. We are very close, and quite eglatarian in our current relationship. Possibly the fact that I called them by their first names, rather than their titles, my entire life is a contributing factor. Honestly, it kind of creeps me out to hear an adult call their parents “mom” or “dad”, I mean, aren’t they grown up by now? It might be healthy for people to begin calling their parents by name when they achieve majority, it’d certainly creep me out less.

    But that’s beside the point. Adults make mistakes, and are coercable. That’s a fact of life. I think that incest is not a good idea, but if all parties are adults I also think it isn’t my business, or the government’s business. If there is coercion involved let the rape laws handle it, and if there isn’t coercion involved let the adults do whatever they want to.

  35. Alix
    March 25, 2007 at 9:12 pm

    Brad – I understand your point, but honestly, how common are families like yours? And are ALL traces of the familial hierarchy now absent in your family?

    Rape laws DON’T handle it. Rape is hard enough to prove in cases where the woman is beaten and violently assaulted; how much harder would it be to prove it in cases of coerced incest? If almost all incest IS rape, but a kind that is hard-to-impossible to prove under existing rape laws, why the hell shouldn’t incest be outlawed?

    Want to legalize incest? Superstrengthen rape laws first. Make it so that cases of coerced rape get convictions. Make it so it’s not so damn shameful and HARD for a woman to admit to rape, let alone go through the rigamarole necessary to bring her rapists to justice. Once we’re at a point where a child can accuse her parent of coercing her into having sex and that child is believed, and that parent is convicted, then let’s talk about the reallyreallyuberrare cases of non-coercive incest.

  36. evil fizz
    March 25, 2007 at 9:26 pm

    and if there isn’t coercion involved let the adults do whatever they want to.

    How does one define coercion, though?

  37. mingerspice
    March 26, 2007 at 3:18 am

    I think there are two issues here.

    The first is whether this particular incest law is a good one. On that, I’m agnostic. On the one hand, as Alix, Tricia and others have pointed out, incest laws exist to recognize the inherent coerciveness of most, if not all, parent-child relationships, including ones where the parties are not related by blood. On the other hand, in this case, the Ohio Supreme Court noted that once the step-parent relationship terminates, the incest law no longer applies. In other words, after step-dad and bio-mom divorce, step-dad (assuming he hasn’t adopted step-child) can have sex with his previous step-child without running afoul of the incest law. This seems to me to be a little underinclusive if the idea is to prevent inherently coercive situations. Also, the Ohio Supreme Court’s reasoning doesn’t seem to explicitly mention preventing “coerciveness” as a consideration, but rather only the state’s interest in protecting the “family unit.” So even if this is a good law, it’s being upheld for at best unclear reasons.

    The second issue is whether Lawrence should apply to overturn this law. I think you could split that into two questions: “Do you think that the language and context of Lawrence lends itself to such an application here?” and “Do you think that the consequences of reading Lawrence so that it applies here would be good or bad for future readings of Lawrence?”

    On the first, I would say it’s unclear, but I lean towards no. First of all, language in the Lawrence opinion seems to make it pretty explicit that the justices themselves did not intend it to extend to cases such as incest: “[The present case] does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” The case also made reference to the “full and mutual consent” between the two men, and noted that the state should not “demean their existence or control their destiny” by criminalizing their consensual relations.

    In addition, Lawrence seemed to have a lot of Equal Protection-type considerations along with the Due Process reasoning that went into the majority opinion. Unless step-parents are some kind of systematically disadvantaged class, I think that the courts should take a pretty relaxed view about state laws that target them. I guess I could see step-parents claiming that they are in fact a disadvantaged class, but it doesn’t seem like a winning argument.

    On the second question, about what reading Lawrence this way would do.

    Even if, for argument’s sake, Due Process as interpreted by Lawrence should cover step-parents in this way, the religious right would have a field day, associating protections for same-sex sexual relations with protections for incest. But whatever. The legal system can’t just cave every single time it might outrage the religious right. I suppose you could argue that the tradeoff isn’t worth it (protection of step-parents’ rights to have consensual sex with step-children vs. avoiding fanning the flames of irrational homophobia that tends to undermine due process rights of a far more vulnerable class). I personally think that the 14th Amendment is worth fighting for (this is assuming that one has resolved the first question in favor of seeing this as a Due Process right), even if the political fallout seems painful.

    On the legal precedent question, I dunno. This case seems pretty out-there. I can’t see that it would have a clearly good or bad effect on future readings of Lawrence if that case is read to apply here. On the other hand, I could see a potentially bad precedent being set to limit Lawrence if/when the Supreme Court chooses to say that it does not protect step-parents here, even if, or perhaps especially if it adopts the “coerciveness” theory. One (perhaps farfetched?) example springs to mind – a state might justify a higher age of consent for same-gender as opposed to different-gender partners, reasoning that same-gender pairings are more likely to be “coercive.”

    So I guess this case going to the Supreme Court does frighten me a little. It would be easy and popular for the Supreme Court to uphold this law (I mean, who the hell would actually openly be in favor of letting this particular guy go? He likely raped his step-daughter, for crying out loud.), and in the meantime slip in some pretty limiting language for Lawrence.

  38. Brad Jackson
    March 26, 2007 at 5:58 am

    Alix: All traces, probably not. Enough that coerced sex is not a possibility, yes.

    Speaking strictly on a personal basis, I think it sounds very unhealthy to maintain a parent/child type relationship once the “child” is an adult.

    If almost all incest IS rape, but a kind that is hard-to-impossible to prove under existing rape laws, why the hell shouldn’t incest be outlawed?

    Its on those grounds that I, rather reluctantly, support the idea of a fixed age of consent. Some people younger than 18 are able to give meaningful consent to sex, others aren’t, the possibility for abuse is so great that the only workable solution is to simply forbid all sex between people under 18 and people over 18.

    But here we are talking about adults. People to whom society has granted full agency. People who can drink, smoke, join the armed forces, buy a car, etc.

    Again, I’m purely defending consensual incest here; coercion is, as you said earlier rape.

    I think part of my objection is slippery slope. If we categorically outlaw any consensual sex it opens the doors for regulation of other consensual sex. Either we’re adults, free to engage in whatever activity we chose with other consenting adults [1], or we aren’t.

    When dealing with children it makes sense to adopt the “the potential for harm is so great that we must outlaw the entire thing just to be safe” position. Children are also afforded special protection when it comes to contract law, for much the same (though less viscerally compelling) reasons.

    And then there’s the definition of incest. It includes step-parents, which makes sense from the standpoint of your concerns if we are talking about step-parents who helped raise the child. But it also includes legal relatives (my sister in law, for example) where such considerations simply don’t apply. It also includes “that woman my father married when I was 22”. Sex with sisters in law, or the person one of your geneparents married after you became an adult is doubtless a bad idea, but hardly the potentially coercive situation we’re discussing.

    I guess that the short version is: I’m very nervous about the state telling anyone that consensual sex is forbidden. It seems to infantalize the adults, grant the state powers it simply shouldn’t have, etc.

    [1] So long as non-consenting third parties are not harmed.

  39. March 26, 2007 at 9:26 am

    Incest, to begin with, is wrong for three reasons: 1) the genetic factor, 2) the inherent coercion and exploitation in mixing sex with familial relations of authority factor, and 3) the mucking up family relationships by introducing sexual jealousy where it doesn’t belong factor (a daughter shouldn’t be put in the position of being her mother’s sexual rival). Of these, really, the genetic factor (especially in a time of relatively reliable birth control) is the least of the problems with incest; the other two weigh more strongly. So stepparent/stepchild incest should be treated the same as any other parent/child incest.

    So, then we get to the issue of coercion in adult/adult relationships:

    But here we are talking about adults. People to whom society has granted full agency. People who can drink, smoke, join the armed forces, buy a car, etc.

    That kind of absolutism about adult consent is way unreasonable. Psychiatrist can have coercive and exploitive relationships with patients, without ever needing to resort to actual force. Stepparents can “groom” their stepchildren for sex, and make their move the instant the child reaches his or her 18th (or, in many states, 16th) birthday, a pattern I think far more likely, in a world where “consensual” adult stepparent/stepchild incest were legal, than the hypothetical where the marriage took place long after both were adults. It’s entirely possible for sex in certain relationships to be involuntary, absent any weapons or physical struggle, even when both parties are long since adults.

    And being subjected to coerced sex is fundamentally a far greater wrong than being deprived of one of your many opportunities for consensual sex. To allow sex in relationships where it is nornally and routinely experienced as coerced by one party, on the grounds that somehow, somewhere, there just might be a stepchild (or a psychiatric patient) who is experiencing the sex as happily consensual, is to carry your suspicion of what the government should be allowed to do to absurd extremes.

  40. Mnemosyne
    March 26, 2007 at 12:10 pm

    There’s no way on earth what this guy is in jail for ’sleeping with someone while being married to her mum’ should be a crime.

    Actually, this guy is in jail for RAPE, which his stepdaughter had immediately reported to the police as rape. She then refused to testify, probably because of pressure from her mother and/or other relatives.

    This is the coercion part of it that a lot of people aren’t talking about: you can be coerced by people other than those immediately involved in having sex. There are lots and lots (and lots) of cases where someone makes a rape accusation against a family member that they then recant because of pressure from the rest of the family.

    If we were complaining because, say, Woody Allen was being prosecuted under this law because he married his former stepdaughter, that would be one thing. But the people on this thread who are arguing against this law are arguing in favor of a rapist. Which makes you a little suspect, to say the least.

  41. Brad Jackson
    March 26, 2007 at 1:36 pm

    I’m not arguing in favor of the rapist at all. I’m simply arguing that there are two separate things going one here: one is our severely broken way of dealing with rape, the other *utterly*separate* issue is the incest issue.

    That the US, and pretty much every other nation on Earth, has a truly awful way of dealing with rape is a crime and must be fixed immediately. That it is even possible, for example, for the defense to bring up what the victim was wearing is evidence that our legislative branch is a bunch of Neanderthal mysognyists. What stuns me is that anyone, male or female, keeps voting for the assholes who pass laws like that.

    But the fact that the rape victim was related to her rapist, while significant, shouldn’t be taken as evidence that the state has any need to ban incest.

    To take a less charged example, how about utterly voluntary homosexual incest between two adult brothers (or sisters)? It still has that “ick” factor, but I can’t see why the state should be involved.

    It may not be mentally healthy, but again, it is not the state’s job to force us to be mentally healthy.

    I’m a liberal, that means I’m opposed to the state stomping on our individual liberties, and I’m in favor of the state protecting the weak. Thus my support of rape laws, my belief that the government should fund rape crisis centers, offer support to the victims of domestic violence, etc. Thus also my belief that the state should not force people to halt consensual activities that don’t harm third parties.

    To make a comparison: I’m in favor of banning smoking in public and semi-public places (ie: bars, parks, restaurants, etc). But I’m not in favor of the goverment banning tobacco (in fact, I’m in favor of legalizing marijuana and many other currently illegal drugs).

    I’m in favor of the government putting rapists in prison (ideally, for life, no parole). But I’m not in favor of the goverment saying “this or that consensual sex act is illegal”.

    It isn’t perfect. People will make stupid choices, I’m opposed to drug use (in fact, I’m opposed to people drinking to excess, and the fact that our society tends not to think of alchohol as a drug), but I don’t think we should criminalize drug use. I’ll urge people not to use any recreational drug, legal or otherwise, and I’ll urge people not to have sex with their siblings; for the same reasons, I think both activities aren’t all that healthy. But the government’s job is not to force us to make healthy decisions.

  42. March 26, 2007 at 2:01 pm

    But I’m not in favor of the goverment saying “this or that consensual sex act is illegal”.

    It’s the ‘consensual’ part where the problem comes in, Brad.

  43. March 26, 2007 at 3:28 pm

    But the people on this thread who are arguing against this law are arguing in favor of a rapist. Which makes you a little suspect, to say the least.

    Um, generalize much, Mnemosyne? Obviously, the man in this particular case does not deserve anyone’s sympathy, but an argument that this law is overbroad and may criminalize truly consensual sex between adults is not anywhere in the vicinity of a defense of rape.

  44. Brad Jackson
    March 26, 2007 at 8:12 pm

    mythago, if it isn’t consensual then its rape and should be handled by those laws.

    I’m just rejecting the idea that incest is, by definition, coerced. There is, no argument at all, a huge potential for coercion there. I’m not disputing that. But the right has a habit of taking a kilometer when we give a centimeter on the subject of sex, and they are always looking for any possible opening to use in an effort to squash consensual sex rights.

    When it comes to children, I say play it as safe as possible. Its too easy for a legal minor, and a person with quite limited life experience, to find themselves sexually victimized. As a society we have declared that adults can’t have sex with children, and that’s a good thing.

    I’ve seen the arguments from earlier posters, and I can see their point to an extent. But after reading all that it still seems like a very bad idea to let the government say “nope, you are an adult, but this sexual relationship is too dangerous for you, us Wise Men will decide who you can have sex with”.

    If you want to propose an age of consent to incest of, say, 21, I’d support that, but simply having the government make that decision for *adults* seems wrong.

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