Elements of Incest

Incest is defined as the marriage or sexual intercourse between persons who are related within a particular degree of consanguinity or affinity prohibited by law, or marriage between persons that is considered to be void[i].  Some of the prohibited relationships are relationships by blood, while others are relationships by marriage[ii].  Incest is recognized as a statutory crime.  The laws against incest intend to protect the integrity of the family[iii], welfare of minor children and to prevent genetic mutations.

There are certain elements that constitute the crime of incest such as:

  • Sexual intercourse with a person within a degree of consanguinity where marriage is prohibited;
  • Knowingly having sexual intercourse with persons within the following degrees of consanguinity[iv].

However, the consent of both parties is not an essential element to the crime of incest.  If the party charged had sexual intercourse with a female related to him within the degree of consanguinity, then such person is guilty of the crime of incest.  It is immaterial that whether the intercourse was with or without the consent of such female[v].

In other words, if the parties to sexual intercourse are within the prohibited degrees of consanguinity, then the male may be convicted of incest, even though he accomplished the act without consent of the female and against her will[vi].  Similarly, a single act of intercourse between persons within the prohibited degree of relationship is sufficient to constitute the crime of incest by intercourse.

It is to be noted that if a woman is too young, then regardless of her actual assent to the incest, she cannot be said to have willfully and willingly joined in the intercourse, and therefore she is not an accomplice[vii].

However, under some statutes the consent of both parties is necessary to constitute the crime of incest, and if the illicit connection is accomplished by force, or had with a person who is legally incapable of consenting, the defendant cannot be convicted of incest, although he may be convicted of rape.

Some statutes states that a person is guilty of incest when s/he marries or engages in sexual intercourse with a person s/he knows to be related to him/her, either legitimately or illegitimately, as an ancestor, descendant, brother or sister, uncle, aunt, nephew, or niece[viii].  This protection extends to step relationships also because sexual activity in step relationships is equally disruptive of the family as sexual activity between blood relations[ix].

It is to be noted that the testimony of the victim of a sex offense alone is sufficient to prove the elements of the offense, even if a state does not introduce medical, scientific, or physical evidence to prove the commission of the offense[x].

Generally, age of a victim is not considered as an element of the offense of incest.  Likewise, the date and venue of the offence is not a specific element of incest.  It is to be noted that no specific criminal intent other than knowledge or relationship is required to constitute the crime of incest[xi].

However, general intent to commit the prohibited act must be proved.  Therefore, whether defendant entertained an amorous design toward the victim and was predisposed to engage in sexual intercourse with her, or whether the victim consented to sexual intercourse with him, is irrelevant.

If a child from infancy or any other cause is unable to consent, she is not an accomplice.  However, a defendant cannot be convicted upon her testimony alone[xii].  Whereas, an adult female who engages in intercourse with her father can be an accomplice to the incest and her testimony then requires corroboration[xiii].

Whereas, some statutes require specific intent on the part of the accused.  Aggravated incest requires the state to prove the defendant either married or engaged in specified sexual conduct with a person under 18 whom the defendant knew to be of sufficient familial relation.   Intent to arouse or satisfy the sexual desires of either the child or the offender is an example[xiv].

[i] Commonwealth v. Ashey, 248 Mass. 259 (Mass. 1924).

[ii] Commonwealth v. Rahim, 441 Mass. 273 (Mass. 2004).

[iii] Heikkila v. State, 352 Ark. 87 (Ark. 2003).

[iv] State v. Hargrove, 108 N.M. 233 (N.M. 1989).

[v] People v. Stratton, 141 Cal. 604 (Cal. 1904).

[vi] Gaston v. State, 95 Ark. 233 (Ark. 1910).

[vii] People v. Tobias, 25 Cal. 4th 327 (Cal. 2001).

[viii] Bagnardi v. Hartnett, 81 Misc. 2d 323 (N.Y. Sup. Ct. 1975).

[ix] Heikkila v. State, 352 Ark. 87 (Ark. 2003).

[x] State v. Johnson, 735 So. 2d 105 (La.App. 5 Cir. Mar. 30, 1999).

[xi] Bowden v. State, 538 So. 2d 1224 (Ala. Crim. App. 1987).

[xii] State v. Stalker, 169 Iowa 396 (Iowa 1915).

[xiii] People v. Fuller, 138 A.D.2d 956 (N.Y. App. Div. 4th Dep’t 1988).

[xiv] State v. Hutchcraft, 242 Kan. 55 (Kan. 1987).


Inside Elements of Incest