Stanford Journal Article: Remove Laws Against Consensual Incest

Clare Theresa Kasemset wrote “Should Consensual Incest Between Consanguine Adults Be Restricted?” It is found in Intersect: The Stanford Journal of Science, Technology &; Society, Vol 2, No 1 (2009)
NOTE: Comment left by Anonymous gives this link: http://ojs.stanford.edu/ojs/index.php/intersect/article/view/137

The abstract says…

Many states outlaw sexual intercourse between adults who are closely related by blood, such as first cousins. This paper first gives an overview of recent news involving this type of incest and the current legal restrictions surrounding it. It then lays out arguments in favor of either stricter regulation or more lenient treatment. Finally, it proposes and justifies an alternate solution to legal restrictions.

She starts off with the “ick” factor.

Because the term “incest” can apply to such a wide variety of situations, people often confuse their feelings about incest with their feelings about pedophilia, rape, and adultery. The fact that incest often involves those acts, which seem obviously destructive and wrong, makes people associate it with grievous harm. Most news cases about incest report sexual relations between a parent or stepparent and a child.

That’s because consensual incest rarely comes to the attention of the news media.

To avoid the confusion of incest with other sexual crimes, this paper will restrict its scope to the issue of incest between consenting adults who are related by blood.

That is what I call “consanguineous sex”.

What sort of restrictions should be placed on consensual sexual intercourse between biologically related individuals?

None, if they are adults.

She goes on to write about the Stuebing-Karolewski case in Germany...

The lovers, Patrick Stuebing and Susan Karolewski, were separated at birth when Patrick was adopted by a family in another city.

When they met again, they were already past childhood. Although not legally married, they have had four children together. Three of their children have been placed in foster care, presumably because incestuous couples are somehow unfit for parenting, though the exact reasons are unclear from news articles. In addition, Patrick has served two years in prison for the crime of incestuous sexual intercourse. Even though he has undergone a vasectomy, he may still serve future terms in prison for that
crime (Moore, 2007).

It’s horrible that the law would try to keep consenting adults apart.

A similar case showed up in U.S. courts in 1997, when siblings Allen and Patricia Muth were charged as being unfit parents on the grounds of their incestuous relationship, and their child was taken into foster care.

Allen and Patricia had been separated from three months after Patricia’s birth until after their childhood. In a later court case, the couple was also convicted of incest, a crime for which Allen served eight years in prison and Patricia served four.

Outrageous.

She then gets into…

Arguments in Favor of Restricting Consensual Incestuous Activity

First up on the “mutant baby” argument, which has been refuted. See #18.

Second, almost all Americans find incest to be an offensive practice (citation needed).

Ah yes. The “I don’t like it” argument, which has been refuted. See #3

Third, the vast majority of people in this country have deep-seated beliefs that incest is immoral.

Again, this has been refuted as a justification. See #1-5

Then she gets to…

Arguments Against Restricting Consensual Incestuous Activity

Based on the lack of good arguments to keep restrictions, no argument against the restrictions should be needed. First up is that consenting adults should be allowed their sexuality.

Those in favor of legalizing incest first argue that incest does not cause enough harm to justify its prohibition.

Harm comes from child molestation and rape, neither of which involves consensual incest.

If Lawrence v. Texas (2003) allowed homosexuality to be practiced without government interference, even though it offends many other citizens, the government should take the same attitude towards incest. While it is true that homosexuality is not as universally offensive as incest, the threshold above which a percentage of the population qualifies as “universal” is arbitrary.

Actually, I would not be surprised in the least if it could be determined that significantly more people have engaged in consanguineous sex, or fantasized/thought positively about it, or lusted after or admired a close relative than have done the same regarding or with a nonconsanguineous same-sex partner.

How about, in support of such activity/relationships, we cite enjoyment by participants? Isn’t that a good argument? There are a lot of people who experience pleasure, empowerment, confidence, comfort, support, and many other good things as a result of their encounters or relationships.

Having been a little disappointing, she moves on to conclusions.

Supporters of incest rights argue convincingly against using the offense principle or legal moralism to justify banning incest. In general, the American government has been moving away from justifying its laws based on those principles, as Scalia noted in Lawrence v. Texas (Jacoby,2005). However, the arguments based on the harm principle merit further consideration.

If we must.

However, there are many actions that raise the risk of some harm, such as driving a car, which the government allows its citizens to do. The government only bans an action when it considers the risk of harm from an action to be too high, as with riding a car without a seatbelt.

So, does this mean that birth control should be required, in violation of reproductive rights? She doesn’t say.

If incest [between first cousins] should be banned, women above the age of 40 should also be banned from sexual intercourse. Moreover, there are many other groups that bear offspring with a high risk of having harmful disorders, whether genetic or not, and these groups would have to be banned from sexual intercourse as well. For example, people with HIV are not currently barred from sexual activity, even though the offspring of HIV infected women have a 25% chance of being infected with HIV (HIV/AIDS, 2004)—a number much higher than the 6% risk of birth defects for children of first-cousin couples (Rowlatt, 2005).

Clearly, this is not an option.

Given that the risk of harm is significant for multiple generations of incestuous mating, should the government attempt to restrict incest in families that have a history of interbreeding?

If the government were to implement a restrictive policy that only targeted this type of incest, it would need to keep track of family histories and choose an arbitrary value above which an incestuous couple’s risk of giving birth to children with defects would be considered too high. Such a policy would be extremely impractical to implement.

Not to mention invasive.

She cites education as an alternative.

The government should consider changing its measures in the manner outlined above, rather than continuing to enforce unreasonable laws.

Agreed! Thank you! Consenting adults have rights to share love, sex, residence and marriage, and the law should not trample on those rights.