The Meaning of "Incest"

A story in Sunday's New York Times, Man Convicted in Incest Case Plans Appeal to Supreme Court, addresses the question of what conduct should be encompassed by criminal prohibitions on incest:

A man convicted of having sex with his 22-year-old stepdaughter is seeking to challenge Ohio’s incest law through an appeal to the United States Supreme Court.

Paul D. Lowe, 44, a former sheriff’s deputy, pleaded no contest to a sexual battery charge in 2004 for having intercourse with his stepdaughter, who was 22.... The case is complicated by the county prosecutor’s contention that the sex between Mr. Lowe and his stepdaughter was not consensual....

The conviction was upheld by the Ohio Supreme Court in a 6-to-1 decision on Feb. 28. It ruled that Mr. Lowe had no constitutional right to have sex with his stepdaughter and that the Ohio law unambiguously barred sex regardless of the stepchild’s age. “The state has a legitimate interest in prohibiting incestuous relations and in protecting the family unit and family relationships,” the court ruled, adding, “The law makes no exception for consent of the stepchild or the stepchild’s age.”

J. Dean Carro, Mr. Lowe’s lawyer and a University of Akron law professor, said he was troubled by the breadth of the state law, which criminalizes sexual contact between stepparents and stepchildren of any age. He argues that consensual sex that does not involve minors or adults who may be coerced or injured by the act should be legal in light of the landmark 2003 Lawrence v. Texas decision in which the Supreme Court overturned a Texas sodomy law that barred consenting adults from engaging in homosexual contact.

Mr. Carro hopes the case could refine the Texas ruling by answering whether the court recognizes a fundamental right for adults to have private, consensual sexual relations without government control. Legal scholars on both sides of the issue agree that the 2003 ruling does not definitively answer the question.

See also: Consensual Incest and Abortion.