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Vice is Nice But Incest is Best: The Problem of a Moral Taboo

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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 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.

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Notes

  1. Jacoby (2005).

  2. Id.

  3. 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.”).

  4. 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).

  5. 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).

  6. See, e.g., Ala. Code 1975 § 13A-13-3.

  7. See McDonnell (2004) at 348–349 (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 1344–1345.

  8. Model Penal Code (“MPC”), § 230.2 (Official Draft and Revised Comments 1980).

  9. MPC, § 230.2, cmt 2 at 402 (Official Draft and Revised Comments 1980).

  10. Id.

  11. Ala.Code 1975 § 13A-13-3, cmt. 1.

  12. Id.

  13. U.S. Constitution, 1st Am. See also Everson v. Board of Education of Ewing Township, 330 U.S. 1, 15 (1947) (prohibiting laws “which aid one religion, aid all religions, or prefer one religion over another”); Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (to be constitutional (1) law must have secular legislative purpose; (2) principal or primary effect of law must neither advance nor inhibit religion; and (3) law must not foster “an excessive government entanglement in religion”).

  14. See U.S. Constitution, 14tht Am. (declaring that “no state shall … deny to any person within its jurisdiction the equal protection of the laws”).

  15. See U.S. Constitution, 5th Am., 14th Am. (prohibiting the federal and state governments, respectively, from depriving any person of “life, liberty, or property, without due process of law.”).

  16. Ala.Code 1975 § 13A-13-3, cmt. 1.

  17. Fox (1980) at 6.

  18. Id.

  19. 14 Family Law Vol. (No. 4, April 2008). A court-ordered study conducted by the Max Planck Institute for Foreign and International Criminal Law showed that, of the twenty countries included in the survey, only thirteen criminalized incest. The other seven, however, used civil sanctions (such as ban on marriage between siblings, and non-recognition of children from incestuous relationships) to prevent the mating of siblings. Fox (1980) at 6.

  20. Fox (1980) at 6.

  21. MPC, § 230.2, cmt 2(b) at 402 (Official Draft and Revised Comments 1980). See also 14 Family Law Vol. (No. 4, April 2008) (reporting that Germany's highest court upholds German law criminalizing incest, inter alia, to prevent genetic harm to innocent offspring).

  22. Some statutes seem to be directed specifically at childbearing. See, e.g., Utah Code Ann. § 76-7-102 (2011) (banning, in addition to intercourse, any way to provide a human egg or seminal fluid to a related person). However, even those laws can hardly be justified by the genetic rationale alone because their definition of “related persons” includes parents–children by adoption as well as stepparents–stepchildren.

  23. But Wisconsin does not prosecute a sexual relationship between first cousins if the female is 55 years old or older or if either partner can provide proof of sterility.

  24. ALM GL ch. 272, § 17 (2010). Some other statutes, however, are less restrictive. In Alabama, for instance, the legislature voted down the proposal to include in the scope of prohibited conduct “deviate sexual intercourse” (in addition to “sexual intercourse”) because, as the commentary explains, such “conduct is not supported by the genetic justification.” Ala.Code 1975 § 13A-13-3, cmt. 4(a).

  25. See, e.g., Ala. § 13A-13-3 (“A person commits incest if he marries or engages in sexual intercourse with a person he knows to be … [h]is brother or sister of the whole or half-blood or by adoption.”); Tenn. Code Ann. § 39-15-302 (2011) (“A person commits incest who engages in sexual penetration … with a person, knowing the person to be … [t]he person's brother or sister of the whole or half-blood or by adoption.”); Tex. Penal Code § 25.02 (2010) (“ A person commits an offense if the person engages in sexual intercourse or deviate sexual intercourse with another person the actor knows to be … the actor's brother or sister of the whole or half blood or by adoption.”).

  26. MPC, § 230.2, cmt 2 at 404 (Official Draft and Revised Comments 1980) (citing Stern (1950), who wrote: “the exclusion of consanguinity in one generation transfers the load of affected individuals to later generations”). See also Carolyn S. Bratt, Incest Statutes and the Fundamental Right of Marriage: Is Oedipus Free to Marry?18 Fam. L. Q. 257 (1984). Bratt wrote:

    The gene trait, if severe enough, will eliminate itself from the gene pool when it is manifested in the homozygote by killing the homozygote or rendering her or him sterile. If incest statutes prevent the coming together of two recessive genes in the present generation, the gene will be dispersed throughout the population in general.

    Id. at 272.

  27. MPC, § 230.2, cmt 2(c) at 406 (Official Draft and Revised Comments 1980).

  28. Id.

  29. See, e.g., § 720 ILCS 5/11-11 (punishing only “an act of sexual penetration”); Fla. Stat. § 826.04 (2011) (defining sexual intercourse as “the penetration of the female sex organ by the male sex organ”).

  30. ALM GL ch. 272, § 17 (2010).

  31. See, e.g., Ala.Code 1975 § 13A-13-3, cmt. 3.

  32. MPC, § 230.2, cmt 2(e) at 407 (Official Draft and Revised Comments 1980).

  33. See, e.g., Moore (1997) at 649 (it is “plausible to think that the world is a morally better place when moral obligations are kept than when they are not, so it is plausible to motivate criminal legislation with this end”). See also Duff (2010) at 90 (outlining the boundaries of legal moralism).

  34. MPC, § 230.2, cmt 2(d) at 407 (Official Draft and Revised Comments 1980) (“a penal law will neither be accepted nor respected if it does not seek to repress that which is universally regarded by the community as misbehavior”). See also Robinson and Darley (1995) at 5–7 (arguing that community views are important, from both the retributivist and the utilitarian perspectives, to what criminal law rules ought to be).

  35. Patrick Devlin, Morals and the Criminal Law at 17 (1965).

  36. Devlin (1965) at 17.

  37. Hart (1959) at 158.

  38. Hart (1959) at 162.

  39. Lawrence v. Texas, 539 U.S. 558, 578 (2003).

  40. Id. at 571.

  41. Id.

  42. Id.

  43. Id. at 599 (citations omitted).

  44. Martin v. Ziherl, 607 S.E.2d 367, 370-71 (Va. 2005) (holding that a statute prohibiting sexual contact between unmarried persons is unconstitutional under Lawrence).

  45. State v. Lowe, 861 N.E.2d 512 (OH 2007); Lowe v. Swanson, 639 F. Supp. 857 (N. Dist. OH 2009).

  46. Lowe v. Swanson, 639 F. Supp. at 867. See also People v. Scott, 157 Cal. App. 4th 189 (2007) (for a similar argument in the case of a sexual intercourse between a father and his 18-years’ old daughter).

  47. 412 F.3d 808 (7th Cir. 2005).

  48. Lawrence, 539 U.S. at 578.

  49. Recently, the issue was raised again when Columbia University Professor David Epstein was charged with third-degree incest for having a consensual sexual relationship with his 24-year-old daughter. Epstein’s lawyer, Matthew Galluzzo, said in a television interview: “It’s OK for homosexuals to do whatever they want in their own home … How is this so different? We have to figure out why some behavior is tolerated and some is not.” See Colson (2011). Epstein eventually pleaded guilty to a misdemeanor charge of attempted incest. See http://3.bp.blogspot.com/-Bd4mr-W0TFs/Td1lbkoRKYI/AAAAAAAAIKo/8yIyCTnHnFk/s1600/DavidEpsteinGuiltyIncest.JPG.

  50. Lawrence, 539 U.S. at 577 (quoting .Justice Stevens’s dissenting opinion in Bowers).

  51. Lawrence, 539 U.S. at 578.

  52. See Colson (2011).

  53. Franck (2005).

  54. Jacoby (2005).

  55. See, e.g., Beard v. State, 2005 Tenn. Crim. App. LEXIS 568, at *6 (Tenn. Crim. App. June 7, 2005) (“[I]ncestuous relationships are not protected by our state constitution and the Lawrence decision in no way alters our holding … ”); Bronson v. Swensen, 394 F. Supp. 2d 1329, 1334 (D. Utah 2005) (“[T]his court cannot hold that Lawrence can be read to require the State of Utah to give formal recognition to a public relationship of a polygamous marriage.”); State v. Van, 688 N.W.2d 600, 615 (Neb. 2004) (explaining Lawrence “did not extend constitutional protection to any conduct which occurs in the context of a consensual sexual relationship” but only to such that does not involve injury to a person or abuse of an institution protected by law).

  56. Warren and Brandeis (1890) at 193.

  57. See, e.g., Bergelson (2007) at 204.

  58. See, e.g., R v. Brown, [1994] 1 A.C. 212, 250 (H.L.) (Lord Lowry’s opinion) (opining that “for one person to inflict any injury on another without good reason is an evil in itself (malum in se) and contrary to public policy”).

  59. Robinson and Darley (1997) at 457.

  60. Posner (1992) at 202.

  61. Bowers v. Hardwick, 478 U.S. 186, 196 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003) (upholding constitutionality of anti-sodomy laws).

  62. Lawrence, 539 U.S. at 578 (emphasis added).

  63. Bowers, 478 U.S. at 193-94.

  64. Tannahill (1980).

  65. The term belongs to Leo Kass. In a series of articles and his book, Kass (2002), he stated that, in some cases, “repugnance is the emotional expression of deep wisdom, beyond reason's power fully to articulate it.”

  66. See Kass (2002).

  67. Fox (1980 ) at 1–2.

  68. Haidt and Hersh (2001) at 197.

  69. Haidt and Hersh (2001) at 197.

  70. Devlin, The Enforcement of Morals.

  71. Devlin, The Enforcement of Morals.

  72. Nussbaum, Danger to Human Dignity (2004) at B6; Nussbaum, Hiding from Humanity (2004) at 72.

  73. Nussbaum, Danger to Human Dignity (2004) at B6.

  74. Fox (1980); Tannahill (1980).

  75. Nussbaum (2004), Hiding from Humanity at 88 (citing a study, in which people reacted to the same odor differently depending on whether they believed its source to be cheese or feces).

  76. Nussbaum, Hiding from Humanity (2004) at 107–108.

  77. Posner ( 1992 ) at 203.

  78. Posner ( 1992 ) at 202.

  79. Devlin, The Enforcement of Morals.

  80. Westermarck (1891).

  81. Shepher (1983).

  82. See Colson (2011). A conservative writer, Colson concedes: “Unfortunately, under Lawrence, what ethicist Leon Kass calls the “wisdom of repugnance” is an insufficient basis to outlaw something.”

  83. Posner (1992) at 203.

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Acknowledgments

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.

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  1. Rutgers School of Law (Newark), Newark, NJ, USA

    Vera Bergelson

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  1. Vera Bergelson
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Correspondence to Vera Bergelson.

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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).

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Bergelson, V. Vice is Nice But Incest is Best: The Problem of a Moral Taboo. Criminal Law, Philosophy 7, 43–59 (2013). https://doi.org/10.1007/s11572-012-9158-9

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