Incest

Background

Incest is the offense of having sexual relationships between family members or close relatives, including children related by adoption.[1] The crime of incest may involve any one of the following offenses: marriage, consensual cohabitation by unmarried persons, fornication (consensual intercourse), forcible rape, statutory rape, child abuse, and juvenile delinquency (sexual relations between minor siblings or cousins).[2] Generally, both parties to the activity in question may be charged with incest.[3]

Model Penal Code

The Model Penal Code article 230.2 addresses the crime of incest. Under this section, a person is guilty of incest "if he knowingly marries or cohabits or has sexual intercourse with an ancestor or descendant, a brother or sister of the whole or half blood [or an uncle, aunt, nephew or niece of the whole blood]."[4] "Cohabit" means living together under the appearance of being married. Moreover, this provision applies to adoptive, as well as blood relationships.[5] Incest is a felony in the third degree.[6]

Variation by Jurisdiction

Maryland

Under the Maryland Criminal Code section 3-323, a person may not knowingly engage in vaginal intercourse with anyone whom the person may not marry under the state's family law code (including grandparents, parents, offspring, siblings, or grandchildren).[7] A person who commits is guilty of a felony and on conviction is subject to imprisonment for not less than 1 year and not exceeding 10 years.[8]

Arkansas

In Arkansas, incest is a class C felony. Incest, under the Arkansas criminal code section 5-26-202, is when an individual, being older than 16 years old, purports to marry, has sexual intercourse with, or engages in deviate sexual activity with another person sixteen (16) years of age or older whom the actor knows to be (1) an ancestor or descendant, (2) a step or adopted child, (3) a sibling (half or whole blood), (4) an uncle, aunt, niece or nephew, or (5) a step or adopted grandchild.[9]

Common Defenses

Consent of the victim is never a defense to an accusation of incest. Low mental capacity is usually not a valid defense to the charge of incest. However, it may be considered by the trier of fact to speak to the ability of the accused to form the requisite intent to perform an act of incest. Generally, there is also a statute of limitations to the crime of incest, so if that period is over, the accused will have a statute of limitations defense to the incest charge.[10]

Foreign Jurisdictions

Germany

The German Criminal Code section 173 codifies the offense of incest. A person who engages in sexual intercourse with a descendant relative is liable for imprisonment for up to three years or a fine. A person who engages in sexual intercourse with an ancestral relative is liable for imprisonment for up to two years or a fine. Siblings who engage in sexual relations are also subject to an imprisonment term for up to two years or a fine. The German Criminal Code does not, however, hold minors (i.e. individuals under 18) liable for crimes of incest.[11]

Canada

Section 155 of part V of the Canadian Criminal Code addresses the offense of incest.[12] Under this section, a person commits incest when he or she knowingly has sexual intercourse with another person who is related by blood (i.e. parent, child, brother, sister, grandparent or grandchild).[13] The crime of incest is punishable by imprisonment for up to 14 years. It is a defense to the charge of incest if the accused was under restraint, duress or fear of the person with whom the accused had the sexual intercourse at the time the sexual intercourse occurred.[14]


See Crimes

Notes

<references>
  1. Black's Law Dictionary, 9th Edition (2009)
  2. Black's Law Dictionary, 9th Edition (2009)
  3. Black's Law Dictionary, 9th Edition (2009)
  4. Model Penal Code, Article 230.2 (2001)
  5. Model Penal Code, Article 230.2 (2001)
  6. Model Penal Code, Article 230.2 (2001)
  7. Maryland Criminal Code, § 3-323 (2002)
  8. Maryland Criminal Code, § 3-323 (2002)
  9. Arkansas Criminal Code, Title 5, Subtitle 3, § 5-26-202 (2003)
  10. Joseph J. Bassano, Incest Defenses- American Jurisprudence, Nov. 2010
  11. http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html
  12. http://laws-lois.justice.gc.ca/eng/acts/C-46/section-155.html
  13. http://laws-lois.justice.gc.ca/eng/acts/C-46/section-155.html
  14. http://laws-lois.justice.gc.ca/eng/acts/C-46/section-155.html