Whether or Not Consensual Adult Incest Should Be Contrary to Criminal Offense - Essay Example

Reflective Exercise PART A The issue of whether or not consensual adult incest should continue to be contrary to criminal law has been debated over the years but it still remains a criminal offense in the UK. The proponents of the notion that consensual adult incest should be contrary to criminal law suggest give their reasons in support of this view similarly to the opponents who give reasons against this view. Incest has been categorized as a criminal offense, yet it seems not to harm anybody. A critical question, therefore is should consensual adult incest continue to be contrary to criminal law? This paper critically analyses whether or not consensual adult incest should be contrary to criminal offense. The Sexual Offences Act of 2003 clearly states that sex with an adult relative is illegal under criminal law. It clearly states, “ A person aged 16 or over (A) commits an offence if-(a) he intentionally penetrates another person’s vagina or anus with a part of his body or anything else, or penetrates another person’s mouth with his penis, (b) the penetration is sexual, (c) the other person (B) is aged 18 or over, (d) A is related to B in a way mentioned in subsection (2), and (e) A knows or could reasonably be expected to know that he is related to B in that way”1. The law further defines that the ways in which people are related in this case includes, grandparent, parent, sister, brother, child, half brother, half sister, aunt, uncle, niece or nephew. Here it is clear that relations established here is by blood whether close or distant and a person who is sued for engaging in sex under this act is considered to be related to the victim in any of the above ways2. It is also considered that the defendant was expected to know that they had relations with the victim unless there is sufficient evidence showing that the two did not know each other3. An example of this would be a case where two siblings were separated as children and only met as adults then established a loving relationship that led to a sexual activity between the two of them. In terms of consensual to sexual penetration, the Sexual Act of 2003 states, “A person aged 16 or over (A) commits an offence if- (a) another person (B) penetrates A’s vagina or anus with a part of B’s body or anything else, or penetrates A’s mouth with B’s penis, (b) A consents to the penetration, (c) the penetration is sexual, (d) B is aged 18 or over, (e) A is related to B in a way mentioned in subsection (2), and (f) A knows or could reasonably be expected to know that he is related to B in that way”4. The rules and principles applied under this are similar to the above offence in every aspect including the situations under which one is considered guilty and the resultant convictions. In law, consent refers to an agreement to do or allow to do something. With respect to sexual activity, consent refers to an agreement, which must be voluntary and affirmative between those involved5. In criminal law, a defendant might use consent as an excuse to prevent liability for the offense. In light of this and for the purposes of criminal law of sexual offenses, an agreement should not be considered as consent unless it is free and genuine. The formula for determining a free agreement or its variations can be referred to several common law jurisdictions6. Justifications for the prohibition of consensual adult incest in criminal law differ widely in different legal systems7. However, mixed models are dominant where several grounds of prohibition are combined. In the past, religion was used as one of the most common grounds of prohibition. In all religions, it was considered a sin for relatives to engage in sexual relationships. For example, Christianity condemned the act because it considers sexual relationships as holy and should occur in marriage. It also emphasizes that blood relations cannot marry because it is sinful. In Christianity, just like in other religions such as Islam, incest is a sin before the Supreme Being. The moral arguments stating that it is ethically wrong for one to engage in sex with another person whom is a blood relation has also faded and are mostly implicitly mentioned in cases of consensual adult incest. In fact, the moral argument does not hold much weight in the issue judging by the fact that the act is consensual and between adult persons who can make proper decisions in a proper state of mind8. How does one decide that it is morally wrong for two consenting adults not to engage in incest? What is the moral basis for such an argument and how is it wrong morally? These are some of the questions that make the moral argument insufficient. Furthermore, the task of criminal law in many countries in the world including England is not to morality but legal protections of its citizens from socially harmful behavior. Therefore, this has been the basis upon which criminal prohibition of consensual adult incest has been developed. The maintenance of incest taboo has been one reason that has justified the prohibition of consensual adult incest in the society9. However, the same issues that come into play when criminal law purports to protect morality arise in this justification as well. In addition, the eugenic goal of preventing the birth of genetically defensive offspring is not important as the core justification mechanism for an incent provision. In several jurisdictions such as England and Australia, eugenics is not considered as a relevant argument in criminalizing consensual adult incest10. In fact, genetic dangers are considered as supplementary justifications to the issue. While eugenics might be used as a reason to make consensual adult incest illegal, it does not make it criminal. In addition, not all consensual adult incest relationships are meant for procreation just like there are marriages between partners of different sexes that are not meant for procreation. A case to consider is when consensual adults who engage in incest are taken to court, for instance with the eugenics reasoning, the couples could argue that their relationship is not meant for procreation which could be right making the charge insensible11. If the above reasons are not significantly used in the justification of criminalizing consensual adult incest, what then is the justification? Many legal jurisdictions refer to the protection of the family unit as an important aspect. It is indeed true that this argument has been used to justify the criminalization of consensual adult incest because it is considered as a factor that can seriously damage the family unit. The family unit is important in all societies because it provides continuity of societies through procreation and also serves to preserve societal values. Despite the fact that this has been used as the basis for criminalizing the act, it is still questionable12. One criticism to this is that while criminal law considers consensual adult incest as a harm to the family unit, harm to the family unit has been the cause of incest. This argument is true to a certain extent because in modern times, the traditional ideal of the family such as procreation and maintenance of societal values have eroded. As such, most people have forgotten or do not even know family or societal norms and see consensual adult incest as a normal or even fashionable thing. In addition to the above, a close analysis of many legal jurisdictions shows that criminal norms lead to contradictory outcomes because the stated grounds of prohibition are never incorporated in statutory provisions in a consistent manner leading to confusion13. For instance, if eugenics is to be used as a basis of prohibition, then it will leave out same sex partners because their intercourse does not lead to procreation. The Sexual Offenses Act of 2003 in England did not just come about as a new concept at that time but it was an issue that was revisited14. The British government made its intention to review the sexual offences clear to the House of Commons in 1998. The following year, the Home Secretary announced the terms of reference of the Sexual Offences Review that were to be done by a Steering Group of Officials, Advisers and External Reference Group. The findings of the Review entitled Setting the Boundaries Report (STB) were published in the year 2000 by the Home Office15. The report served to provide recommendations to ministers and to inspire public engagement, which would serve as a cornerstone for the labour government’s response to sex crime in the country. The report was heavily used in developing the Sexual Offences Bill of 2003 and influenced almost all the changed that replaced the Sexual Offences Act of 1956 and Associated Acts16. New Labour considered the public as part of its modernization of Britain and a review of the sexual offences were compatible with the modernization plan. This was also in response to the increase in sexual assault that had failed in prosecutions. The most important aspect that relates to the consensual adult incest issue here is that the Review Team came up with two principles in the terms of reference that were referred to as guiding principles. The first was that the sex offenses Review Team were to judge between right and wrong based on, “assessment done to the individual (and through the individual, to society as a whole)17. The second principle stated, “The criminal law should not intrude unnecessarily into the private life of adults”18. In the first principle, the Review Team did not clearly identify the harm but merely asserted a non-explicit assessment of “harm done to the individual”. What this means is that it did not define what was to be considered harm, for instance the abusive nature of an incestuous conduct. In a further statement, the Review Team stated, “applying the principle of harm means that most consensual activity between adults in private should be their own affair, and not that of the criminal law19. These statements make the prohibition of consensual adult incest a vague issue under criminal law. The Review Team came up with the principles that determine what harm to individuals is and what is not. The report did not clearly identify what makes a consensual adult incest a criminal act that should be punished by the law20. The sexual offenses Bill of 2003 makes a consensual adult incest a criminal offense punishable under the law21. The Report clearly states that applying the principle of harm means that most consensual activity between adults in private is an affair between the two and not an affair of criminal law. The fact here is that it states most consensual and not all consensual activities between adults in private should be an affair between the two. Because the sexual offences bill of 2003 makes a consensual adult incest a criminal offense, and it is a creation of the STB report, the law becomes vague and inconsistent22. An important issue that should be questioned is what makes consensual adult incest criminal? What makes it different from the other consensual activities between two adults that should be considered a private affair rather than a criminal affair? In addition, what are these consensual activities between adults in private that should not be considered criminal affairs? How is consensual adult incest harmful to an individual or the society? The STB report and the Law that criminalizes consensual adult incest do not answer any of the above critical questions yet they are important in terms of justifying the criminality of consensual adult incest and showing why it should be a criminal offense23. In addition to these, the Report and the law does not show how a consensual adult incest causes harm to an individual or the society, yet a criminal offense should show an aspect of harm either to an individual or to a society. The fact that the law fails to show this shows that consensual adult incest should not be contrary to criminal law. Spencer suggests that the Review of the sexual offenses thought “nothing wrong in principle with enacting laws that make theoretically illegal whole swathes of human activity that is blameless or harmless, leaving it to the discretion of the police and other authorities to decide whom to prosecute, and for what”24. In consideration of the consensual adult incest, the above statement is true because this law was enacted by the authorities to prosecute those who are found guilty of the act yet it does not show how the act is harmful. This contradicts the first principle of the STB Report yet it is an important law in the application of this law. For an act to be criminal, it should be harmful to an individual or the society in line with the first principle of the STB Report25. The failure to prove its harmful nature clearly shows it is not a criminal offense under criminal law. Inconsistency in application of criminal law fails to effectively define issues that should be considered criminal26. However, in this issue the conception of harm is not developed showing that the law might be convicting people based on consensual adult incest, which is not harmful as long as the harm is not stated. For many years, the criminal law of England has concerned itself with the enforcement of moral principles punishing immorality. Subject to certain exceptions that the English law has observed with respect to particular crimes, consent of the victim has never been considered as an aspect of the English Criminal law27. What has been accepted as the basis of the English criminal law is that there are certain moral principles and standards of behavior that society requires people to observe. The breach of these moral principles or standards of behavior are considered offenses not only to the person injured but also to the society as a whole. Therefore, if criminal law were to be reformed to eliminate the clauses meant to preserve order and decency or protect citizens, then this would interfere with one fundamental principle of the law28. However, in 1957, the Report of the Wolfenden Committee on Homosexual Offenses and Prostitution recommended that homosexual activities between consenting adults in private should not be considered as criminal offense29. The report stressed that in matters of private morality, the society and the law ought to give to individual freedom of choice and action. This was put into law then. However, during this time until 2003, consensual incest was not an offense until 200330. In the English Law, under the Sexual Offenses Act of 1956, section 10(1) criminalizes incest by stating, “It is an offence for a man to have sexual intercourse with a woman whom he knows to be his grand-daughter, daughter, sister or mother31. Section 11(1) also states, “It is an offence for a woman of the age of 16 or over to permit a man whom she knows her grandfather, father, brother or son to have sexual intercourse with her by consent”32. Despite the vagueness of this law, it is clear that it makes incest unlawful. However, the issue of consent is only implied in the case of the woman and not the man. This law was a result of the English Criminals Law Revision Committee and it shows confusion and illogical thought, which reflects differences of opinion in how the law should deal with the issue of incest33. The criminal code of 1956, similarly to that established in the Sexual Offenses Act of 2003 show several aspects which bring the issue of consensual adult incest should being contrary to criminal law into question. First, both of them fail to identify the problem or acts as deterrent. The two codes do not take into account issues of incestuous relationships which refer to sexual acts other than sexual intercourse between blood relations and also between people who are not blood relations such as a step-daughter or step sister fro, the fathers side and step brother from the mothers side. In addition, the Sexual Offences Act of 1956 defines incest narrowly because the definition is based on penile-vaginal penetration34. The failure of the codes to handle this issues shows that consensual adult incest should not be contrary to criminal law. The reform of the law on sex offences in 2003 was in a part a way to reflect the changes in social attitudes in the country because the government felt that the laws were outdated35. As such, the reforms were to offer more protection to children and vulnerable adults. Consent was one of the issues that were to be keenly reviewed as responsibilities in sexual relationships. Criminalizing consensual incest does not capture a change in social attitudes in the country. The law in this case does not mean what it says because the criminalization of consensual incest does not show where the harm is, whoever is harmed or which part of the society the law serves to protect. The Sexual Offences Act of 2003 seems not to bring reform in the issue of consensual adult consent because it is not clear why the act is included in the law and the function it serves to protect36. A law should have a basis as well as a function. The Act on consensual adult incest does not have the two showing that it is meaningless. Therefore, consensual adult incest should not be contrary to criminal law. In conclusion, there is no other voluntary sexual relationship between adult people considered of self-determination age that is prohibited starting from homosexuality, pornography and lesbianism. In light of this, what justification then exists which makes it important to criminalize consensual adult incest? The law does not differentiate consensual adult incest from other voluntary sexual relationships between two consenting adult people. Why should consensual adult incest should continue to be contrary to criminal law if the law cannot differentiate it from the ones above? This shows that consensual adult incest should not be contrary to law and should be considered similarly to the other voluntary sexual relationships between consenting adult persons. As discussed above, the law does not show how consensual adult incest is harmful to an individual or society. In addition, it does not show how this is a crime. As such, it should not continue to be contrary to criminal law if the same law cannot justify it. Bibliography Chambers, Clare. Inclusivity and constitution in the family. LSE, Law, Society and Economy Working papers. 2009. Retrieved March 29, 2015 from http://www.lse.ac.uk/collections/law/wps/WPS2009-02_Chambers.pdf Devlin, Patrick Baron. Morals and the criminal law. Oxford University Press, 1965. Home Office. Criminal Law Revision Committee Working Paper on Sexual Offences. HMSO, October 1980 Home Office. Setting the Boundaries: Reforming the Law on Sex Offences. London, UK: Home Office Communication Department. 2000. Great Britain. Sexual Offences Act 1956 (amendment). A bill to amend section 6 of the Sexual Offences Act 1956. (Cambridge [eng.: Proquest LLC. 2007). Greenland, Cyril. Sex Law Reform in an International Perspective: England and Wales and Canada. Bull Am Acad Psychiatry Law, Vol. 11, No.4, 1983. Johnstone G Penal policy making: Elitist, populist or participatory? Punishment and Society, 2(2): (2000) 161–180. Law Commission. Consent in sex offences: A report to the home office sex offences review. Unnumbered series. (2000) Report. 27 July. Available at: http://lawcommission.justice.gov.uk/docs/ Leavitt, Gregory C. "Tylor vs. Westermarck: Explaining the incest taboo." Sociology Mind 3, no. 01 (2013): 45. Sexual Offences Act 1956. Retrieved March 29, 2015 from http://www.legislation.gov.uk/ukpga/2003/42/pdfs/ukpga_20030042_en.pdf Sexual Offences Act 2003. Retrieved March 29, 2015 from http://www.legislation.gov.uk/ukpga/2003/42/pdfs/ukpga_20030042_en.pdf Spencer JR. The sexual offences act 2003: (2) child and family offences. Criminal Law Review May: (2004)347–360. Wilkinson, Stephen, and Eve Garrard. "Eugenics and the ethics of selective reproduction." Staffordshire: Keele University. (2013). Wolfenden Committee on Homosexual Offences and Prostitution: (Cmnd. 247. HMSO. 1957) Read More