Louisiana: Stop jailing lovers for Adult Consensual Incest (ACI)
Louisiana: Stop jailing lovers for Adult Consensual Incest (ACI)
The present Louisiana laws against Adult Consensual Incest, are cruel, unjust, highly discriminatory, unconstitutional ( because they breach the individual's right to the pursuit of happiness), and in breach of United Nations human rights laws that protect the right of the individual to sexual autonomy and the right to have a family. Louisiana, and other US states that also maintain such out-dated laws, need : to amend the law against incest so that it is not applicable in the cases where participants are both consenting adults over the age of 21. In addition, for those who have been convicted in such circumstances to have both the custodial and non-custodial elements of their sentences reviewed with a view to being quashed in light of any change to the law.
The background and argument.
The law in its present form is inappropriate, unfair, ineffective and discriminatory. The existing law of incest in Louisiana punishes consensual adult incest (ACI) with imprisonment with hard labour up to 14 years , thus breaching the spirit and intent of UN rules about human rights, and the spirit and intent of the Universal Declaration of Human Rights, especially the right to personal and sexual autonomy;
The Criminal Code of Louisiana (1985)
155 (1) Every one commits incest who, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person.
Marginal note: Punishment
(2) Everyone who commits incest is guilty of an indictable offense and is liable to imprisonment for a term of not more than 14 years and, if the other person is under the age of 16 years, to a minimum punishment of imprisonment for a term of five years.
Marginal note: Defence
(3) No accused shall be determined by a court to be guilty of an offense under this section 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.
Definition of brother and sister
(4) In this section, brother and sister, respectively, include half-brother and half-sister.
Note: Wikipedia appears to have incorrectly stated the maximum penalties of incest in Louisiana as ‘5-30 years’ and cites the following document as evidence. It appears to have confused the ‘30 year time limitation from the time the victim is 18 yrs’ with the actual maximum penalty of 20 years. (“fine not to exceed $50,000 and/or imprisonment not less than 5, no more than 20 years.”)
State Criminal Incest Statutes
State : Louisiana (2008)
La R.S. §14:78 La R.S. §14:78.1 LA. Code Civ. Proc. Ann. art. 571.1
Prohibited Relationships: Ascendant or descendant, brother or sister, uncle or niece, aunt or nephew (with knowledge), related by consanguinity either whole or half blood
Prohibited Act (s): Marriage (unless married legally in another state) or sexual intercourse
Age to Commit: Unspecified
Classification, Penalty, or Jurisdiction : Imprisonment up to 15years when between ascendant and descendant or brother and sister Imprisonment up to 5 years, or up to $1000 fine (or both) if between uncle and niece or aunt and nephew; 30 year time limitation from the time the victim is 18 yrs
Evidentiary Rules Aggravated Distinctions: victim under 18 involving any other involvement of a child in sexual activity and related to offender (biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece); fine not to exceed $50,000 and/or imprisonment not less than 5, no more than 20 years.
Public fears, prejudice and bigotry about Adult Consensual Incest ( ACI ) are mostly due to ignorance created over many years mostly by the church and church-influenced governments and newspapers, in much the same way as public fears and bigotry about homosexuality were created. In general, societies have a tendency to target isolated individuals and to attack anything perceived to be different as a threat.
In October 2009, Congress passed the Matthew Shepard Act, which expanded the definition of hate crimes to include gender, sexual orientation, gender-identity, and disability. It removed the requirement that the victim of a hate crime be engaged in a federally protected activity. President Obama signed the legislation on October 28, 2009.
Thus the imprisonment of ACI people (ACI is a sexual orientation) appears to be a hate crime. Lawrence v. Texas, 539 U.S. 558 (2003) is a landmark decision by the United States Supreme Court and according to Professor Vera Bergelson , it means that adult consensual incest must be decriminalized (Bergelson p 53 Crim Law and Philo (2013) 7:43-59), in those states where it is illegal.
On 27th June 1969 Royal Assent was given to an amendment which decriminalized all private sex acts between consenting persons aged 21 or more and married couples.
The Law Reform Commission of Canada (LRCC) was established by the Canadian Federal government in 1970 which has spent much of its time formulating and presenting to the public a set of far-reaching proposals for the updating of the nation’s criminal code, including the area of sexual offenses, recommended that incest be decriminalized.
In the 1980 ‘Current Issue Review’ entitled ‘Sexual Offenses’ Donald McDonald of the Library of Parliament’s Research Branch of the Law and Government Division, wrote a review of the situation at that time.
He began his review of the current state of Canadian law, but much of what he said is applicable also to Louisiana.
“The present structure of the criminal law in relation to sexual offenses, essentially
unchanged since Confederation, stands as an edifice to a set of values and a view of sexual motivation and morality that no longer exist.”
“There has been a virtual revolution in basic societal attitudes towards sex. The criminal law is seen by many as being at once both unresponsive to genuine problems in a society where women are no longer isolated; and superfluous in areas where the state has no business, or if it does, it should not be in the form of the criminal sanction”
In relation to the law on incest he wrote (see page 11)
“Incest is sexual intercourse between parent and child, brother and sister, half brother and half sister or grandparent and grand- child.
(s. 150) It should be noted that solely sexual intercourse is prohibited and any other form of sexual contact between such blood relatives, as long as consensual and between individuals
of sufficient age, is not illegal. Incest was generally not a crime at common law, and was first made a criminal offense in 1892. Before that it was a church offense and dealt with by local authorities and public opinion.
The Law Reform Commission proposes a return non-criminal treatment, except that family courts and social agencies would be entrusted with the offense. The Commission contends
that incest is usually non- violent. Its main deleterious effects are severe psychological damage to children and destruction of the family. However, disclosure in the criminal process leads to public humiliation, and often no treatment for the offender. This, and fear of punishment, leads to a reluctance to report the offense. The law on incest is a blunt and inexact instrument, hindering disclosure and inadequately dealing with those it prosecutes. Such behaviour rarely occurs in isolation from other family problems, and many would prefer to see it handled by non-legal agencies. The solution proposed is decriminalization.”
This recommendation was one of the few in the Law Reform Commission Report which met with widespread public condemnation. Many feared that decriminalization would make incest seem more acceptable and any deterrent effect would evaporate,
or that Parliament would be requested to approve marriages between blood relatives, raising the danger of genetic inbreeding.
The situation regarding incest in Louisiana in many ways resembles the situation in Scotland and Canada, both also maintaining out-dated incest laws while ignoring changes in public opinion and growth in scientific knowledge both in genetics and medical technology.
As with my petition to the Scottish parliament I base my argument for the de-criminalization of incest for consenting adults over 21 on four points:
1.The Genetic Argument.2. Public Opinion; 3. Protection of the child and other family members; 4. The Maintenance of Family Solidarity and Cohesion; Point One – Public Opinion.
Point One : The Genetic Argument
The main justification used for establishing and then maintaining outdated incestophobic laws against ACI was and is the ‘Genetic Argument,’ which became popular around the same time in the 1890s as Darwinian theories, the matra of ‘survivial of the fittest being’ used by the pseudo-scientific proto- eugenics movement that has long been discredited along with the associated ideas of Corporatism / Fascism, with its total state surveillance supervision and regulation of every aspect our private lives.
However the criminalization of ACI sexual relationships because of a purported higher risk of birth defects in children of close kin breeding does not stand up to rational argument.
According to Dr James A Roffee's paper (Incest in Scots Law: Missed Opportunities in the Scottish Law Commission Review),
"The genetic argument has been assessed and disregarded in England and Wales. A number of reasons in support of such a conclusion include: that genetics has not been used as a past rationale; that there is great doubt as to the greatly increased risk of a variety of diseases would justify a criminal offense; and that it was not significant in achieving the aims of protection of family and children. If the incest law was justified on the grounds of genetic defects of potential offspring, and thus override the sexual autonomy principle, not only would this be a relatively remote concern it would also have the added implication of labeling any defect caused to the offspring as a legal wrong."
Since all people who mate have a 2-3% chance of having a child with a birth defect, (consanguineous couples are only marginally higher) then consistency in the law would require criminalizing "all bad fruit-producing intercourse" and thus would criminalize the large number of sexual acts that produced children with birth defects. It would obviously be unjust and unfair to convict the parents of the 6% of children born with birth defects each year world-wide. So why imprison a minuscule number of people in ACI relationships who only have a slightly higher risk of having a child with a birth defect than the general population does?
A New Zealand Law Commission paper mentions the genetic argument as a reason for the continuation of the law on incest in New Zealand but ends with this admission:
“296 Logically, genetics cannot be the sole determining factor, as contraception can prevent the birth of children to such relationships.”
The USA was recently rated as 20th in the world in the rankings of the countries with the lowest rate of children born with birth defects, with a rate of 47.8 per 1000 live births.(Note 1) But Portugal, the Netherlands and Israel , a countries where ACI is not a crime, rated 21st (47.9.) 22nd ( 48.0) and 23rd (48.5), only marginally behind the USA.
But ahead of USA in the ranking were six countries where ACI is legal: Slovenia, 15th, Belgium was 10th, Spain 7th, Italy 6th, Russia 5th, and France, which legalized ACI in 1810, over 200 years ago, was 1st!
France, which has the lowest rate of children born with birth defects (39.7) in the world, decriminalized both ACI and homosexuality in 1810. The USA, with a rate of 47.8 children with birth defects per 1000 live births, has now legalized homosexuality and gay marriage in all 50 states, but still makes ACI a crime in 47 states.(i.e. all except New Jersey, Rhode Island and Michigan).(Note 2)
Point Two: Public Opinion
Public opinion has changed dramatically since the 1980s, after both the Royal Commission into Human Relationships in Australia and the LRCC in Canada in 1978 made many recommendations including the legalization of abortion, homosexuality and adult consensual incest. Many western countries have passed legislation that has reflected the liberalization of attitudes to sex and relationships but this has not extended to ACI relationships. France, and many others that adopted the Napoleonic code, legalized consensual adult incest about 200 years ago along with other formerly taboo practices. In the past, fornication, adultery, divorce, prostitution, abortion, homosexuality were all either sins or illegal or both. In the majority of modern countries, most of these activities are now legal, (if not moral according to some churches). People are no longer jailed for breaking these former religion–based taboos. More people think scientifically and have degrees in science rather than theology.
People's attitudes to human rights have changed a lot, especially with greater awareness of the UN rules about human rights, more widespread knowledge of the Universal Declaration of Human Rights and especially the right to personal and sexual autonomy; fewer people, even the religious, but also the scientifically minded can afford to be so very moralistic and judgmental as in the past, and most people are better educated, travel to more distant places more often and are more tolerant and understanding of a great diversity of cultures and types of sexual relationships than ever before. People want and expect to have greater freedom of thought and choice and that they know they have a right to have the decisions they make about their lives - respected.
When the law on incest was written in Louisiana, no public opinion polls on adult consensual incest were ever undertaken. Any claims that the law on incest was based on public opinion are dubious at best.
The public attitude to incest throughout the 20th century in Louisiana has more than likely been made ignorant of the law and made by the media and education system to conflate any healthy, happy and consensual adult incest (non-coerced, non-abusive) relationships with the abusive, coercive, child abuse type of incest. This ambiguity of meanings of the word incest may have been exploited in any recent reports on incest, giving the impression that all incestuous acts are tainted with one universally negative meaning. Few people in Louisiana have been made aware of the fact, for example, that French law has allowed ACI since 1810 or that France has the lowest incidence of children born with birth defects in the world. This fact, these important bits of truth have been denied to the public, surreptitiously and subtley brainwashed from birth into thinking that all modern countries are opposed to and criminalize adult consensual incest, (which they indubitably are not and do not), and that state imposed incestophobic abuse and torture( imprisonment is abuse and torture) is ‘normal’ and that incestophobia is ‘normal.’
As was the case with other types of taboo relationships in the past,(homosexual, inter-racial) incest was made into a taboo and stigmatized, largely by the church, but also by church-controlled governments masquerading as modern secular democratic states.
Point Three - Protection of the child and other family members
By definition, ACI does not involve anyone under the age of 21. Therefore it involves only adults and excludes anyone under the legal age of consent, and even those a bit older who still may be psychologically immature, and vulnerable to abuse but legally adults in every respect. Children are protected from sexual and other abuse by other laws, and there is no need for the double criminalization of the offense. In other countries, such as England and Australia the crime of 'child sexual abuse' has replaced the more stigmatizing and psychologically damaging term 'incest'. Victims of child sexual abuse do not benefit from being stigmatized when associated with the taboo word 'incest.' (Another reason why the present law needs reforming urgently).
Punishing ACI couples does nothing for the protection of the child or other family members. If a parent goes to prison for ACI, it means if there are young children in the family, they have lost the family income from the family breadwinner. If adult siblings are involved in ACI, how can a jail sentence for them protect anyone else in the family? The two are being punished for being in love with each other. It punishes the whole family, and splits them up by denying it the income it could have derived from two working adults, now sent to prison and humiliated. It is not protecting a family to disgrace it and humiliate it, by associating it and other family members with criminal sentencing of an ACI couple in the family and the stigma of incest.
Point Four - The Maintenance of Family Solidarity and Cohesion
It is likely that some reports in Louisiana, like those of the LRCC in Canada would contend that incest’s main deleterious effects are severe psychological damage to children and destruction of the family.
However, disclosure in the criminal process leads to public humiliation, and often no treatment for the offender. This, and fear of punishment, leads to a reluctance to report the offense.
In ‘Considerations’ of the section 11 ‘Forbidden marriage and incest’ (The New Zealand Law Commission’s Preliminary Paper 38 Adoption: Options for Reform (1999) it
said “ The integrity of the family is the element that needs to be added to the above reasoning in order to justify the prohibitions. The United Nations stated in 1994 that the “family constitutes the basic unit of society”. It is crucial to the development and nurturing of its individual members.
For most people a family is a place where they wish to belong and feel secure, where they are accepted and acknowledged, loved and cared for. But the most crucial need is for society to ensure that families are stable and healthy, and that members accept responsibility for one another, as they are the most effective defensive structures against marginalization, frustration and want. At times of crisis, social tension and personal problems the first place from which help is usually sought is within the family. The family has the potential for being the best institution for the nurture of children and for intimacy between adults.
298 Incest threatens the security and the stability of the family unit. Marriage within close family relationships is seen as undesirable for the same reasons. The Scottish Law Commission in its report on the law of incest observed that incest could give rise to psychological or other direct harm, a breakdown of trust within the family and may sometimes result in disruptive rivalries.
Our response to that is this: There is no evidence that ACI disturbs family cohesion or solidarity any more than fornication, promiscuity, divorce, homosexuality, prostitution or adultery or even unemployment do. All these acts are no longer subject to criminal punishment, as they may have been under Ecclesiastical Law. Incest was a sin according to the Christian church and under Ecclesiastical Law it was punished by various penances, and 'dispensations' (or 'fines'). Fortunately we are not living under an Anglican theocracy.
It is discriminatory to make ACI a crime for purportedly disturbing family cohesion or solidarity when all these other ‘former sins’ and crimes are no longer punished.
Discrimination based upon sexual orientation as a legal wrong, and ACI is a sexual orientation (hence the term ‘CIAO’ for people who have an ACI orientation.)
Jealousy occurs in all kinds of relationships. In today’s society a married woman may quite legally begin to have sexual relationships with several other married or unmarried men and or women and her husband has no recourse, no matter how jealous he may feel. And vice versa. Parents may even feel terribly hurt when their children divorce, become prostitutes, decide to abort a potential grandchild, or have a same sex marriage and swear never to have children. Life is full of pain, but that is not an excuse to deny people their human rights to love and to start a family with the person they have fallen into a loving committed relationship with, even if it is a family member. CIAO couples sometimes have no other living relatives. They constitute a family. They deserve the respect and protection that is implicit in the two sentences mentioned above “The United Nations stated in 1994 that the “family constitutes the basic unit of society”. It is crucial to the development and nurturing of its individual members.”