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.