Please do not remove this page Vice is nice but incest is best: the problem of a moral taboo. Bergelson, Vera https://scholarship.libraries.rutgers.edu/discovery/delivery/01RUT_INST:ResearchRepository/12652769280004646?l#13652769270004646 Bergelson, V. (2013). Vice is nice but incest is best: the problem of a moral taboo. In Criminal law and philosophy (Vol. 7, Issue 1, pp. 43–59). Springer. https://doi.org/10.1007/s11572-012-9158-9 Document Version: Accepted Manuscript (AM) Published Version: https://doi.org/10.1007/s11572-012-9158-9 This work is protected by copyright. You are free to use this resource, with proper attribution, for research and educational purposes. Other uses, such as reproduction or publication, may require the permission of the copyright holder. Downloaded On 2021/09/25 01:37:23 -0400 VICE IS NICE BUT INCEST IS BEST1: THE PROBLEM OF A MORAL TABOO. Vera Bergelson* And if a man shall take his sister, his father's daughter, or his mother's daughter, and see her nakedness, and she see his nakedness; it is a wicked thing; and they shall be cut off in the sight of their people: he hath uncovered his sister's nakedness; he shall bear his iniquity. Leviticus, Ch. 20, §17. Introduction Abstract Incest is a crime in most societies. In the United States, incest is punishable in almost every state with sentences going as far as twenty and thirty years in prison, and even a life sentence. Yet the reasons traditionally proffered in justification of criminalization of incest— respecting religion and universal tradition; avoiding genetic abnormalities; protecting the family unit; preventing sexual abuse and sexual imposition; and precluding immorality—at a close examination, reveal their under- and over-inclusiveness, inconsistency or outright inadequacy. It appears that the true reason behind the long history of the incest laws is the feeling of repulsion and disgust this tabooed practice tends to evoke in the majority of population. However, in the absence of wrongdoing, neither a historic taboo nor the sense of repulsion and disgust legitimizes criminalization of an act. Keywords Incest - Vice – Crime – Immorality - Taboo – Harm – Wrongdoing Let’s start with the story of Allen and Pat Muth—lovers, partners, and parents of four young children—who in 1997 were convicted of having sex with each other. Their sexual relationship was consensual, and both Allen and Pat far exceeded the age of consent: he was 45, and she was 30. * Professor of Law, Robert E. Knowlton Scholar, Rutgers School of Law-Newark. I would like to thank the deputy director of Rutgers Law Library Paul Axel-Lute and my research assistant Daniel Derasmo for their help in researching this project. I am also grateful to my colleagues Stuart Green, Adil Haque, Saul Mendlovitz, and George Thomas, as well as the participants of the Vice and Crime workshop at Rutgers School of Law (Newark), 2011, particularly my commentator Luis Chiesa, for their thoughtful and challenging comments. 1 The origin of the phrase is not entirely clear. According to one source, it was first published in Greene (1964). Yet, arguably, Greene did not write the line but merely reported it. See http://en.wikipedia.org/wiki/Wikipedia:Reference_desk/Archives/Humanities/2010_August_3. Alternatively, the phrase comes from Reisner and Wechsler (1974). 1 Electronic copy available at: https://ssrn.com/abstract=3228796 Nevertheless, Judge David Hansher treated them as hardened and dangerous criminals: ''I believe severe punishment is required in this case," he said at Allen’s and Pat’s sentencing. ''I think they have to be separated. It's the only way to prevent them from having intercourse in the future.” And so, Allen was sentenced to eight years, and Pat to five, in maximum-security prisons, 25 miles apart.2 The harsh punishment caused some people to question whether it was warranted. A Boston Globe columnist wrote: If this had happened to a gay couple, the case would have become a cause celebre. Hard time as punishment for a private, consensual, adult relationship? Activists would have been outraged. Editorial pages would have thundered.3 But no such outrage followed in this case. In the eyes of most, Allen and Pat’s relationship was not only illicit but also sinful, impermissible, and outright disgusting: Allen and Pat were brother and sister, and their crime—incest—was punishable by up to twelve-and-a-half years’ imprisonment under the law of their state.4 In an earlier, civil, proceeding, Allen and Pat were stripped off their parental rights, and their children were placed for adoption.5 It made no difference under the law that Allen and Pat only met after Pat turned 18 (she had been raised in foster care) or that they were deeply attached to each other and their children. Incest has been, and still is, banned in most societies. In the United States, it is criminalized in all states but one (Rhode Island). Some states authorize twenty and thirty years’ 2 Jacoby (2005). 3 Id. 4 See Wis. Stat. § 944.06 (2011) Incest (“Whoever marries or has nonmarital sexual intercourse. with a person he or she knows is a blood relative and such relative is in fact related in a degree within which the marriage of the parties is prohibited by the law of this state is guilty of a Class F felony.”); 939.50(3) (“For a Class F felony, a fine not to exceed 25,000 or imprisonment not to exceed 12 years and 6 months, or both.”). 5 State v. Allen M., 571 N. W. 2d 872, 873 (Wis. Ct. App. 1997) (accepting the state’s view that the couple’s incestuous ''fundamentally disordered" lifestyle made them unfit for parenthood by definition). 2 Electronic copy available at: https://ssrn.com/abstract=3228796 sentences for this offense, with three states (Idaho, Montana, and Nevada) going as far as a life sentence.6 According to a typical state statute, “a person commits incest if he marries or engages in sexual intercourse with a person he knows to be, either legitimately or illegitimately,” a close relative of his.7 Who is considered to be a close relative varies significantly from jurisdiction to jurisdiction. For instance, all states that criminalize incest include in this group biological parents, children (as well as other blood ancestors and descendants), siblings, and half-siblings. Most states also “blacklist” aunts, uncles, nephews, and nieces. But only a few states ban sex between first cousins. On the other hand, many states extend the definition of incest to cover non-biological relatives, such as step-parents and step-children, and adoptive parents and adopted children.8 The Model Penal Code includes ancestors, descendants and siblings of full and half blood, while leaving the question about uncles, aunts, nephews and nieces of full and half blood open for states to decide.9 Should incest be a crime? Naturally, this question only applies to sexual relationships between competent and freely consenting adults. Nonconsensual sex, as well as sex with those 6 See, e.g., ID Code § 18-6602 (2011) (“Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the state prison for a term not to exceed life.”); Nev. Rev. Stat. Ann. § 201.180 (2011) (providing for the maximum sentence of life imprisonment); Mont. Code Ann. § 45-5-507 (2010) (same). See also O.C.G.A. § 16-6-22 (2011) (“A person convicted of the offense of incest shall be punished by imprisonment for not less than ten nor more than 30 years; provided, however, that any person convicted of the offense of incest under this subsection with a child under the age of 14 years shall be punished by imprisonment for not less than 25 nor more than 50 years.”); ALM GL ch. 272, § 17 (2010) (authorizing 20 years’ imprisonment). 7 See, e.g., Ala. Code 1975 § 13A-13-3. 8 See McDonnell (2004) at 348-49 (assembling state laws criminalizing incest). More relaxed laws are, for example, in Ohio (only parental figures are criminally punished for incest) and New Jersey (incest is punishable only if a participant is less than 18 years old). See Collins et al. (2008) at 1344-45. 9 Model Penal Code (“MPC”), § 230.2 (Official Draft and Revised Comments 1980). 3 Electronic copy available at: https://ssrn.com/abstract=3228796 who are not competent enough to give consent (e.g., children or severely mentally retarded), is and should be criminalized just like any other violation of people’s physical autonomy. But even with respect to people like Allen and Pat Muth the answer is far from being obvious. My goal in this paper is to consider the traditional rationales for criminalization of incest, try to go beyond them and uncover what makes this offence so special in the eyes of society, and in the end suggest an answer to the question posed by Allen and Pat’s case. The core rationales almost unanimously cited by courts, legislatures, drafters of the MPC, and numerous academics include: (i) religion and universal tradition; (ii) genetics; (iii) protection of the family unit; (iv) prevention of sexual abuse and sexual imposition; and (v) precluding immorality. 1. Religion and the Universal Tradition. It has been suggested that the incest law is a mechanism of enforcing a religious tenet by criminal sanctions. The Bible defines and proscribes sexual relations between close relatives, and, in England, up until the early 20th century, incest was almost exclusively adjudicated by the church courts.