Defenses


Incest is an illegal sexual relationship between close relatives.  Incest is illegal in the state where it takes place.  In most states, it is a class C or class D felony.  When the victim is a minor, prosecutors often file charges as rape or sodomy.  General defenses in sexual offenses like marriage, age, or consent are not a defense to a charge of incest.

In most of the states, consent is not accepted as a defense to an offense of incest[i]. A defendant’s guilt for incest is measured by his knowledge and intent[ii].  Additionally, consent is not a required element of intent in incest[iii].  When the incestuous fornication is shown to have been committed by the accused with full knowledge of the relationship between himself and the other participant, he can be convicted of the crime of incest.  However, the proof of absence of a victim’s consent is enough to charge the accused with rape.

Facts such as age, mental condition, mistake, or intoxication usually negate the capacity to formulate an intention to commit crime[iv].  In a charge of incest, low mental capacity of the accused is not a defense[v].

A person commits the crime of incest, when the accused engages in sexual intercourse or deviate sexual intercourse with ancestor or descendant.  It includes a stepchild, brother, sister, uncle, aunt, nephew, or niece.  Adoption usually severs the relationship between the child and the natural parents.  After adoption, the adoptive parent is considered to be the parents of the adopted child.  The intention is to prevent the natural parents from interfering with the family life of the adoptive home.  However, one’s biological child is a descendant, regardless of legal enactment.  A biological child is the descendant for purposes of the incest statutes.  An adoption statute cannot erase lineal consanguinity[vi].  As such, in a charge for incest, one cannot raise a plea that there exist no relation between the accused and victim after adoption.

Moreover, it is not a defense to state that the marriage is allowed by custom or practice.  It is a general rule of law that a marriage valid where celebrated is valid everywhere.  However, there are exceptions to this general rule.  A marriage which the lawmaking power has declared void shall not be valid.  Certain types of marriages are prohibited by the public acts of the forum for reasons of local distinctive policy.  Most of the statutes prohibit a son to marry his mother or step-mother.  One cannot marry the sister of his father or mother, or the widow of his uncle.  All marriages violating these rules are declared incestuous[vii].

A prosecution commences with the return of an indictment and not with the onset of trial.  In criminal cases, the statute of limitation runs from the time of the criminal act to the time of indictment[viii].  The date of the offense need not be proved with preciseness.  However, it must be proved that the offense occurred during the period of limitation[ix].  The offense of incest is subject to the statute of limitations.  The prosecution arguing a case of incest must prove that the accused committed the offense within the statutory period.  A person charged with a crime of incest can plead the statute of limitations as a defense.

Offenses of sexual assault and incest are the same offenses for double jeopardy purposes[x]. However, acquittal on a charge of rape is no defense to a prosecution for incest.  Under the double jeopardy clause, a retrial is permissible when a conviction is reversed on appeal.

[i] Hagan v. State, 1993 Mont. Dist. LEXIS 640 (Mont. Dist. Ct. 1993).

[ii] State v. Winslow, 30 Utah 403, 407 (Utah 1906).

[iii] State v. Montoya, 910 P.2d 441 (Utah Ct. App. 1996).

[iv] Terry v. State, 465 N.E.2d 1085, 1088 (Ind. 1984).

[v] Neaveill v. State, 474 N.E.2d 1045, 1048 (Ind. Ct. App. 1985).

[vi] Hendry v. State, 571 So. 2d 94, 95 (Fla. Dist. Ct. App. 2d Dist. 1990).

[vii] Osoinach v. Watkins, 235 Ala. 564, 566-567 (Ala. 1938).

[viii] Hall v. Hopper, 234 Ga. 625, 626 (Ga. 1975).

[ix] McLamb v. State, 176 Ga. App. 727 (Ga. Ct. App. 1985).

[x] USCS Const. Amend. 5.