Until relatively recently, it was not unusual to see the argument that the state had no business criminalising incest, on the basis that if sexual activity between relations was already criminal where one was under the age of consent, and if both parties were consenting adults it was none of the law’s business (see, eg, N Morris and G Hawkins, The Honest Politician’s Guide to Crime Control (1970)).
That argument seems to have gone out of fashion, on the basis that incestuous relationships are invariably continuations of abusive relationships commenced in childhood and so should be criminalised on this basis (see, eg, J Temkin, ‘Do we need the crime of incest?’ (1991) 44 Current Legal Problems 185). This line of argument is most clearly demonstrated by the Home Office’s 2000 review of sexual offences, Setting the Boundaries, which argued for the retention of the prohibition against incest, as part of a broader offence of familial sexual abuse:
“The primary aim of the law in this area should be to protect against sexual exploitation within the family, especially young and vulnerable people.” (para 5.5.3)
“The dynamics of relationships within families change as children grow up, but patterns of domination started in childhood can continue into adult life, and significantly affect adult behaviour. In particular the issue of whether an adult child or sibling can ever truly consent to a sexual relationship with a father or brother is questionable, and the law and practice need to recognise this.” (para 5.5.4)
“The review concluded that it would not be right to seem to legitimise sexual relationships between adult family members. The dynamics and balance of power within a family require special recognition, and we were concerned to ensure that patterns of abuse established in childhood were not allowed to continue in adulthood.” (para 5.8.3)Curiously, the Review seems to have assumed that only one party – the “instigator” – would be prosecuted in respect of incest, even though any offence would permit otherwise:
“In principle... the law should be able to deal with perpetrators of either sex. It must be for the police as investigators and the CPS as prosecutor to determine who was the instigator, and who should therefore be regarded as culpable, on the facts of each case. That decision must be informed by a full knowledge of the relationship, and the length of time it has been going on.” (para 5.8.7)While the argument that it is necessary to retain incest to – as the Review puts it – “ensure that patterns of abuse established in childhood were not allowed to continue in adulthood” is a strong one, it should give rise to doubts about the appropriateness of a prosecution where that is demonstrably not the case. It is difficult to see how a prosecution of both parties could ever be justified on this rationale. The Review seemed to think any problems of principle arising here could be sufficiently dealt with by acknowledging them and promptly ignoring them:
“One of our guiding principles was to uphold the rights of adults to consensual sexual relationships in private, reflecting the ECHR respect for private life. Siblings or half-siblings may meet as adults, not even knowing that they are related. They are attracted and a sexual relationship develops. It is important to recognise that that relationship would only be criminal if they knew they were related. This has even formed plots in soap operas. Such cases very rarely come to the attention of the law or are prosecuted.” (para 5.8.2)
The matter has caused controversy elsewhere. A German couple comprising a brother who had been adopted and only met his sister when he was in her early 20s and she was in her late teens have had four children. The brother (seemingly not the sister) has been prosecuted and the pair were reported in March 2007 to be appealing to the Federal Constitutional Court to challenge the German prohibition on incest. A BBC News report stated that a ruling was expected in the “next few months”, but there do not appear to be any reports of an outcome online as yet.