Incest

Intentar explicar el origen, evolución y violación de un tabú considerado casi universal en las sociedades humanas no es una empresa sencilla dado su carácter polifacético; sin embargo, ello no ha impedido que en muchos ordenamientos jurídicos sea empleado ese sentimiento de repulsión o asco como un elemento para criminalizar una relación sexual aparentemente ofensiva. El artículo sostiene que el matrimonio es la única forma en que las prácticas sexuales entre parientes en condición de igualdad pueden tener lugar. Para ello: (...) I. Presentaremos algunas teorías que ofrecen respuestas a las incógnitas en torno al tabú, II. Veremos por qué para Kant el incesto es un crimina carnis contra naturam en un caso, y secundum naturam en el otro. III. Examinaremos qué es el matrimonio para el filósofo y por qué constituye un ideal regulativo-práctico de las relaciones sexuales humanas. Por último, consideramos argumentos en contra de esta propuesta. (shrink)

Incest is a crime in most societies. In the United States, incest is punishable in almost every state with sentences going as far as 20 and 30 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. (shrink)

I contend that there are strong moral reasons for most adult family members to avoid having sex with one another; indeed, I argue that even among consenting adults, incestuous sex is usually wrong. The argument is simple. Absent compelling reasons, it's wrong to take a significant risk with something that's extremely valuable. But having sex with a family member takes a significant risk with something extremely valuable—namely, a family relationship. And since compelling reasons for taking such a risk are very (...) hard to come by, it follows that incest is usually wrong. (shrink)

The recent case of German siblings Patrick Stübing and his sister Susan Karolewski has reignited debate over the criminalisation of sexual intercourse among consanguine descendants. The primary justification for criminalising incest is the purported increased risk of genetic disabilities among offspring, but is criminalising sexual intercourse an empirically sound and proportionate response to this increased risk? To answer this question we must consider the specifics of the harm in question and the magnitude of the harms of the intervention. The example (...) of incest law has important implications for liberal societies. If 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. (shrink)

Westermarck proposed that humans have an incest avoidance instinct, triggered by frequent intimate contact with family members during the first several years of life. Westermarck reasons that familial incest will tend to produce less fit offspring, those humans without instinctive incest avoidance would hence have tended to die off and those with the avoidance instinct would have produced more viable offspring, and hence familial incest would be, as indeed it is, universally and instinctively avoided . Victorian Westermarck claimed this as (...) a human adaptation. Evolutionary psychologists have generalized these claims to Pleistocene humans and their ancestors, to primates, and indeed to animals generally. Yet there is surprisingly little evidence for these claims of universal instinctive avoidance. Considerable inbreeding appears among large, territorial primates and may have been so with early humans and with their ancestors. While there is little reliable non-anecdotal evidence about incestuous behavior or the lack of it among humans, what little there is does not fit well with the Westermarck thesis. (shrink)

In this article I challenge two common arguments against incest: the genetics argument (that incest is immoral because it might lead to the conception of a genetically deformed child), and the family argument (that incest is immoral because it undermines the family, the emotional center for the individual). These arguments, I contend, commit us to condemning not only incest, but also a wide range ofbehaviors that we currently permit. I thus present the reader with a dilemma: on pain of inconsistency, (...) we must either accept certain forms of incest in order to maintain these other moral judgments, or reject these judgments in order to maintain our condemnation ofincest. The reader is free to decide which alternative is preferable, but I suggest that the former is a much less radical shift in our moral system as a whole. (shrink)

It is argued that traditional functional explanations of the incest taboo do not sufficiently supply causal conditions. It is widely acknowledged that the incest taboo, although universal among human societies, is largely a feature of human behavior. Husserl's investigations of intentionality are introduced to supply the particularly human element by which the taboo may be understood. So as to illumine the contrast between the conflicting intentionalities, a classical Aristotelian contrast between eros and parent/ child philia is drawn. Parent/child philia and (...) eros, although both requisite for the survival of the species, are shown to be crosspurposeful in several ways. Husserl's understanding of 'negation,' as it applies to affective and practical intentionalities, is reconsidered. It is thereby explained how parental/child affection and erotic love, are 'incompossible' and not only conflict, but 'nullify' and 'cancel out' each other, generating the 'taboo'. (shrink)

Here Gellius, also the target of poems 74, 80, 89, 90, 91 and 116, is accused of incest with his mother, sister, and aunt. This accusation is coupled with the only extended mythological reference to be found in the group of short Catullan epigrams 69–116:2 not even Tethys or Oceanus can wash out Gellius' crimes. This notion that large bodies of water are unable to wash away the stain of crime is of course a topos going back to Greek tragedy, (...) but the individual naming of the two sea-deities seems to make a point—a literary point which is relevant to the invective of the poem. (shrink)

Readers of Plautus’ Poenulus are struck by the generally ‘sympathetic’ portrayal of the title character Hanno, a portrayal somewhat surprising to us since the play was produced shortly after the Second Punic War.1 Contrary to what we might expect, Hanno the Carthaginian is neither villain nor scapegoat, and he even exhibits the Roman virtue of pietas.2 However, Hanno's portrayal is not wholly positive, for Plautus delineates his character principally by endowing him with the negative stereotypes of Punic physiognomy, dress, speech, (...) and behaviour familiar to his Roman audience.3 Hanno's Punic ethnicity is not merely an incidental matter of fact, as it is with his relative Agorastocles, but an essential part of his characterization that serves to isolate him from all the other characters of the palliata. While some of Hanno's vices—deceit, licentiousness, and effeminacy—are not exclusive to Carthaginians and are shared by other Greek characters in the palliata, there is one vice peculiar to Hanno. In this paper I argue that Plautus ridicules Hanno through arecurrent insinuation of incest. The insinuation of incest has not, to my knowledge, been noted previously, but our text does imply it in three conspicuous places. (shrink)

This paper is based on two presentations under the auspices of thf Edinburgh Medical Group in 1976. Dr Noble and Professor Mason, explore the incidence of incest and society's attitudes to it from legal, anthropological, medical and social viewpoints. They place this in a world context by looking at the universal prohibition of incest and the theories related to that taboo. In conclusion, they suggest that there seem to be sufficient sensible grounds on which to base a reappraisal of attitudes (...) to incest. Their conclusions are in turn appraised by brief commentaries from a moral philospher and a psychiatrist. (shrink)

Incest taboos should be seen as involving non?sexual objections to sexual relations, that is, objections based on who people are in relation to each other, rather than their activities. What is at stake is brought out by considering certain objections to father?daughter incest and certain features of taboos. The objections that matter do not depend on social ties and distinctions having a biological basis, but there is nonetheless a biological element in incest taboos. To see it, one must look to (...) the nature of the Oedipus complex, and to the conditions for the development of the individual and of society. There may be prohibitions which are necessary (to morality, to society, to humanity) even though they may not be justifiable within a narrower conception (e.g. utilitarian) of morality and justification. And so taboos which are universal (occur, in one form or another, in every society), and absolute (allow no questioning), and impose strict liability (allow no excuse), may not be irrational: they may mark the boundaries that shape a way of life. (shrink)

If a state with liberal political and justificatory commitments extends benefits of various kinds to persons forming families, what qualifications may such a state place on the right to access to those benefits? I will make two assumptions for the purposes of this paper. The first is the political and justificatory terrain of some form of political or otherwise non-perfectionist liberalism. The assumption is that we are considering the resources and limitations of a community of persons who accept moral pluralism (...) (if not a specific doctrine like the "burdens of judgment"), some priority for individual freedom, and the obligation to justify public coercion and exclusion in terms accessible and fair to all members of morally and culturally diverse society. The second is that it is justified for a liberal state to recognize some forms of domestic partnerships or families in the first place and extend further benefits to them such as tax credits or laws extending (or facilitating the extension of) medical or social insurance. It is, of course, possible to imagine the argument that the liberal state gets out of the marriage business by getting out of it entirely - by extending no recognition or positive rights to families whatsoever beyond negative non-interference rights. I am interested in the dilemma of a society broadly like existing liberal ones which is committed both to subsidizing families and also to justificatory neutrality (expressed in American constitutional legal terms as the requirement of providing a "rational basis" for unequal treatment). Given these assumptions, I believe that the most justifiable policy on liberal grounds is not the institution of "marriage" increasingly open to new constituent relationships but rather a status of "registered domestic partnership" which fulfills the social and moral aims behind subsidizing the family but is entirely neutral not only to the gender or even to the numbers of the partners, but also to the affective and emotional content of domestic life and the purposes behind contracting domestic partnerships. So is there a right to polygamy and incestuous marriage? There is not a specific right to either and thus there is no a priori reason why some restrictions or even prohibitions on them might not be justified, but the same is true for every specific act where a general right to the freedom exists. I argue in this paper, however, that the arguments compatible with public reason for prohibiting them outright, or even for excluding them from the permissible types of legally registered partnerships, are quite weak. I argue that objections to polygamy from (1) female autonomy, (2) damage to children, (3) fairness in the marital market, and (4) the unfair burdening of society are serious and worth refuting, but do not establish a victorious case against multi-member relationships. As to incest, there are two separate questions. The first is whether the new institution of "registered domestic partnerships" should be open to them. The answer to that, given the state's lack of interest in citizens' reasons for forming partnerships and in what they do whilst being registered in one, is clearly "yes." The second is whether, entirely separate from the issue of legal recognition of domestic partnership, the state has a legitimate rational interest in deterring, preventing or punishing consanguineous sexual relations between close blood relations (first-degree incest). Here, the objections to allowing such relations are those from (1) child abuse; (2) unfair burdening of society; and (3) the creation of bad lives. I argue that while rape and other forms of child abuse would be no more legal or tolerated than they are now, the concern about any form of weakening a society's legal and political resources to combat such abuses does indeed register on the justificatory scale, but does not prove that such first-degree incestuous sexual relations are inherently bad enough to warrant intervention. I then argue that the concern about unfairly burdening society with unhealthy persons is not as dangerously totalitarian as we might initially fear, but nor is it strong enough to justify an outright prohibition. Finally, I argue that a concern to dissuade persons from creating certain kinds of lives (children with extreme birth defects) is also not as dangerously totalitarian as we might initially fear, and in fact goes further towards explaining why we might have a legitimate interest in intervening. Nonetheless, I argue that the criminalization of such acts only make sense when they are indicators of other offenses, namely negligence or abuse, and it thus seems that the act of consanguineous reproduction is itself insufficient. (shrink)

In this article I consider whether there a right to incestuous marriage. I begin by suggesting that the liberal state get out of the "marriage" business by leveling down to a universal civil union or "registered domestic partnership" status. Removing the symbolism of the term "marriage" from political conflict, privatizing it in the same way as religion, would have the advantage of both consistency and political reconciliation. The question is then whether incestuous unions should be both legal and eligible for (...) this status. I argue that the arguments compatible with public reason for prohibiting them outright, or even for excluding them from the permissible types of legally registered partnerships, are quite weak. The objections to allowing such relations are those from (1) child abuse; (2) unfair burdening of society; and (3) the creation of bad lives. I argue that while rape and other forms of child abuse would be no more legal or tolerated than they are now, the concern about any form of weakening a society's legal and political resources to combat such abuses does indeed register on the justificatory scale, but does not prove that such first-degree incestuous sexual relations are inherently bad enough to warrant intervention in their own right. I then argue that the concern about unfairly burdening society with unhealthy persons is not as dangerously totalitarian as we might initially fear, but nor is it strong enough to justify an outright prohibition. Finally, I argue that a concern to dissuade persons from creating certain kinds of lives (children with extreme birth defects) is also not as dangerously totalitarian as we might initially fear, and in fact goes further towards explaining why we might have a legitimate interest in intervening. Nonetheless, I argue that the criminalization of such acts only make sense when they are indicators of other offenses, namely negligence or abuse, and it thus seems that the act of consanguineous reproduction is itself insufficient. One potentially surprising conclusion of this inquiry is that far from creating strong reasons for tolerating these practices, religious or cultural reasons for valuing incest (as well as polygamy) actually seem to count against tolerating them. The reason is that from a liberal perspective, tolerating polygamy and incest involves the assumption that it is possible to disassociate polygamy and incest simpliciter from abusive practices associated with them, including environments where children are raised to devalue their own sexual (and other) autonomy. However, the presence of comprehensive doctrines which include polygyny or incest as part of a good life actually makes it harder to justify disassociating polygamy and incest themselves from the likely abuse and coercion practiced by those who would value polygyny or incest. (shrink)

This Article examines the role that the incest taboo has played in slippery slope rhetoric pertaining to same-sex marriage specifically, and non-normative family arrangements more generally, and argues that the law must reappraise the extent to which disgust, rather than reasoned argument, sustains laws governing sexual and familial choice. It takes issue with the claim that discussion of the taboo has led to its erosion, and contends that it has remained a powerful symbol of non-normative sexuality that sits at the (...) bottom of the slippery slope of sexual deviance. While often dismissed as mere rhetoric, the incest/same-sex relations analogy has been a strategic way to provoke disgust against otherwise consensual relationships. To explain why the taboo has persisted over time as a point of comparison to any non-normative family arrangement (interracial marriage, same-sex marriage), it maintains that incest, more than any other sexual taboo, represents an archetypal form of disgust and boundary violation. This theory of incest as a core symbol of disgust looks to other disciplines, including political theory, anthropology, and moral psychology, that have described disgust in similar terms, namely, as a mechanism triggered in response to any perceived instance of boundary violation. After situating the taboo within this theoretical framework, this Article explores more fully how, and why, the law has relied on the taboo to discriminate against consensual sexual relationships, most notably same-sex relations. It concludes by suggesting ways in which the law might turn away from the taboo and embrace other models that conceive of familial and sexual relationships in more expansive and less disgust-driven ways. (shrink)