Incest laws are an example of "Big Government".

Great Debates
121

Individuals can draw the line wherever they please in their own behavior. The question is where government is allowed to draw lines for everybody, and what reasoning those legal restrictions are based on.

Personally, I think incest is ewwww but I know of no valid reason for legally prohibiting it between consenting adults, any more than any other (nonviolent) sexual acts should be legally prohibited between consenting adults. (However, it might be appropriate to scrutinize such relationships more closely for confirmation of valid consent. For example, a parent who’s kept a dependent child emotionally stunted and helpless until the age of 18 and then begins a superficially “consensual” sexual relationship with the adult child should not get away with that kind of exploitation.)

Couples who form incestuous relationships without knowing they’re incestuous, on the other hand, will probably be perceived as more sympathetic. If, e.g., two siblings separated in early childhood meet as adults and fall in love without realizing their biological relationship, then it doesn’t seem appropriate to stigmatize them as criminals when they do find out about the relationship, in addition to all the other traumas that the realization will doubtless create for them.

So, in principle I’m against the criminalization of incest between consenting adults, although in practice I don’t think it’s a significant social issue, because very few people actually want an incestuous relationship.

In principle I’m also against the legal prohibition of incestuous marriage between consenting adults, because any unmarried consenting adult should be able to marry any other unmarried consenting adult, at least as far as governmentally recognized civil marriage is concerned. (Let’s leave the whole question of polygamy aside for now and just consider what’s a fair and consistent policy for monogamous two-person marriage.) There should be scrutiny of genetic relationship for understanding possible reproductive consequences, as there is scrutiny of hereditary diseases for that purpose, but I don’t think it’s the government’s business in this modern contraception-enhanced world to permit or forbid civil marriages on the basis of possible reproductive consequences.

But in practice, I think incestuous marriage is even less of a significant social issue than incestuous sex. One of the functions of civil marriage, as noted above, is to provide two unrelated adults with a recognized familial status, so they can be each other’s next of kin, etc., for legal purposes. Incestuous partners already have a recognized familial status, so that aspect of marriage isn’t as important in such cases. And again, there will probably always be only a vanishingly small subset of people who actually want an incestuous marriage.

So my positions on incest-related legislation stack up more or less as follows:

Decriminalizing incest between consenting adults, with appropriate provisions, where it’s not already legal: Would vote for, would not actively promote or advocate unless I had reason to think that some people were being genuinely adversely affected by the current status of the law.

Criminalizing incest between consenting adults where it’s not currently illegal: Would vote against, would actively protest if I knew of people who would be adversely affected by it.

Removing prohibitions on incestuous marriage between consenting adults, with appropriate provisions: Would probably vote for, would not spontaneously advocate.

122

This logic could be used to criminalize/ban homosexuality, too.

123

The reason the prohibition is maintained (aside from the “ewww” factor, which most people here rightly reject) is that close family relationships typically and presumptively raise question marks concerning the validity of “consent”.

In short, you if you saw a parent starting a sexual relationship with their 18 year old child, it isn’t usually necessary to enquire into whether that kid was “a dependent child emotionally stunted and helpless”, because pretty well any example of a sexual relationship between an 18 year old child (16 in Canada) and a parent is likely to meet that definition.

In fact, incest is a reasonably sizable social problem, and is almost always associated with a previously existing history of child abuse: hence the reasonableness of legally prohibiting it. It would be very unusual for a parent to behave totally normally and appropriately towards their child all their life until they are 18 (or 16), and then the pair suddenly and spontaneously decide, at that age, to embark on a sexual relationship. It could happen that way, but it usually doesn’t. The common patent of parental incest at least is that it starts early and continues until the child develops enough independence and self-esteem to put a stop to it - which is sometimes problematic, as early childhood abuse tends to ruin self-esteem.

The article deals only with father-daughter incest, but presumably the same points occur in other varieties of parental incest as well:

http://psycnet.apa.org/journals/pro/12/1/76/

124

Being whatever by nature is irrelevant. I know it’s a big thing in the USA to point out that gays are born this way and that it’s not a choice, because it proved an useful argument in the specific case of the USA(*), but it’s not a good reason to decide whether or not people can have sex together. Personnally, I think it’s an extremely bad argument because if it’s shown tomorrow that it’s not so much of a factor, there will be a backlash.

If pedophiles are born this way, is it a good reason to allow pedophilia? If being gay is a choice, is it anybody else business to decide whether or not you and me should have sex together? If the answer is no and no, then it doesn’t matter whether or not people are incestuous by nature.

(*)because of the normative religious discourse there, while it originally wasn’t so well received in the French gay community, for instance, since from birth could mean that gays are different, genetically defective, etc…

125

Not wholly. It’s certainly not decisive; I already gave the example of pedophilia, which might possibly be a “natural” kind of biological/psychological programming.

We, as a society, tend to want to protect classes of people who cannot chose their classification. This is why we protect racial categories more scrupulously than we protect golfers or motorcyclists. Nature is somewhat relevant to our ideas of civil rights.

126

Good point, and similar to many arguments against decriminalizing polygamy and prostitution: i.e., the rights of the comparatively small number of people who engage in it non-coercively yield to the necessity of protecting the larger number who are being abused and exploited.

Maybe we could retain a ban specifically on parent-child incest, with possible exceptions for identifiably harmless cases? E.g., if a 40-year-old woman happens to meet her 55-year-old biological father who gave her up to closed adoption when he was a teenager, and they fall in love, I’m not sure that there’s any presumptive reason to question the validity of consent there.

Yes, I should have clarified that there are very few adults who have, and desire to openly continue, a genuinely consensual incestuous adult relationship. There are, alas, quite a lot of adults who want to secretly continue an abusive incestuous relationship with a child or former child over whom they have authority.

127

And do ,you think that if it’s tomorrow demonstrated that gays are gays by choice, it reduces their right to have homosexual sex by even one iota? Or since people can freely chose to get married with their sexual partner, is it a good reason to limit the right of people to have non-marital sex even by one iota?

Or should people be allowed to have sex with whomever they want whenever they want as long as nobody is harmed in the process?

128

No…but it might reduce (by one iota) my willingness to expend government resources to protect that right, as in guaranteeing that they can’t be fired because of it, can’t be excluded from housing and employment, etc.

(Just as it is your right to play golf…but the government doesn’t protect the civil rights of golfers. If a golfer walks into my store, I can say, “We don’t serve your kind here.”)

129

:dubious: Yabbut… religion, for example, is also not a matter of genetic determinism, but we’ve got some pretty strong Constitutional principles against discrimination on the basis of religion.

I agree that government shouldn’t get into the business of protecting individuals from every possible kind of discrimination based on any characteristic whatsoever, but as protected categories go, religious affiliation has been a fairly fundamental one for our country. I see no reason why sexual orientation and gender identity, along with race, ethnic heritage, biological sex, etc., shouldn’t qualify as similarly protected categories in antidiscrimination legislation even if not all of them turn out to be completely genetic in nature.

130

Woudl you extend that to discriminating in housing and employment on the basis of religions? Because people definitely choose their religions, they’re not innate. Or to discriminate in housing and employment on the basis of (hetero) marital status or dating habits?

ETA: Ninja’d by Kimstu.
I OTOH am willing to expend public resources in combatting any sort of housing/employment discrimination based on anything that is not relevant to whether they can do the job or whether they are good tenants.

And yes, I realize that then conflicts with my earlier stated position that legalizing something does not prevent you from expressing social censure of it… but I am happy to have the expression of social censure limit itself to you saying to their faces “I disapprove of you” without being able to actually do a thing to punish them for it :stuck_out_tongue:

131

True, and very good point. That’s something that history made necessary. The Framers remembered such things as the English Civil War, or Bloody Mary’s re-imposition (by deadly force) of mandatory Catholicism, and really decided we didn’t want that here. So freedom of religion was enshrined (yay!) and is vigorously protected today.

I didn’t say that natural classifications were the only basis for assigning protection; I don’t even say that the correlation is “very strong,” just that there is a correlation. Race, national origin, sexual orientation, handicapped status, etc. are natural classifications that (I believe) need strong legal civil rights protections.

Pedophilia might very well be a natural classification, but we aren’t about to legalize that kind of activity. There are limits, and perhaps they are arbitrary, or perhaps they’re rationally founded.

ETA:

Exactly so! I hate golf, and will sneer and snark at golfing – and golfers – within some moderate limits of etiquette – and I would even vote against expending public monies to maintain civic golf courses. But, ultimately, that’s mostly just talk, and talk is cheap. Also free!