Journal of Criminal Law and Criminology

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Journal of Criminal Law and Criminology Volume 55 Issue 3 September Article 2 Fall 1964 The Crime of Incest Graham Hughes Follow this and additional works at:
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Journal of Criminal Law and Criminology Volume 55 Issue 3 September Article 2 Fall 1964 The Crime of Incest Graham Hughes Follow this and additional works at: Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Graham Hughes, The Crime of Incest, 55 J. Crim. L. Criminology & Police Sci. 322 (1964) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized administrator of Northwestern University School of Law Scholarly Commons. THE CRIME OF INCEST GRAHAM HUGHES Professor Hughes is Senior Lecturer in Law in the University College of Wales, Aberystwyth. He is presently Visiting Professor of Law ( ) in New York University, and for he was Visiting Professor of Law in Stanford University. Professor Hughes studied law at the University of Cambridge, where he received the B.A. degree in 1948 and the M.A. degree in He also received the LL.B. degree from the University of Wales in 1950 and the LL.M. degree from New York University in The author has taught law in Britain, at the University of Wales and the University of Hull, and in the United States, at Yale University as well as New York University and Stanford University. How do the laws of England, the United States, and other countries compare in their treatment of the crime of incest? How serious is the incidence of the crime? How can the genesis of the incest taboo be explained? What are the real harms produced by the crime? And, can the existing prohibitions regarding incest be defended on utilitarian grounds? Considering these and related questions, Professor Hughes critically analyses the existing law and proposes a Model Incest Prohibition designed to encompass the socially harmful aspects of incest without also comprising those relationships with which he finds the criminal law should not be concerned.-edrrox. In jurisprudential writing in the last few years there has been a continuing debate over the relationship between morality and the criminal law.' One of the topics that has come to be discussed is whether some of the existing prohibitions of the criminal law can be defended on utilitarian grounds or whether they reflect only deep feelings in society of repugnancy which may not be capable of utilitarian justification. A criminal offense often mentioned in this connection is that of incest, and it may therefore be worthwhile to examine the existing law of incest as a crime in the light of informed opinion on the effects of incest behavior as expressed in the writings of sociologists, anthropologists, psychologists, and psychiatrists. THE STATE OF ='r LAW All common-law jurisdictions contain criminal prohibitions of incestuous intercourse. In England the offense was originally in the jurisdiction of the ecclesiastical courts and so has no history at common law. It was given a statutory form in the Punishment of Incest Act, 1908, and is now to be found in the consolidating enactment, the Sexual Offences Act, Section 10 of this statute provides that it shall be a misdemeanor for a man I DvL, Tim Eir-oacxmENr or MoRAss (1959); Rostow, The Enforcement of Morals, 1960 CAmm. L.J. 174; Hughes, Morals and the Criminal Law, 71 YALE L.J. 662 (1962); HART, LAW, LIBERTY AND MORALITY (1963). 2 4 & 5 Eliz. 2, c. 69. to have sexual intercourse with a woman whom he knows to be his granddaughter, daughter, sister, or mother. The section stipulates that the relationship need not be through lawful wedlock and that sister shall include half-sister. It may be noted that there is no mention of the unce-niece relationship nor of the stepfather and stepdaughter relationship. Under section 11 it is an offense for a woman, if over the age of 16, to permit a man in the group of relationships previously listed in section 10 to have sexual intercourse with her by her consent. A curious feature of this definition is that no offense of incest occurs as between grandson and grandmother, though it does between grandfather and granddaughter. Under section 38 of the statute, if a man is convicted of incest with a girl under the age of 21 (or of an attempt to commit the offense), the court may divest him of all authority over her. Under this English statute a prosecution for incest can be commenced only by the Director of Public Prosecutions or with the sanction of the Attorney General. Neither incest nor attempted incest is triable at Quarter Sessions but must be sent to the High Court. The maximum sentence for incest is generally seven years, but is life imprisonment in the case of incest with a girl under 13. The general maximum punishment for attempted incest is two years, but if the girl is under 13. the maximum for attempt has been raised to seven years by the Indecency with Children Act of & 9 Eliz. 2, c. 33. 1964] THE CRIME OF INCEST In the United States incest is always a statutory offense. 4 Sharing the English background of the punishment for incest being originally entrusted to ecclesiastical authorities, the crime never existed at common law in the United States and was created by statute at varying times in the different states. In Utah, where the Mormon community did not disapprove of incestuous relationships, incest did not become a criminal offense until a statute of The concept of incest as a crime in United States jurisdictions is generally much wider than in England. All the states add the grandmothergrandson and the uncle-niece and aunt-nephew categories to the list of relationships as found in England, and almost half the states include first cousins within the sphere of the crime. 6 (In England marriage between first cousins is legal and in practice quite frequent.) In some states, although marriage between first cousins is prohibited, their cohabitation does not amount to incest (e.g., Louisiana). 7 In a number of states relationship by affinity (i.e., through marriage) is sufficient to ground a prosecution for incest 8 So sexual intercourse between stepfather and stepdaughter (Georgia), 9 between stepmother and stepson (Indiana), 10 and even between brother-in-law and sister-in-law (Ohio) may amount to incest. The relationship must exist at the time of the intercourse, though in Alabama it has been held that intercourse between a stepfather and stepdaughter amounts to incest even after the death of the latter's mother.n In 1944 it was held in Mississippi that an adopted child was not a daughter within the meaning of the incest statute. 3 There was apparently no previous authority to be found on this point. 4 See MUELLER, LEGAL REGULATION OF SEXUAL CoNDuCr 44 (1961); WEInuERG, INCEST BEHAVIOR (1955). Utah Laws, ch. 7, 4 (1892). 6 Rhode Island specifically exempts Jews, who are permitted to marry within the degrees allowed by their religion. R.I. GEN. LAWS ch. 415, 4 (1938). 'LA. Civ. CODE tit. 4, ch. 2, 95 (1932); LA. CRIM. CODE (1943); State v. Couvillion, 42 So. 431, 117 La. 935 (1906). 8 E.g., Oto REv. CODE (1953); Grossenbacher v. State, 197 N.E.2d 382, 49 Ohio App. 451 (1934). GA. CODE , (1933); Jennings v. State, 79 S.E. 756, 13 Ga. App. 678 (1913). oind. STAT (1942); Baumer v. State, 49 Ind. 544, 19 Am. R. 691 (1875). 11 Stewart v. State, 39 Ohio St. 152 (1883). 12 Tagert v. State, 39 So. 293, 143 Ala. 88 (1905). '3 State v. Lee, 17 So. 2d 277, 196 Miss. 311 (1944). In some states intermarriage is a sufficient actus reus to constitute the crime of incest without necessity for proof of actual sexual intercourse (e.g., California).1 4 Apart from this possibility, proof of actual sexual intercourse (i.e., penetration though not necessarily emission) is required, and proof of lesser acts of sexual gratification is not sufficient.' 5 Again, in some states proof of mutual assent is required to constitute incest, so that incest and rape are by definition mutually exclusive (e.g., Missouri).' 6 Other jurisdictions follow the English rule that the consent of the female is not necessary and that incest and rape may overlap (e.g., Illinois). Under most statutes knowledge of the relationship on the part of the accused is an essential element of the offense, 8 but in some states knowledge is not necessary and incest thus becomes a crime of strict liability (e.g. Florida). 9 In all states incest is a felony or, at the least, a high misdemeanor. The position with respect to punishment has been summarized by Weinberg: Though most states have one penalty for incest offenders, regardless of nearness or distance of the kin, some states have two penalties. Colorado, Nebraska and New Jersey impose a heavier sentence upon the father than upon other male incest offenders. In North Carolina male offenders who are in the immediate family are charged with a felony and are liable to imprisonment for not more than fifteen years. Male offenders in uncle-niece and aunt-nephew relations are charged with a misdemeanor and are liable to a far milder penalty which is subject to the discretion of the court. In West Virginia, cousin marriages are annulled but the participants are not punished. In most states the male only is punished for incest but in some states both male and female are punished. In Tennessee two distinct statutes pertain to male and female offenders; the woman is an accomplice if she allows the act to continue for several months. In Texas the daughter is an accomplice if she cooperates. In Oregon the female must consent or the man is charged with 14 People v. MacDonald, 76 P.2d 121, 24 Cal. App. 2d 702 (1938). Is State v. Glindemann, 75 Pac. 800, 34 Wash. 221 (1904). 16 State v. Eding, 42 S.W. 935, 141 Mo. 281 (1897). 7 People v. Arendarcyzk, 12 N.E.2d 2, 367 Ill. 534 (1937). Is E.g., Ky. REv. STAT (1953); Maxey v. Commonwealth, 9 S.W.2d 1001, 225 Ky. 663 (1928). 19 McCaskill v. State, 45 So. 843, 55 Fla. 117 (1908). GRAHAM HUGHES[ [Vol. 55 rape. In North Dakota the woman is an accomplice if she is not forced. In Indiana the male participant must be over sixteen to be subject to punishment. 20 Maximum punishments vary greatly. 2 ' Incestuous rape is frequently punishable with life imprisonment. Incest, minus the rape element, carries a maximum sentence of 50 years in California 2' and until recently carried the same penalty in New Mexico. At the other end of the range Alabama,24 Delaware, 25 and Missouri 26 have maximum sentences of seven years. The most typical maximum is ten years.n The Proposed Official Draft of the American Law Institute's Model Penal Code classifies incest as a felony of the third degree with a maximum sentence of five years. Under this proposed draft incest is confined to marrying or cohabiting or having sexual intercourse with an ancestor or descendant or a brother or sister of the whole or half blood. The uncle-niece and auntnephew relationships are appended in brackets to indicate, as the note puts it, some doubt whether they belong in the category of felonious incest in view of the severity of the penalty and condemnation. The draft section stipulates that the relationships referred to herein include blood relationships without regard to legitimacy and relationship of parent and child by adoption. ' 2 In Illinois, where a new Criminal Code came into effect on January 1st, 1962, the offense is now divided into aggravated incest and incest. 29 The aggravated variety consists of a male person having sexual intercourse or engaging in an act of deviate sexual conduct with a person whom he knows to be his daughter. Daughter here includes an illegitimate relationship and also includes a stepdaughter or adopted daughter under the age of 18. The penalty is imprisonment from one to 20 years. Incest generally consists of a person's having sexual intercourse or performing an act of deviate sexual conduct with another person whom he or she knows to be his or her mother or son or brother 20 WEINBERG, op. cit. supra note 4, at MUElXER, op. cit. supra note 4, at CAL. PEN. CODE Now, under N.M. STAT. 40 A-10-3 (1961 Supp.), incest is a third degree felony with a maximum penalty of ten years' imprisonment. 2 ALA. CODE (1940). 2 DEL. Rxv. CODE 5257 (1935). 26 Miss. Rv. STAT (1959). 27 See MUELLER, LEGAL REGULATION OF SEXurAL CoNDucT (1961). MODEL PENAL CODE (Proposed Official Draft, 1962). 2 IIL. REv. STAT. ch. 38, 11-10, (1963). or sister either of the whole blood or the half blood. The penalty for this is imprisonment from one to ten years. Illinois has thus severely curtailed the range of relationships within which the crime is committed, for under the earlier law the crime extended to all those within the prohibited degrees of relationship for marriage. In those non-common law jurisdictions whose penal codes are now available in English translation, incest commonly features as a crime. 30 In France there is the general offense of an indecent assault committed by an ascendant relative upon a descendant who is not yet emancipated by marriage and an increased penalty for rape where the perpetrator is an ascendant of the victim. West Germany has a general incest offense of sexual intercourse between relatives in the ascending line, in the descending line, between brothers and sisters and also between relatives by marriage. There is also an offense of using for lewd purposes a person under 21 with whose guardianship or supervision the defendant has been entrusted. Norway has a battery of incest laws encompassing sexual relations with ascendant or descendant relatives, with brothers or sisters or relatives by marriage, another offense of indecent relations with relatives in the descending line (including stepchildren and foster children), and an offense of indecent relations with a person under 18 years of age who is subject to the defendant's authority or supervision. In Argentina there is no general offense of incest, but in the offenses of sexual intercourse with young persons and the corruption of minors there is an increased punishment where the defendant is a near relative. THE INCIDENCE OF INCEST Incest is a crime the incidence of which is extremely difficult to estimate. Professor Gerhard Mueller has said: Statistics on incest are not available but its occurrence is extremely low . 31 If this is taken to refer to offenses known to the police or brought to prosecution the statement is no doubt true, but with incest the dark figure of offenses that never come to the attention of the authorities is incalculable but probably extensive. In England and Wales the following figures can be 3 The information that follows is gathered from the AMEICAN SERIES OF FOREIGN PENAL CODES, edited by Professor Gerhard 0. W. Mueller, Director of the Comparative Criminal Law Project at the New York University School of Law. 21 MUELLER, op. cit. supra note 4, at THE CRIME OF INCEST extracted from the annually published criminal statistics.4 Incest Persons for Trial Annual Average s Incest OffensesKn own to theaverage Polic Annual Avere: The seemingly steep rise in the number of offenses in England and Wales in the last 15 years must be set beside the general rise in all crime, and sexual offenses in particular, in the same period. So, with respect to rape and other offenses against females, the annual averages of offenses known to the police are: t ,788 5, , , , ,412 14, Again, it Cannot be known with any certainty how far this general increase reflects a real rise in the crime rate and how far it is explicable by more efficient or more zealous law enforcement. But it can scarcely be doubted that a substantially significant increase is indicated. Even so, it is apparent that the volume of incest offenses accounts for only a tiny percentage of sexual offenses known to the police, only, as can be seen from the above tables, a little over two per cent of sexual offenses against women known to the police. But here, too, an important caution must be entered. Incest overlaps in England and in most jurisdictions with rape and other offenses of unlawful sexual intercourse with young girls. Some incest cases may thus not appear as such in official statistics, because the offenders have been prosecuted for alternative of-' fenses. Also it must be remembered that incest is not committed legally until proof of actual sexual intercourse is possible (or intermarriage in some American jurisdictions). Many situations of incestuous sexual familiarity falling short of actual n C enral STATISTIcs, ENGLAND AND WALES 1961, Cmnd sexual intercourse may thus come to be prosecuted as offenses of indecent assault, molestation, or impairment of morals. For these reasons even the apparently precise figures of the criminal statistics for England and Wales do not give a full picture of incestuous relationships known to the police. A point of interest is the comparatively high percentage of incest cases that are not proceeded with by the police. In the Report of the Enquiry on Sexual Offenses conducted by the Department of Criminal Science at Cambridge it is pointed out that of all offenders in indictable sexual offenses covered by the scope of the inquiry, eight per cent were not proceeded against, but that in the case of incest the percentage rose to 13.5 per centu This is no doubt explicable by the need for the sanction of the Attorney-General to be obtained for the prosecution if it is not conducted by the Director of Public Prosecutions. In New York City, the Mayor's Committee for the Study of Sex Offenses (1941) reported that in the decade incest cases accounted for three per cent of crimes for which sex offenders were indicted (i.e., 98 cases of incest). The Report, however, points out that, in a number of cases of impairing the morals of a minor, sexual intercourse had taken place with a daughter, son, or some other close relative, so that there were numerous cases where a charge of incest was possible but where some other charge was in fact preferred. 35 The reasons why the actual incidence of incest behavior may greatly exceed that of offenses known to the police are not difficult to suggest. The offense commonly takes place within a close family circle in conditions of secrecy. The act is sometimes consensual in circumstances of strong affection between the offenders. Even where the incest is procured by duress, the victim is often a young girl who will not have the strength of will and initiative to shake off a father's domination and bring the offense to the attention of the authorities. There is, too, the possibility that both parties concerned may be legally culpable so that both have an interest in concealing the matter. Even where father-daughterincest is discovered by a mother or brother, the knowledge that to report it may result in the imprisonment of the father with consequent economic hardship for the family may be a strong influence 3 SEXUAL OFFENSES, A REPoRT Or THE CAMBRIDGE DEPARRTMNT OF CRnIINAL SCIENCE 95 (1957). Id. at 39 et seg. 35 REPoRT op T=E Nzw YoRn (Crry) MAyoR's COmm=E rortrie STunY of SEx OFFENs~s 55 (1941). GRAHAM HUGHES [Vol. 55 in favor of concealment. Most important of all, perhaps, is the strength of the social taboo against incest, leading to a readiness to suffer the situation within the family circle rather than to expose the whole family, as it is felt, to shame. For all these reasons incest most often comes to the notice of the authorities when it has been detected by those outside the family, usually by neighbors or social workers. This occurs frequently when a daughter becomes pregnant as a result of an incestuous relationship with father or brother. 3 TBE INCEST TAmoo In contemporary discussion about the relativity of morals, incest has become a fashionable example of a constant prohibition, of an invariant taboo to be found in all known cultures at all times. Margaret Mead has said in a recent article that an incest rule prohibi
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