Comment & Debate
Justice Anthony Kennedy: “The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”[1]
“The Right to Adult Incest”. Charter Blog. October 22, 2008 – The couple appear to have confessed to a crime under South Australia’s Criminal Law Consolidation Act:
72—Incest
Any persons who, being related, either as parent and child or as brother and sister, have sexual intercourse with each other shall be guilty of incest and liable to be imprisoned for a term not exceeding seven years.
Indeed, they were actually convicted of this crime this year and were sentenced to a good behaviour bond.
But there’s a major problem here: Australia’s toughest human rights law, the Human Rights (Sexual Conduct) Act 1994 (Cth), which says:
Those who recall the debate about the Commonwealth law in 1994 will also recall that the question of adult incest was very much discussed at the time (though, alas, the relevant discussion in the Senate Legal and Constitutional Affairs Committee, not to mention the explanatory memorandum to the Bill, do not seem to be available online. The internet, it seems, only began in 1995.)
Section 4 and Charter s. 13(a), of course, both promote the privacy right in Article 17 of the ICCPR. However, importantly, in stark contrast to the Charter, the Commmonwealth’s Act overrides all other laws (with the likely exception of subsequent Commonwealth laws, but those don’t seem to be in play here.) Moreover, the Act cannot be retroactively repealed (thanks to a High Court decision about s. 109 of the Constitution, which governs the interaction between federal and state laws.) So, if s4(1) overrides the South Australian law on incest, then not only did this couple act lawfully, but they also can continue to do so – despite the bond – at least until the Commonwealth parliament repeals or amends its Act.
Wow. But there are two burning (legal) questions. First, is the Commonwealth Act constitutional? The High Court was asked this question in Croome v Tasmania [1997] HCA 5 but never got to resolve it because the Tasmanian parliament repealed the laws (on sexual conduct against ‘the laws of nature’) that was at issue in that case. The Court did, however, rule that Croome, by confessing to Tasmanian police that he had had sex with a man, had standing to challenge the law (even though he was never prosecuted.) The SA couple pbviously have standing. Indeed, the news reports say that the police are ‘closely monitoring’ them. Ew.
Second, what effect does s4(1) have on the South Australian Act? Let’s see: the couple evidently engaged in sexual conduct; they are both adults; they certainly sound like they consented – and that’s what the sentencing jduge found – and they (presumably) acted in private (despite being a little more public about it after the fact than some). This leaves two subsidiary questions: (a) would a prosecution under s72 interere with their privacy, within the meaning of Article 17 of the ICCPR? It would certainly intefere with the couple’s sex life, but I guess you have to wonder whether everyone’s sex life – even their consensual sex life done in private – is always private. (b) and would any such interference be ‘arbitrary’? That raises, of course, the very tricky issue of whether – leaving aside the horror of sexual acts performed on children – there is actually anything much wrong with incest. The three usual suspects are (i) morality; never a strong argument for a breach of rights; (ii) a suspicion of coercion; arguably dispelled here because the couple only met recently (at least on on some accounts.) The Advertiser has some expert blathering about ‘genetic sexual attraction’. (iii) harm for any offspring. There is certainly off-spring here and, according to the sentencing remarks, an earlier child of the couple died from genetic defects. The current child – the only one apparently conceieved in South Australia – seems fine. But there’s also the (somewhat self-fulfilling) spectre of stigma.
“Inbred obscurity: improving incest laws in the shadow of the “sexual family”. Harvard Law Review. June 2006 – II. A NONCONSENT RATIONALE FOR INCEST LAWS Incest laws function in the shadow of three powerful norms: sexual behavior is acceptable only in marriage, marriage operates as the core of the “family,” and marriage and marriage-based families are morally privileged and should be legally privileged as well. Incest laws represent a fourth, equally powerful norm: sex in the “family” — other than within a marriage — is strictly prohibited. When incest laws are invoked, these social and legal norms not only loom large, but also often clash, not least because they conceal a dormant conceptual tension: the family is at once sexualized, via the marriage relationship, and desexualized, via incest prohibitions.18 Faced with cases of incest, judges and legislators often seem more interested in policing the conflicting norms involved than in focusing on the incestuous behavior itself.19 These underlying norms, moreover, are often deeply out of step with the law’s treatment of marriage and the family in other realms.
That this legal confusion obscures the distinction between consensual and nonconsensual behavior is not merely academic. In a post– Lawrence v. Texas20 world, it is at least highly problematic to retain laws that can criminalize consensual intimate relationships on the basis of nothing more than unexplained references to “morality” or “family.” 21 And although it is contestable whether Lawrence’s rationale extends perforce to a correlative noninterference with marriage, other legal precedents, such as Zablocki v. Redhail,22 do reveal a constitutional presumption in favor of freedom of marriage, at least to the extent that restrictions of that freedom call for some meaningful explanation. 23 Indeed, participants in other legal battles have accepted the need to explain or defend even a “moral” or “traditional” position: the same-sex marriage debate, for instance, has prompted extensive justifications on both sides that go beyond cursory references to morality.24 By contrast, incest laws are replete with such cursory references.
Nonconsent would provide a legally consistent and normatively defensible
rationale for incest prohibitions. Laws based on this rationale would be consistent not only with Lawrence25 and Zablocki, but also with laws protecting victims of nonconsensual sex. Even outside rape and statutory rape, the authority-dependency dynamic likely to inhere among certain family members can make consent in those relationships presumptively unlikely, and prohibiting the sexualization of those relationships is therefore a legitimate state endeavor.26 Incest prohibitions could directly target such dependency relationships if legislators and judges adopted — for purposes of incest prohibitions — Professor Martha Fineman’s definition of “family,” which centers on dependency relationships rather than on marriage.27 Giving the law this focus may even better protect vulnerable family members than the current law: whereas the current incest law often treats nonconsent as secondary to policing various norms, prohibiting incest on the basis of nonconsent would send an undiluted message that dependent family members are strictly “off limits” because they are dependent and thus presumed to be nonconsenting.28
Organizing the incest laws on the basis of nonconsent would thus maximize the freedom of intimacy for nondependent family members and maximize the protection of dependent family members in a way consistent with other areas of the law. By exposing the legal confusion that is imbedded — or “inbred” — in incest law, this Note attempts to pave the way for reforming that law in favor of a scheme based on nonconsent.
Libertarian Alliance, a British thinktank, argues: “consenting incestuous behaviour is no business of the state. It is up to individuals to make their own decisions.”[2]