Evaluation of Incest Laws: Why laws criminalizing incestuous relationships are unconstitutional.

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I. Introduction 1

II. American Laws 2

III. Three Main Reason 2 a. Protection From Harm b. Increased Birth Defects c. Moral Taboo

IV. Marriage Equality #

V. Conclusion #

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Madeleine Henry UNIV 200: Inquiry and Craft of Argument October 28, 2018

Evaluation of Incest Laws 1

I. Introduction

Jacob and Allison, both twenty five years old, met on a dating site. They fell in love shortly after their first date. Since then, they got married and bought their first house in Wisconsin. They were planning on starting a family so they both went to their doctor to get blood work done to check on their health. Everything changes once they get their results back; but before I say what happens I ask you. Does it make sense if the state told this happy couple that their marriage is annulled and if they continue to see each other intimately they will be penalized, possibly face jail time? Jacob and Allison both grew up in non-traditional households. Jacob was raised in a single-parent house and his mother used a sperm bank donor’s sperm to conceive Jacob. Allison grew up with two mothers who also used a sperm bank donor’s sperm to conceive Alison.

Neither, Allison or Jacob, had never crossed paths with each other when they met on their first date. So how could they have known that they were brother and sister? That's what the blood test came back with, Jacob and Allison were biologically sister and brother.

This paper analyzes why laws criminalizing incestuous relationships are unconstitutional.

Jacob and Allison's case, while being hypothetical, is an increasing concern in the new world of test tube families.1 This paper evaluates the current American laws criminalizing incest.

Scrutinizing why we have laws that criminalize consensual sexual behavior among two consenting adults. It examines various possible incestuous relationships including step family, adopted family, individuals who grew up with each other, and ones who didn't meet till they were older.

There are three main reasons why people believe that laws criminalizing incestuous relationships are necessary: to protect children from sexual abuse by relatives, the increase risk of having children with disabilities, and the morel taboo that incest carries with it. This paper Evaluation of Incest Laws 1 discredits arguments against consanguinity and exposes how the current American laws are not only redundant, but discriminatory towards marriage equality acts.

II. American Law

In America, incestuous marriage is illegal in all states. However, in Rhode Island and New

Jersey incestuous relationships are not criminalized. There is considerable variation of the legal definition of incest among the states and its application. For example, Arizona, Illinois, Indiana,

Utah, and Wisconsin allows first cousin marriage only if the couple is infertile. In Maine, first cousin marriage is allowed if the couple receives genetic counseling prior to marriage. Another variation of laws concerning first cousin marriage is in North Carolina, where if it is not between double first cousins then marriage is permitted.2 The discrepancy between states laws on first cousin marriage can also be seen in other incestuous relationships: adopted relatives, step relatives, half-blood relatives, in-law relatives, etc. The description of the incestuous act also varies between states weather it was through sexual contact, sexual intercourse, or sexual conduct.

III. The Three Main Reasons

a. Protection From Harm

After a Georgia Supreme Court case, Justice Sears commented on the upholding of incest laws saying that “to maintain the stability of the family hierarchy by protecting young family members from exploitation by older family members in position of authority, and by reducing the competition and jealous friction among family members.” The argument that incest laws protect children from the “sexual over-reaching by more powerful relatives”2 is under inclusive.

Incest laws do not impose sanctions on non-relative adults in the household who are in a position of authority and supervision.3 As well, there already are American laws that criminalize child Evaluation of Incest Laws 1 abuse, molestation, and rape cases. These laws do not discriminate the relationship between the attacker and the victim.4 Incest laws not only fail at their purpose of protecting the family unit but are redundant and inferior to existing laws.5

The avoidance response is another example on why laws criminalizing incestuous relationships are redundant. The avoidance response also referred to as the Westermarck effect shows “that intimate childhood association appears to suppress or inhibit sexual drive”.6

Meaning that people who live together during the first few years of their life become desensitized to sexual attraction towards the ones they live with. This time is called the critical period and is approximately estimated to be between birth to the age of six. This avoidance response has no biological kinship related to it.7 it is factor of co-residence from a young age.

With a habitual avoidance that suppress sexual drive with people one grows up with and

American statues that criminalize child abuse, molestation, and rape. Incest laws are shown to be redundant and unjustifiable.

b. Increased Birth Defects

Many people believe that consanguineous mating will result in abnormality of offspring.

This is because inbreeding can reduce the genetic diversity of a population creating higher chances of a recessive gene trait in the child. Even though this is not a completely false statement, it is not a likely probability in first generation inbreeding. Carolyn Bratt, a professor at the University of Kentucky, wrote that “Mating between consanguineous relatives do not cause genetic defects in the offspring. Such mating merely increases the probability of the homozygosity for a recessive gene trait in the offspring.”

Hypothetically, if there was an increased risk of genetic abnormality in consanguineous mating; that still wouldn't bring a genetic justification for the incest statutes. This is because “If Evaluation of Incest Laws 1 we can justify imprisoning consenting adults for choosing partners who will increase the risk of having children with disabilities, then we set a troubling precedent for all couples who may pass on genetic disorders to their children.”8

Another shortcoming in this argument can be shown with statistics from prenatal screening test. For example, in Iceland starting in the early 2000’s, around 85% of women choose to have a prenatal screening test. Almost 100% who received a positive test for a child with Down syndrome terminated their pregnancy. If statistics like this are replicated in the

United States it is another way proving that the argument of heightened birth defects is invalid.9

c. Increased Birth Defects

Why has the thought of incestuous relationships become a way to provoke a visceral disgust in many people.10 Is it because it is threat to the “ideal family” or that it’s just a known fact that it’s an immoral act. The incest taboo is deeply rooted in America, but at one point so was the taboo of miscegenation and homosexuality. And “if the state can prohibit conduct simply because the public, when viewing it, is repulsed; then anti-miscegenation laws would still be a permissible exercise in the legal enforcement of morality.”11 A deeper analysis of the parallelism of incestuous relations with homosexuality and miscegenation decriminalization is discussed in part three Marriage Equality. When evaluating the possibility of incestuous relationships being decriminalized, many people see this as the erosion of the “ideal family” and that it will have negative consequence on children. This concern is subjective because “it is not convincing to argue that a traditional family enhances children's well-being, nor that a nontraditional family diminishes it in a significant way.”12

IV. Marriage Equality

V. Conclusion Evaluation of Incest Laws 1

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1 Naomi Chan, “Accidental Incest: Drawing the Line–or the Curtain?-For Reproductive Technology.” Harvard Journal of Law and Gender, 2009. 2 Courtney Megan Cahill, “Same-Sex Marriage, Slippery Slope Rhetoric, and the Politics of Disgust: A Critical Perspective on Contemporary Family Discourse and the Incest Taboo”, 2005. 3 Chistine McNiece Metteer, “Some “Incest” Is Harmless Incest: Determining the Fundamental Right to Marry of Adults Related by Affinity Without Resorting to State Incest Statutes” Southwestern University, 2000. 4 Carolyn S Bratt, “Insect Statues and the Fundamental Right of Marriage: Is Oedipus Free to Marry?” University of Kentucky, 1984. 5 Shepher, Joseph. “Incest: A Biosocial View: The Journal of Nervous and Mental Disease.” LWW, Oxford University. 6 Justine McCabe, “FBD Marriage: Further Support for the Westermarck Hypothesis of the Incest Taboo?” Anthropology & Education Quarterly, Wiley/Blackwell (10.1111), 19 Oct. 2009. 7 Debra Lieberman, “Does Morality Have a Biological Basis? An Empirical Test of the Factors Governing Moral Sentiments Relating to Incest.” Proceedings of the Royal Society of London B: Biological Sciences, The Royal Society, 22 Apr. 2003. 8 C. Farrelly, “The Case for Re-Thinking Incest Laws” Queen’s University, Kingston, Canada 9 Julian Quinones Arijeta Lajka, ‘What Kind of Society Do You Want to Live in?: Inside the Country Where Down Syndrome Is Disappearing.” CBS News, CBS Interactive, 14 Aug. 2017. 10 Cahill, “Same-Sex Marriage, Slippery Slope Rhetoric, and the Politics of Disgust”, 2005. 11 Bratt, “Insect Statues and the Fundamental Right of Marriage: Is Oedipus Free to Marry?”, 1984. 12 Tatjana Hörnle, “Consensual Adult Incest.” New Criminal Law Review, University of California Press, 1 Jan. 2014

Evaluation of Incest Laws 1

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