Journal of Criminal Law and Criminology Volume 55 Article 2 Issue 3 September Fall 1964 The rC ime of Incest Graham Hughes Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Graham Hughes, The rC ime of Incest, 55 J. Crim. L. Criminology & Police Sci. 322 (1964) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE CRIME OF INCEST GRAHAM HUGHES Professor Hughes is Senior Lecturer in Law in the University College of Wales, Aberystwyth. He is presently Visiting Professor of Law (1964-1965) in New York University, and for 1963-1964 he was Visiting Professor of Law in Stanford University. Professor Hughes studied law at the University of Cambridge, where he received the B.A. degree in 1948 and the M.A. degree in 1951. He also received the LL.B. degree from the University of Wales in 1950 and the LL.M. degree from New York Uni- versity in 1960. The author has taught law in Britain, at the University of Wales and the University of Hull, and in the United States, at Yale University as well as New York University and Stanford University. How do the laws of England, the United States, and other countries compare in their treatment of the crime of incest? How serious is the incidence of the crime? How can the genesis of the incest taboo be explained? What are the real harms produced by the crime? And, can the existing prohibi- tions regarding incest be defended on utilitarian grounds? Considering these and related questions, Professor Hughes critically analyses the existing law and proposes a "Model Incest Prohibition" designed to encompass the socially harmful aspects of incest without also comprising those relation- ships with which he finds the criminal law should not be concerned.-EDrrox. In jurisprudential writing in the last few years to have sexual intercourse with a woman whom he there has been a continuing debate over the knows to be his granddaughter, daughter, sister, or relationship between morality and the criminal mother. The section stipulates that the relationship law.' One of the topics that has come to be discus- need not be through lawful wedlock and that sister sed is whether some of the existing prohibitions of shall include half-sister. It may be noted that there the criminal law can be defended on utilitarian is no mention of the unce-niece relationship nor grounds or whether they reflect only deep feelings of the stepfather and stepdaughter relationship. in society of repugnancy which may not be capable Under section 11 it is an offense for a woman, if of utilitarian justification. A criminal offense often over the age of 16, to permit a man in the group of mentioned in this connection is that of incest, and relationships previously listed in section 10 to have it may therefore be worthwhile to examine the sexual intercourse with her by her consent. A existing law of incest as a crime in the light of in- curious feature of this definition is that no offense of formed opinion on the effects of incest behavior as incest occurs as between grandson and grand- expressed in the writings of sociologists, anthro- mother, though it does between grandfather and pologists, psychologists, and psychiatrists. granddaughter. Under section 38 of the statute, if a man is convicted of incest with a girl under the THE STATE OF ='r LAW age of 21 (or of an attempt to commit the offense), All common-law jurisdictions contain criminal the court may divest him of all authority over her. prohibitions of incestuous intercourse. In England Under this English statute a prosecution for the offense was originally in the jurisdiction of the incest can be commenced only by the Director of ecclesiastical courts and so has no history at com- Public Prosecutions or with the sanction of the mon law. It was given a statutory form in the Attorney General. Neither incest nor attempted Punishment of Incest Act, 1908, and is now to be incest is triable at Quarter Sessions but must be found in the consolidating enactment, the Sexual sent to the High Court. The maximum sentence for Offences Act, 1956.2 Section 10 of this statute incest is generally seven years, but is life imprison- provides that it shall be a misdemeanor for a man ment in the case of incest with a girl under 13. The general maximum I DvL , Tim Eir-oacxmENr or MoRAss (1959); punishment for attempted incest Rostow, The Enforcement of Morals, 1960 CAmm. L.J. is two years, but if the girl is under 13. the maxi- 174; Hughes, Morals and the Criminal Law, 71 YALE mum for attempt has been raised to seven years L.J. 662 (1962); HART, LAW, LIBERTY AND MORALITY 3 (1963). by the Indecency with Children Act of 1960. 2 4 & 5 Eliz. 2, c. 69. 3 8 & 9 Eliz. 2, c. 33. 1964] THE CRIME OF INCEST In the United States incest is always a statutory In some states intermarriage is a sufficient actus offense.4 Sharing the English background of the reus to constitute the crime of incest without punishment for incest being originally entrusted to necessity for proof of actual sexual intercourse 4 ecclesiastical authorities, the crime never existed (e.g., California).1 Apart from this possibility, at common law in the United States and was proof of actual sexual intercourse (i.e., penetration created by statute at varying times in the different though not necessarily emission) is required, and states. In Utah, where the Mormon community did proof of lesser acts of sexual gratification is not 5 not disapprove of incestuous relationships, incest sufficient.' Again, in some states proof of mutual did not become a criminal offense until a statute of assent is required to constitute incest, so that 1892. 5 incest and rape are by definition mutually exclusive 6 The concept of incest as a crime in United States (e.g., Missouri).' Other jurisdictions follow the jurisdictions is generally much wider than in English rule that the consent of the female is not England. All the states add the grandmother- necessary and that incest and rape may overlap grandson and the uncle-niece and aunt-nephew (e.g., Illinois)." Under most statutes knowledge of categories to the list of relationships as found in the relationship on the part of the accused is an 8 England, and almost half the states include first essential element of the offense, but in some states cousins within the sphere of the crime.6 (In Eng- knowledge is not necessary and incest thus becomes 9 land marriage between first cousins is legal and in a crime of strict liability (e.g. Florida). practice quite frequent.) In some states, although In all states incest is a felony or, at the least, a marriage between first cousins is prohibited, their high misdemeanor. The position with respect to cohabitation does not amount to incest (e.g., punishment has been summarized by Weinberg: Louisiana).7 In a number of states relationship by "Though most states have one penalty for incest affinity (i.e., through marriage) is sufficient to offenders, regardless of nearness or distance of ground a prosecution for incest 8 So sexual inter- the kin, some states have two penalties. Colo- course between stepfather and stepdaughter rado, Nebraska and New Jersey impose a heavier (Georgia), 9 between stepmother and stepson sentence upon the father than upon other male (Indiana),10 and even between brother-in-law and incest offenders. In North Carolina male offend- sister-in-law (Ohio)" may amount to incest. The ers who are in the immediate family are charged relationship must exist at the time of the inter- with a felony and are liable to imprisonment for course, though in Alabama it has been held that not more than fifteen years. Male offenders in intercourse between a stepfather and stepdaughter uncle-niece and aunt-nephew relations are amounts to incest even after the death of the charged with a misdemeanor and are liable to a latter's mother.n In 1944 it was held in Mississippi far milder penalty which is subject to the discre- that an adopted child was not a daughter within tion of the court. In West Virginia, cousin mar- the meaning of the incest statute. 3 There was ap- riages are annulled but the participants are not parently no previous authority to be found on this punished. point. "In most states the male only is punished for incest but in some states both male and female 4 See MUELLER, LEGAL REGULATION OF SEXUAL two distinct statutes CoNDuCr 44 (1961); WEInuERG, INCEST BEHAVIOR 26- are punished. In Tennessee 28 (1955). pertain to male and female offenders; the woman 6 Utah Laws, ch. 7, §4 (1892). 6 Rhode Island specifically exempts Jews, who are is an accomplice if she allows the act to continue permitted to marry within the degrees allowed by their for several months. In Texas the daughter is an religion. R.I. GEN. LAWS ch. 415, §4 (1938). accomplice if she cooperates. In Oregon the fe- 'LA. Civ. CODE tit. 4, ch. 2, §95 (1932); LA. CRIM. CODE §740-78 (1943); State v. Couvillion, 42 So. 431, male must consent or the man is charged with 117 La. 935 (1906).