Idaho Couple Faces Life in Prison for Incest

43-0702_Reed_Brian.embedded.prod_affiliate.36839-0702_Lee_Marilyn.embedded.prod_affiliate.36Brian Lee Reed, 30, and Marilyn Renee Lee, 36, have been arrested for having consensual sex. The problem is not the sex but the fact that Marilyn is the half-sister of Brian. The case could raise some interesting legal questions.

I have long been a critic of criminalization of polygamy, here and other moral legislation prohibiting such things as fornication or adultery.

Incest is an interesting legal question. The moral claim against incest is constitutionally suspect. People have the right to follow different moral constructs and guidance. The public policy claim was based on genetic abnormalities. However, some couples may not be able to conceive or use protection to avoid conception. Moreover, the medical case for such dangers may not be higher with a half-brother or half-sister than the population at large. A recent study shows that, at least with cousins (who are covered by these laws), there is no greater risk for such defects. Indeed, some researchers have recommended decriminalizing incestuous sex, here.

The point is that the state should bear the burden of proving such a connection. Even assuming that the state does not have to show that it is the least restrictive means, a rational basis test still demands some connection. The Supreme Court ruled that states cannot criminalize homosexual relations in Lawrence v. Texas.

Under state law, “[p]ersons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other.” What is particularly remarkable is the maximum sentence for incest in Idaho: life in prison. That seems completely out of scale with the offense and driven by the moral rather than public policy rationale. Obviously, the case is stronger with siblings than cousins. This is a taboo subject, obviously, and the notion of incest is offensive to most of us. However, from a constitutional standpoint, we need to separate our personal opposition from the scientific basis for the criminalization.

There is also some research on the attraction of siblings who are raised separately. It is called “genetic sexual attraction.” The opposite appears to occur with the “Westermarck effect” when siblings are raised together in close proximity.

Reed is no stranger to sex offenses. He was already in jail for violating probation in connection to a 2002 conviction for sexual battery involving a minor.

For the full story, click here.

25 thoughts on “Idaho Couple Faces Life in Prison for Incest”

  1. the resources required to incarcerate two people in their 30s is staggering. but more staggering still to officially be willing to allocate these resources to two people whose worst crime is running a slightly increased chance of birth defects.

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  3. The “state” has a legitimate interest in preventing the union of any persons who are likely to generate offspring that will, due to genetic anomalies, become wards of the state. However, this concern could as easily be applied to preventing two diabetics or two epileptics from marrying as well, an encroachment upon civil liberties that would most certainly be found objectionable by most rational members of society. If prevention of birth defects is the primary concern regarding incestuous unions, the debate can easily be nullified by simply requiring at least one member of the coupling to undergo voluntary sterilization. Once that has been accomplished, can the “state” still have any legitimate interest in preventing incestuous unions? I think not.

  4. I think they should be allowed to marry and give birth to a future president equally as dumb as Bush. Probably not as ” evil” but hey. Ya can’t have it all.

  5. WayneJarvis,

    As for the “public policy” against incest, . . . .

    Incest is illegal because the public thinks it’s icky (like the public found homosexuality icky not too long ago).

    some people might still disagree with you.

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