District Court Judge Garry Neilson has been criticised for espousing the view that sexual contact between siblings or between adults and children should perhaps no longer be viewed as “unnatural” or “taboo”, the Sydney Morning Herald reported.
Neilson drew parallels with widely changing attitudes towards gay sex. In the same way, he said, “a jury might find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men and was now ‘available’, not having [a] sexual partner”.
According to that report, he said a jury might might think that. It didn't say he did. Keep in mind all of this is a reaction to news reports of what he said, which may or may not be accurate.
The judge went on to say that incest is only criminalised because of the high chance that any resulting offspring will be born with serious birth defects, but added that “even that [risk] falls away to an extent [because] there is such ease of contraception and readily access to abortion”.
That's not why it was criminalized, but it is an excuse used now to deny legalization or the freedom to marry, although it shouldn't be.
Neilson made the astonishing comments during the trial of a brother charged with raping his younger sister. The man had earlier pleaded guilty to sexually assaulting his sister when he was 17 and she was 10 or 11 in 1973 or 1974 – but pleaded not guilty to the charge of sexual intercourse without consent, with an alternative charge of incest, for the alleged 1981 offence.
10 or 11-year-olds are not considered able to consent to sex with a 17-year-old, by law and by all or virtually all relevant therapists. If this whole thing had started when she was 18 and she did consent, this would be a different matter.
Let's get something clear. Abuse/assault/molestation and sex are two different things. They are two different things whether the people involved are complete strangers, casual acquaintances, old friends, an item, or close relatives. Sex, which is consensual, and abuse, which isn't, should never be confused.
Abuse is not OK if the people know each other or live together.
Sex should not be criminalized just because the adults consenting to it are close relatives.
There should be no laws, no taboos, no stigmas, no discrimination against people for loving each other or playing with each other in sexual way. There is no good reason to persecute people for loving a close relative. It's a waste of energy to try to keep lovers apart. It is a waste of government resources to prosecute lovers. It is a travesty of justice to deny them rights, such as marriage, if they want to marry.
It is when people abuse children or assault other adults that they should be prosecuted.
However, Neilson refused to admit the evidence from the earlier case. He claimed that the sexual abuse that happened in the 1970s was of a different nature to that which occurred in the 1980s when the girl was 18 and the man 26.
He may have a valid point there or he may not, depending on her recovery, although I can't imagine consenting to sex with someone who abused me when I was a child. In criminal court, past crimes can be kept out of the case unless a direct connection can be made. There's a good chance a direct link could be made, but I'm not involved so it is just speculation on my part.
Neilson said: “By that stage they are both mature adults. The complainant has been sexually awoken, shall we say, by having two relationships with men and she had become ‘free’ when the second relationship broke down.
He's out of his mind there, I think. Having been sexually active with person A in no way implies consent to sex with person B. It doesn't even mean you consent to sex again with person A.
“The only thing that might change that is the fact that they were a brother and sister but we’ve come a long way from the 1950s … when the position of the English Common Law was that sex outside marriage was not lawful.”
He's right about that.
“If this was the 50s and you had a jury of 12 men there, which is what you’d invariably have, they would say it’s unnatural for a man to be interested in another man or a man being interested in a boy. Those things have gone.”Being interested in a man and being interested in a boy are two different things. Actually, being interested is not the same thing as acting with/on someone, either.
So now he's in hot water and a lot of people are calling for his head.
Dr Cathy Kezelman, the president of Adults Surviving Child Abuse, said the comments were “outrageous”.
“The relational betrayal of the horrors of incest between a brother and sister of any age is abhorrently criminal,” she said.
If she's saying that two grown siblings are unable to consent to sex with each other, she's being ridiculous. If she's saying that is always wrong for someone to force themself on another person, I'm with her. That is why the word "incest" alone is not a good word to use, because it can mean either. Sex (consensual) should be referred to as consanguineous sex or consanguinamory. Abuse should be sexual assault by a sibling.
I would hope that the judge is right in juries refusing to punish people for (consensual) sex. I would hope juries would continue to send abusers to prison.