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Sunday, September 8, 2013

State of New York Still Prosecuting Consenting Adults


That's the impression given to me based on what I can read of this article by Mike Hibbard at fltimes.com. The article is partially hidden behind a pay wall, so I can only base this on what I could see for free.


Marvin Martin, 28, pleaded guilty Tuesday in Yates County Court to third-degree incest. The charge is a class E felony punishable by up to four years in prison.

That charge is for consensual sex. And notice the article says "having sex," which I consider entirely different than assaulting. "Having sex" implies mutual consent. This is what the law say in New York...
§ 255.25 Incest in the third degree. A person is guilty of incest in the third degree when he or she marries or engages in sexual intercourse, oral sexual conduct or anal sexual conduct with a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece. Incest in the third degree is a class E felony.
In New Jersey, this wouldn't be happening.

If this had been assault or molestation, he could have been charged with 1st or 2nd degree incest, which deal with assault.

If this was consensual, it shouldn't be a crime.

If this was assault, did the DA make a deal in exchange for the guilty plea? Someone who rapes someone else should face a lot more than four years in prison. Someone who has consensual sex with another adult shouldn't be arrested in the first place.

Here are the laws against assault of a family member...

§ 255.26 Incest in the second degree. A person is guilty of incest in the second degree when he or she commits the crime of rape in the second degree, as defined in section 130.30 of this part, or criminal sexual act in the second degree, as defined in section 130.45 of this part, against a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece. Incest in the second degree is a class D felony.

§ 255.27 Incest in the first degree. A person is guilty of incest in the first degree when he or she commits the crime of rape in the first degree, as defined in subdivision three or four of section 130.35 of this part, or criminal sexual act in the first degree, as defined in subdivision three or four of section 130.50 of this part, against a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or half blood, uncle, aunt, nephew or niece. Incest in the first degree is a class B felony.

If anyone in law enforcement or journalism, especially the ones involved in this case, what to explain, I'm all ears. You can leave a comment, including anonymously, if you'd like, and you have request in the comment for me to NOT publish it, if you'd like. Or you can email me. 

UPDATE Sept. 9 2013: 

A kind person responded to my email inquiry about this, telling me this was a plea deal. From the full article...

Martin pleaded guilty under an Alford plea, where a criminal defendant doesn’t admit an act but admits the prosecution could prove the charge. He was arrested earlier this year by state police, who allege Martin had sex with his sister dating back to 2006, when she was 15.

The arrest was not reported to the media. With the ages of 21 and 15, this was either rape or statutory rape. It this was a rape, the sentence limitations mean the sentence will be far too lenient. There are still unanswered questions, such as why it took until 2013 to arrest someone for something that happened in 2006. Was she so traumatized that she didn't come forward until this year? Or was this something law enforcement took up because of someone else's concerns? The laws need to be reformed. Remove separate laws against "incest," instead adding sentencing enhancements for rape/assault or molestation if it is by a guardian or someone with authority or power over the victim.
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2 comments:

  1. One thing that I can never figure out is how people manage to get themselves caught in the act, since mere suspicion of sex does not make a valid court case. I doubt they went around bragging how they shagged each other, or that someone casually strolled into their bedroom in the heat of the moment.

    You'd think sexual intercourse would be easy to keep private, but apparently it isn't.

    ReplyDelete
    Replies
    1. As I wrote in another entry:

      The vast majority of people who have consensual sex with a close relative never get "caught." 10-15% of people in their early 20s will confide in surveys to having had consensual sexual contact with a sibling. The percentages rise in older age groups. That's just the people who will confide in the surveys, and doesn't include being with aunts, uncles, parents, etc. The percentages increase in older age groups because there are more opportunities over the years. Many of those situations involve a moment or a fling or something that just lasts for season, but in other cases they are long-term romances and lifelong spousal relationships.

      While most never get prosecuted, the threat is always there in so many places, and I regularly find news reports of such prosecutions. When people do get caught and publicly persecuted and, often, prosecuted, in almost every case, the lovers were outed and handed over to ax-grinding prosecutors due to one or more of a few factors (presented in no particular order):

      1) Self-incrimination.
      2) Being ratted out by a claimed witness.
      3) Testing and reporting of a child's DNA.
      4) Being caught in the act by law enforcement.

      In other words, it isn't like the police come door to door, scan crowds in public, or are doing stakeouts to catch consanguineous lovers breaking laws against consensual incest. That's the good news. But let's take a closer look at the bad news.

      Self-incrimination. One of the problems is that people either "confess" or tell law enforcement way too much that they don't have to. One or more of them admit the relationship, often not aware it is (still, stupidly) illegal where they are, wrongly thinking if they explain it was consensual then of course the police will leave them alone. Law enforcement may also get a hold of some media (love letters, homemade videos) that documents the sexual aspect of the relationship. That's right... doing something so many other lovers do freely can be used against these consensual relationships.

      Ratted out. Someone outside of the relationship, whether a nosy neighbor, a malicious ex, a jealous or envious family member, even a professional/academic/social rival sees something, hears something, or just gets a hunch based on how the lovers are smitten with each other and they contact the authorities.

      Child. If someone dares to exercise their reproductive rights and have a child together, the DNA of that child is proof of parentage. Contrary to popular myths, most children born to close relatives are healthy and do not look any different than any other child. Many of the ones I've seen are beautiful children. But, if the child's DNA is tested and the results showing the parents are consanguineous reported to the authorities, depending on the circumstances it may be used as evidence against the lovers.

      Caught in public. Many, many people have had sex in "public" places, usually without getting caught. Depending on the circumstances, police might send the lovers on their way. But, if in checking identification and asking questions, the police determine that the lovers are closely related (see "self-incrimination" above), they might arrest the lovers even when they would have otherwise let them go.

      Delete

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