Constitutionality of Prohibition on Incest


The term incest means the “marriage or sexual intercourse between persons who are related within a particular degree of consanguinity or affinity prohibited by law, or between persons so closely related that a marriage between them would be void[i].”  Thus, a sexual conduct by a natural parent with his/her child, by a stepparent with his/her stepchild, or by a guardian with his/her wards amounts to a crime of incest.

Consensual sex has constitutional metes and bounds and a statute penalizing incest cannot be held unconstitutional on the grounds of denial of substantive due process.  Courts have held that there is no fundamental constitutional right to engage in private acts of consensual sexual intercourse and government can regulate individual conduct in the larger interests of preserving public health, safety and for upholding public morality.  Such restrictions are neither unreasonable nor arbitrary.

Courts generally apply a rational basis test for assessing a statute’s constitutional validity. “A legislative enactment will be deemed valid on due process grounds if it bears a real and substantial relationship to the public’s health, safety, morals or general welfare[ii].”  Thus, the court has held in one case that the fact that an accused is not permitted to assert as a defense his stepchild’s consent to the prohibited conduct does not make the statute unconstitutional as a denial of substantive due process[iii].

The legislature had enacted the incest statute with myriad objectives including prevention of mutated births, promotion of family harmony and protection children from abuse of parental authority.  Given the noble objectives in the larger interests of the society, the statute’s validity cannot be questioned for violation of equal protection clause.  Society cannot function in an orderly manner when age distinctions, generations, sentiments and roles in families are in conflict and for the same reason, prohibition of sexual intercourse with one’s stepchild as well as one’s natural child bears a rational relationship to a legitimate governmental objective and is not violative of equal protection[iv].

However, courts have held that a father and mother cannot be discriminated on the basis of sex.  A male can be guilty of aggravated incest and a female committing the same conduct with a minor son is guilty of incest[v].

Similarly, the court has held that allegations that an incest victim was flirtatious with her stepfather, but was not prosecuted for their illicit sexual conduct, “does not render the prosecution of the accused for incest a violation of the accused’s right to the equal protection of the law, where the accused does not allege that he was prosecuted because of some unjustifiable standard based upon intentional and purposeful discrimination[vi].”

The constitutionality of a statute is often challenged on the basis of vagueness.  A statute with criminal sanctions is unconstitutional if it is vague[vii].  Vagueness is presumed if the meaning of the statute is not clear to the average citizen and due process requires that the public have notice of the prohibited conduct[viii].

The Constitution stipulates that an accused shall be informed of the nature and cause of the accusation against him/her.  Hence, a penal statute should describe unlawful conduct with sufficient clarity that “ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto.”

For instance, a state statute prohibiting incest punishes the following conduct: Sexual intercourse, sexual battery, aggravated sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the state laws.  The statute also punishes any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of the child, the offender, or both.  While determining the question of vagueness, the court held that the statute is not vague since clearly describes the exclusive classes of offenders and victims and also describes the unlawful conduct with sufficient particularity and clarity so as to enable ordinary persons of reasonable intelligence to understand its meaning and act accordingly[ix].

Similarly, the court held that a statute defining incest as sexual intercourse with “another nearer of kin to the actor than first cousin, computed by rules of the civil law, whether of the half blood or the whole blood is not unconstitutionally vague, inasmuch as the civil law method for calculating degrees of kinship is well settled[x].”

Also, protection against expost facto laws is available in the case of incest.  Thus, where the crime of sexual abuse by a custodian did not exist at the time the conduct alleged to have constituted the crime took place, a conviction for that crime violates ex post facto principles on the ground of fairness[xi].

[i] Haller v. State, 217 Ark. 646 (Ark. 1950)

[ii] State v. Benson, 81 Ohio App. 3d 697, 701 (Ohio Ct. App., Scioto County 1992)

[iii] State v. Benson, 81 Ohio App. 3d 697 (Ohio Ct. App., Scioto County 1992)

[iv] State v. Kaiser, 34 Wn. App. 559, 566 (Wash. Ct. App. 1983)

[v] People v. Yocum, 66 Ill. 2d 211 (Ill. 1977)

[vi] Murphy v. State, 195 Ga. App. 878 (Ga. Ct. App. 1990)

[vii] State v. Farris, 412 So. 2d 1039 (La. 1982)

[viii] State v. Stilley, 416 So. 2d 928 (La. 1982)

[ix] State v. Flores, 669 So. 2d 646 (La.App. 2 Cir. Feb. 28, 1996)

[x] State v. Wilson, 524 N.W.2d 271 (Minn. Ct. App. 1994)

[xi] State v. George W.H., 190 W. Va. 558 (W. Va. 1993)