How to Criminalize Incest

Abstract

This chapter, part of a larger book-length project titled Criminalizing Sex--A Unified Theory, offers a “normative reconstruction” of the law of incest, consisting of four parts: Part I looks at the concept of incest as a complex cultural taboo, one which has attracted the attention of a wide range of social scientists and theorists. Part II considers the striking multiplicity of ways in which incest has been dealt with across systems of criminal law, including the fact that a broad swath of “civilian” jurisdictions do not treat it as a crime at all. Part III considers instances in which adults have sex with closely related juveniles, arguing (on “fair labeling” grounds) that such cases should be treated as an aggravated form of statutory rape, rather than as a separate, free-standing offense of “juvenile incest.” Part IV looks at incestuous relationships between adults. In most such cases, it is argued, criminal sanctions are unjustifiable unless lack of consent can specifically be proved. Two possible exceptions exist, however, where the adult relationship is a continuation of one that began when one of the parties was a minor, or where the two parties are in a hierarchical relationship, such as that between parent and child. In such cases, lack of consent could be presumed, subject to rebuttal evidence that consent was genuinely given.