Why is Incest Illegal?

Posted on August 5, 2011 by | 21 Comments

Yesterday two people in Birmingham were given prison sentences for the crime of incest. The judge said when sentencing them that “There appears to have been a relationship that involved genuine affection,” but then went on to say that it was “abhorrent to society at large.” Why is this being deemed as acceptable?

If the ongoing fight for LGBT rights has taught us anything it is that no matter what the opinion of society at large is about certain sexual practices they should still be legal between consenting adults. To say that an activity is not something you would wish to partake in yourself should be illegal when it does not affect anyone beyond those taking part is simply bigotry.

As far as I can tell there are two arguments those who support the current incest laws use to back up their position. The first is that it makes it easier to convict people in the case of non-consensual abuse. This argument clearly makes no sense. Non-consensual sexual abuse is already illegal. If there are problems obtaining convictions then there is a serious problem, but it will not be remedied by making something else unrelated illegal. It would be like making jay-walking illegal in order to make murder prosecutions easier.

But it becomes worse than illogical when someone who has not committed an abuse is prosecuted and ends up in prison – it becomes unjust. Failure and laziness on the part of prosecutors and legislators to properly address a problem has lead essentially innocent people being jailed.

The second argument against incest is that any resulting offspring from such a union would have a higher chance of having a disability. This line of argument has a name: eugenics.

The idea that a particular person or couple should be banned from breading on the basis of the lightly genetic health of their offspring has been around for a long time. It is, however, widely recognized as an abhorrent restriction of a person’s freedom and human rights. If we invoke this as an argument for the continued ban of incest then surely we must extend it to other individuals and couples who have similar or higher chances of producing disabled children. I for one find that suggestion horrific.

Our prisons are full. We are spending an inordinate amount of money on them while simultaneously cutting vital public services. Why are we still locking people up for who they want to have sex with?

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Comments

21 Responses to “Why is Incest Illegal?”

  1. LatentexistenceNo Gravatar
    August 5th, 2011 @ 3:58 pm

    I would imagine it’s still illegal for two reasons. (1) People don’t like it because it’s different. (2) The bible forbids it, which backs up my first point.

  2. matt sellwoodNo Gravatar
    August 5th, 2011 @ 5:00 pm

    You are entirely correct, though it would be a brave campaign that took up the issue…!

  3. AlexNo Gravatar
    August 5th, 2011 @ 11:35 pm

    Look, I don’t want to come across as raining on your parade — I completely agree with you, on many points — but I can’t let your ‘anti-eugenics’ argument stand.

    You can’t claim that preventing certain people from breeding is the same thing as preventing any people from INbreeding. It’s just not like that.

    Anyone who knows about the effects of inbreeding can see how it’s a totally different ‘moral issue’ to taking away a particular person’s right to make babies, or breeding the Master Race.

  4. Jamie FairlieNo Gravatar
    August 5th, 2011 @ 11:58 pm

    @Alex

    I can see the point you are making, and where you are coming from. Clearly attempting to prevent debilitating conditions is not the same as trying to breed a master race.

    Perhaps I have a broader definition of eugenics than you, but I would say that any system that decides who may or may not breed, and with whom, falls into under definition.

  5. AlexNo Gravatar
    August 6th, 2011 @ 12:18 am

    I mean, ultimately, what do I care anyway, saying who can and can’t have offspring with whom? I can’t imagine any point in the future where I’m likely to breed, myself, so as a non-participant I haven’t got the right to telling other people they’re doing it wrong.

    But as far as I can tell, it’s not even ‘eugenics’ (even by your broader definition than mine) to avoid inbreeding; it’s just plain common sense.

    Anyway, let’s not get to arguing. Any movement which campaigns against putting people in prison for non-crimes is okay in my books.

  6. JamesNo Gravatar
    August 6th, 2011 @ 12:49 am

    Your concept of ‘consent’ is too thin. There are all sorts of contexts in which people may consider themselves to ”freely consent’ but in fact be induced by circumstance or relationship. For instance, Liberalism likes to talk about ‘free markets’ and ‘free labour'; people do indeed consent to form a free labour contract. But in capitalist society they have no choice but to exercise this free choice. Recognition of this is the essence of the socialist critique of capitalism.

    In an analogous fashion feminism showed how women may ‘consent’ to activities that reproduce their oppression. And feminists also helped us to see the intensity and potential damage of the power relationships in a family.

    A father could raise his daughter ready for sexual relations when – if we followed your recommendation – it had become legal. So too could a brother or a mother and so on.

    The underlying issue here is consent. Liberalism tells us that anything is fine as long as there is consent. But this hides all sorts of abuses. Consent is not free or uncoerced so long as society is unequal, so long as there is racial, sex or class domination. and ‘consent’ can never of itself make anything justified

    If we took your path and legalised incest in ‘consenting adults’ then there would be

  7. JonathanNo Gravatar
    August 6th, 2011 @ 8:16 am

    I tend to agree with Alex and James.

    In many cases taboos have evolved for what were good practical reasons.

    Judaeism (and Islam) forbids eating pork and treats pigs as unclean. Pigs have been, historically, a majour source of disease amongst humans. Human viruses travel to pigs, mutate and then come back deadlier than before.

    Judaeism forbids eating shellfish. Again shellfish are a major source of food poisoning.

    Incest is a taboo pretty much the world over because it is a reliable recipe for producing offspring that suffer from any number of ailments, physical and/or mental. Our ancestors, with little or no understanding of genetics, understood this very well.

    Would we do this knowingly? In the US couples marrying in certain states are required to be screened so that any possible genetic incompatibilities that could lead to life threatening conditions are flagged.

    it’s one thing to rightly insist that a living being with physical or mental disabilities is as human as the next human, it’s another to consciously take a course of action that could lead to a human coming into being that may face a compromised quality of life.

    Our ancestors also understood the point James makes. The parent/child and the sibling relationship is one that’s supposed to be about trust. It’s also one where we tend to accept that the power relationship is quite one sided and for that reason we expect parental power to be used judiciously.

    When one person with considerable power exploits that power to procure sex from another that constitutes rape. It’s why a few years ago a rich sixty something football club chairman (of Blackburn, Burley or some such I think) was jailed for the rape of a 16 year old girl because he used his wealth and power to induce her to have sex. Rape isn’t just about physical force it’s about abuse of power.

    For that reason, and because familial relationships tend to be opaque to those outside the family, incest is widely taken to be a violation of the trust that we expect from relationships with that imbalance of power. The same applies to teacher/pupil relationships and employer/employee relationships.

    I’ve spent a lot of time in Turkey and SE Asia and amongst conservative, rural communities (where practices like honour killing can be found) where religious values are strong incest is also prevalent. Why? Because the taboo of incest is less than the taboo of having an affair or of a daughter having sex outside marriage.

    Without any taboo surrounding incest then daughters reaching the age of consent might be considered fair game as well as legal (and do bear in mind that in most of Europe the age of consent is lower than in the UK; 15 in France, Sweden, Greece and across much of Eastern Europe, 14 in Germany, Austria, Italy and Portugal and was raised to 13, from 12 in Spain in 1999.)

    For these reasons incest is qualititively different than say gay relationships or interracial relationships because we cannot assure ourselves of the meaningful consent of all those involved (not least of the unborn potential offspring).

    Lastly could we Greens please stop discussing rights in the absence of our concomitant responsibilities. The two go hand in hand and decoupling them exposes us to ridicule.

  8. Jamie FairlieNo Gravatar
    August 6th, 2011 @ 11:49 am

    @James

    I agree with your point on consent 100%. However, they are not confined specifically to incest as they can apply to many situations involving sexual relationships. I would say that any sexual relationships with coerced consent should be considered as rape, and treated as such.

  9. JamesNo Gravatar
    August 6th, 2011 @ 11:52 am

    It is worth reading closely the news story to which this post refers. Assuming it is accurate it tells us, firstly, the young woman’s father was physically abusive towards her and her mother. The daughter was separated from her father but chose to track him down – understandable and suggestive of someone looking to find out about themselves, their past, their identity and thus also someone potentially emotionally vulnerable, even looking for a father figure on whom she might rely or learn from or rectify past traumas with.

    The Judge describes the daughter as ‘vulnerable’ and refers to her having a history of poor relationships. He describes the father as manipulative.

    Is this really all just fine?

    Too often – in the name of a misguided idea of liberalism and individualism – we turn a blind eye to such abuses. As I said above ‘consent’ alone cannot be sufficient to justify actions and as Jonathan says above there are not only rights but also responsibilities – of individuals for each other and their environment, but also responsibilities of the community for its members. And in this case the community is right to have regulations to protect family members (and what is wrong in this case is the punishment of the daughter who more likely needs care and support).

    But there is a larger issue here. Insistence on the primacy of ‘consent’ and the ‘rights’ of individuals over anything else is a central part of the justification and support for the inequities and abuses of capitalism. If everything is about individuals and consent then – neo-liberals tell us – there is no justification for any sort of control of the ‘free’ market or any regulation by the community of capitalist activities.

    The reason we are Greens (and perhaps also socialists) is that we recognise the power held by corporations, and the way in which it is used to distort the desires of individuals, to convince them that their short term pleasure (‘cheap’ flights, more consumer goods, more waste) is more important than actual long-term well-being.

    ‘Consent’ IS important but we have to stand up against the ideology which promotes it as the only measure or as one which trumps all others. The story linked to in the post is one of horrible emotional abuse, of the manipulation of feelings and neediness of a young woman by a much older man who sought only to satisfy his own desire, to control and dominate. That is NOT something we should be defending- that we are might suggest some deep problems in our thinking and in our ethics.

  10. Jamie FairlieNo Gravatar
    August 6th, 2011 @ 11:59 am

    @James

    You are right, the particular story here is an interesting one. Let us assume that you are right, and that the father was an abusive manipulator in every way, and fully deserves his time in prison. There has still been a gross injustice done as the daughter was also jailed. If what you are saying is true then the courts have treated the victim of abuse as a criminal. I f this is the case then something is clearly very wrong.

    I absolutely agree with everything you have said about consent, but it is obvious from this example that the laws we have, laws covering incest in particular, are not working if they are punishing the victim.

  11. Jamie FairlieNo Gravatar
    August 6th, 2011 @ 1:21 pm

    @Jonathan

    Thank you for brining up the case of the football chairman, as it demonstrates my point quite well.

    If the current incest laws are necessary to prevent abuse, then surely there would have to be similar laws preventing the rich from sleeping with the poor to prevent cases like the one you described. But they were not necessary here: the man in question was convicted under existing rape laws.

    Abuse is abuse, regardless or how closely related those involved are.

  12. JamesNo Gravatar
    August 6th, 2011 @ 1:34 pm

    @Jamie

    It is good that we can reach agreement on this. It is vital to recognise that people may ‘willingly’ collude in their own oppression or exploitation (because the key political challenge is to find ways to help people recognise this).

  13. IrrationalPointNo Gravatar
    August 7th, 2011 @ 11:17 am

    I agree with James. Consent is importnat, but consent doens’t meant the same thing as “going along with it” or “agreement”. The circumstances have to be such that both people are are able to make a free decision, and not be subject to manipulation, abuse, or coercion. As James points, it is not at all obvious that this case meets the “free, enthusiastic consent” standard that progressives have usually upheld as the ideal, since allegations of abuse have been made against the father.

    We might also be concerned that cases that involve people in positions of trust or authority cannot ever, or can only rarely meet the standard of free, enthusaiastic consent. Some types of (especially parent-child relationships) relationships might be too vulnerable to coercion because of the amount of trust or authority involved, and so it would be important to hold some relationships to a higher standard of consent.

    I’m not convinced that LGBT relationships are an appropriate comparator. Maybe age of consent is a better comparator. Some young people are obviously not able to consent because they lack the capacity to understand what they’re getting themselves into at age 16. But some young people are perfectly able to understand what’s involved in consent by, say, age 15. Does that make it fair to prosecute a 16-year-old for having sex with a 15-year-old partner? Maybe not, but on the whole, I think having a fixed age of consent protects far more people than it hurts. And I’m inclined to think much the same about inceest laws — the cases where genuine consent can exist between immediate relatives are likely to be so rare that incest laws almost certainly protect far more people than they hurt.

    And frankly, given how many people are abused by members of their family, it seems to me that a rather more pressing problem is how many people get away with uncontrovertially abusive behaviour.

    –IP

  14. Seb PowerNo Gravatar
    August 8th, 2011 @ 2:26 pm

    @Alex, the reason I think incest is illegal is because we think disabled people would prefer to be fully abled and therefore we beleive two closely related people who have a child know there is a possibility they will be “burdened” with a disability and that is apparently wrong.

    I’d prefer to live in a society where disabled people felt comfortable with the way they are and were allowed to contribute meaningfully to society rather than being discriminated against and constantly told they have problems. If this was the case, then perhaps we wouldn’t have such a problem with incest.

    Also, as Jamie pointed out, the issue of consent applies to everyone and obviously consent must be based on a free and informed decision. Why just pick out incest and not apply the same thinking to other relationships? James, are you implying that there simply cannot be free consent in an incestual relationship?

  15. IrrationalPointNo Gravatar
    August 8th, 2011 @ 6:25 pm

    Re the disability issue:

    Obviously the rights of disabled people are important, but it doesn’t seem to me that this can be the pivotal issue here, since incest only presents a small risk of disability, and we don’t, make it illegal to have disabled children, or to conceive children in circumstances that would present a similar risk of disability such as if the mother is over 35. So this seems like a post-hoc rationalisation to me, rather than like a genuine reason.

    @Seb Power:

    I’m a little confused by your comment — can you help me out? When you say that “Why just pick out incest and not apply the same thinking [with regard to consent] to other relationships?” I’m a bit confused because we *do* require consent for *all* relationships, and there additionally regulations about relationships in which it is assumed that a higher standard of consent must be used. In Scotland, these are classed as “positions of trust”, and they include caregivers in various institutional settings in current legislation, and say that the age of consent must be 18, not 16, in such a case. So incest isn’t being singled out in law.

    –IP

  16. Jamie FairlieNo Gravatar
    August 8th, 2011 @ 6:34 pm

    @Irrational Point

    “I’m a bit confused because we *do* require consent for *all* relationships”

    Which is why incest laws are at best redundant, and at worse harmful.

  17. Seb PowerNo Gravatar
    August 8th, 2011 @ 9:18 pm

    @Irrational Point

    James was saying it can be difficult to judge if consent in an incestual relationship was freely and well informed.

    I was saying this applies to any relationship. See Jamie’s post no. 10

  18. JonathanNo Gravatar
    August 10th, 2011 @ 2:43 pm

    @Jamie There are laws for preventing the rich from abusing the power their wealth gives them to procure sex from the poor – they’re called rape laws. If a loan shark procures sex in lieu of a debt against the proper consent of the other party that is rape. Moreover rape laws have been used thus.

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