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Wednesday, November 30, 2016

An Interesting Link

At Reddit, someone linked to this blog to answer "Is It Illegal to Sell Homemade Incest Porn?"

It is important to remember this blog is about real people in real relationships who are suffering real persecution and discrimination because they love each other. It isn't about porn or erotica and it isn't about a fetish people may have that might prompt them to look into "incest porn." Porn, like almost all media, usually doesn't depict reality on a consistent basis. We addressed these issues previously in this entry.

That being said, we welcome anyone who wants to know more about consanguinamory (consensual incest) and especially people who want to be allies for the rights of all adults. So, hopefully, we can shed some light on the issues raised by the question.


First, let's limit "incest" to consanguinamory, so we exclude material that depicts assaults on children and other forms of abuse.

Secondly, let's be reminded that this is NOT an opinion by a lawyer or legal advice. I'm not an attorney and I'm not claiming to give any legal advice.


Even so, this is a very complicated question to answer. So the TL;DR on this is "If you're going to sell any kind of porn, you should consult an attorney who specializes in these issues for your jurisdiction."

Full answer (again, not legal advice)...

There are at least two major considerations in answering this question: 1) the legality of selling porn in general, and 2) if the video shows, or reports to show, actual sexual acts between close relatives, the legality of consensual adult incest (consanguinamory).

But even where the second is illegal, it is generally not illegal to sell videos that recorded illegal activity, provided the perpetrator of the crimes is not profiting in doing so. For example, if I'm walking down the street and I see and record with my smart phone one person punch another person in the face and take the punchee's wallet, it isn't illegal for me to sell the video that I made. So, in this case, it could be criminal for, say, a sibling couple to record themselves breaking the law by having sex and then sell the video. Often, revenues are confiscated and redirected to the crime victims, which would be very interesting in such a case because who would be the victim? It's a victimless crime, which is one reason it shouldn't be criminal in the first place.

Regarding the first consideration (legality of selling porn in general), the US Supreme Court used to take cases which involved screening porn films to determine if they were illegally obscene or not. At least one Justice is reported to have been eager to do so. Another was visually impaired to the point that he had to have an assistant describe what was happening on the screen. Anyway, eventually the Court said enough was enough and they kicked the matter back to state and local jurisdictions, saying that what was considered obscene varied from community to community so they refused to impose a national standard. That was back when porn was mostly obtained through either mail order or by going to a physical store. Now, of course, people can buy and sell things online and their neighbors never have to even know they are doing it and can hardly claim that their neighborhood is being harmed (as they used to when someone would  open an adult store).

One very important word is "sell." Commerce in the US can be regulated and restricted in all kinds of ways that other activity won't be. If someone is distributing media for free, that can be a whole different matter than selling it. First Amendment (freedom of speech/expression) rights in the US can also be limited when it comes to things that are broadcast (broadcast television and broadcast radio) as the airwaves are regulated. Whether selling or distributing without compensation, providing pornographic material to minors is generally illegal (although there are some exceptions if their own parents are providing it to them, such as for sex ed purposes... see how convoluted this all is?!? And while fantasy porn isn't the best sex ed material, some might call some sex ed materials pornographic so I think the allowance was to protect against punishing parents who use explicit material for genuine education).


Another important word is "homemade." As I understand it (and I could be wrong or my understanding could be outdated) there are only two states in the US where commercially producing porn is specifically legal, and those states are California and New Hampshire. Neither state criminalizes sex between first cousins, but sex between relatives any closer than first cousins is criminal, as ridiculous at that is. So in recording actual sex acts, people would be incriminating themselves. However, that would be if they were actually close relatives, not if they were unrelated actors portraying characters who were close relatives. Prostitution is officially legal in part of Nevada, and it seems odd that it would be illegal to produce videos where the people are paid to have sex. But Nevada is also one of the few states where even first cousins could be criminally prosecuted for having sex.


Successfully prosecuting someone for selling homemade incest porn, if our justice system works as claimed, would involve several steps. The material would have to come to the attention of law enforcement of the appropriate jurisdiction. For example, if something was recorded and sold in California, a prosecutor in Alabama would likely have no power to do anything about it (other than alerting someone who does); it would be either a matter of the State of California or a federal prosecutor. It would also have to be determined which laws were broken, such as operating a business without a license, or laws against consensual adult incest (if the people in the video were actually close relatives). The prosecutor would have to choose to pursue the matter (thereby wasting public resources), and either a judge or a jury (the person being prosecuted can ask for a jury trial or a judge trial) would have to find that the criminal charges were proven beyond a reasonable doubt.

In Conclusion...

All of this being said, it seems rather silly that it would be criminal for adults to record themselves having sex with each other at home, a neighbor hearing about it and saying "I'd like a copy of that" and paying them some cash for the trouble. But also consider that in many states, people can legally have sex with each other (even be married) at age 16 or 17, but recording themselves doing it would be criminal, even a federal offense. Laws can contradict each other in spirit and in detail, and so attorneys will always have much work to do. And wouldn't you know it? Many legislators are attorneys.

Whatever the legalities, "incest porn" remains extremely popular. We addressed a specific series of such that appears to be homemade in this previous entry.

While there is an endless amount of "incest porn" online, some of it claiming to be real and some of that appearing to be homemade, it is also quite possible that some real homemade porn has made it online without being labeled as such. After all, like many other lovers, some consanguinamorous lovers (who are more common than most people think) record themselves in action. And if they're in one of the states where their love is not criminalized and they don't sell the material (perhaps, even, it was hacked and copied from them without their permission?), then what crime have they committed?
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