Petition to legalize Adult Consensual Incest (ACI) in New Zealand
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Calling on the New Zealand Parliament to urge the New Zealand Government 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 law in its present form is inappropriate, unfair, ineffective and discriminatory. The existing law of incest in New Zealand punishes consensual adult incest with imprisonment, 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;
· "130 Incest -- Crimes Act 1961 No 43 (as at 13 July 2011), Public Act 13 July 2011. . · · "131 Sexual conduct with dependent family member -- Crimes Act 1961 No 43 (as at 11 May 2014)
(1) Sexual connection is incest if—
(a) it is between 2 people whose relationship is that of parent and child, siblings, half-siblings, or grandparent and grandchild; and
(b) the person charged knows of the relationship.
(2) Every one of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 10 years.
Public fears, prejudice and bigotry about 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.
While a New Zealand Law Commission paper(http://www.nzlii.org/nz/other/nzlc/pp/PP38/PP38-11_.html states :
“292 New Zealand’s laws on forbidden marriage and incest derive from English legislation, which in turn derives from Leviticus 18:7–18. What is important is why the laws are on the statute book today. We suggest that there are two main reasons:
• the protection of the integrity of the family; and
• the genetic effects of incest.
293 It cannot be said that the laws of incest and forbidden marriage are maintained for one of these reasons alone. The categories are closely linked.”
I consider ( as I did with my petition to the Scottish parliament) New Zealand’s out-dated incest law rests on four points: 1. Public Opinion; 2. Protection of the child and other family members; 3 The Maintenance of Family Solidarity and Cohesion; 4 The Genetic Argument
Point One – Public Opinion.
Public opinion has changed dramatically since the 1980s, after the Royal Commission into Human Relationships in Australia made many recommendations including the legalisation 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. 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 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 more freedom of thought and choice.
When the law on incest was written in New Zealand, no public opinion polls were taken about incest in New Zealand. Any claims that the law was based on public opinion are dubious at best; i.e. any such claims are unsubstantiated by any evidence. No public opinion polls on adult consensual incest were ever undertaken in New Zealand.
The public attitude to incest throughout the 20th century in New Zealand 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 New Zealand have been made aware of the fact, for example, that French law has allowed ACI since 1810. This fact, this important bit of truth has been denied to the public, surreptitiously brainwashed 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 Two - 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 offence. 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 Three - The Maintenance of Family Solidarity and Cohesion
A New Zealand Law Commission paper states as a reason for the continuation of the law on incest in New Zealand
Integrity of the family
297 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 marginalisation, 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.
299 These concepts apply equally to families linked by an adoptive relationship and those that are linked by consanguinity.
Our response to that is this one: 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.
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 there 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. ACI 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.”
Point Four - The Genetic Argument
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 New Zealand 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?
The above mentioned 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.”
There are no valid reasons to discriminate harshly against the ACI section of the community on the basis of: 1. public opinion; 2. protection of the child and family 3. solidarity of the family and community 4. genetic safety argument.
The New Zealand incest law perpetuates superstitious, bigoted outmoded incestophobic beliefs but in its present form, its continued existence is unjustified. The present incest law in New Zealand is over-inclusive in that while it may provide protection to those children or adults in a family who are abused by a family member, it abuses those adult children who were in a consensual adult incestuous relationship with another adult family member by making them the subject of separation, arrest, prosecution, incarceration, loss of access to children, each other, loss of family and friends, careers, family homes, and reputations.
The law does unnecessarily and unfairly punish consensual adult incest, breaching the rights to sexual autonomy for all consenting adults that is accepted in other developed countries.
The law of incest in New Zealand law should be reformed so that ACI is no longer a crime.
The law against incest should be removed. Other laws already exist that protect children from abuse and in any case, incest laws should not be applicable in cases where participants are both consenting adults over the age of 21. In addition, for those who have been convicted in such circumstances should 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.
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