Brian 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.
As for the “public policy” against incest, the same public policy would apply to women over the age of 35 having children, when birth defects and incidents of Downs Syndrome skyrocket.
Nevertheless, there is not (and should not be) a movement to prohibit women over 35 from having children.
Incest is illegal because the public thinks it’s icky (like the public found homosexuality icky not too long ago).
I’m glad I don’t live in Idaho. I wouldn’t want any of the money I pay in taxes going to keep these people locked up for life for this nonsense.
The “right to life crowd” has no problem with abstinence, which, in this case, the law promotes.
I think these laws are derived from a legitimate government interest and would likely withstand review.
I’m not sure the government has any business determining which consenting adults can get married and which cannot, but I’m definitely sure that it has no business getting between people involved in consensual sexual acts. I can’t imagine ever wanting to have sex with my sister, but I don’t get to force other folks to live by my likes and dislikes.
The govmit has no business getting involved with these consenting adults.
I had to look closer at the photos because initially I thought the she on the right was a he. Look at the neck on that gal…must be a female “wait” lifter…
While at the ball game this past weekend, I saw a young boy who was wearing a T-shirt appropriate for this situation:
PADDLE FASTER! I hear banjos.
“I don’t know if it is incest, but I will know it when I see it”.
Mike S.,
That is an interesting question about the moral dilemma for the Right to Life crowd. I would think that they should have a problem with it, but many of them are also pro-Death penalty, so your guess is as good as mine.
iconoclast:
“the Victorian — was one in which consanguineal marriages in the second degree (i.e., first cousins) was perfectly legal and widely accepted, especially in bourgeois circles.”
isnt European nobility a case against that? Look at poor Prince Charles. As inbred as a Golden Retriever.
Junk yard dogs are the best. New blood always improves the herd.
This is more of an 8th Amendment case than a privacy issue.
Funnily enough, the era that set the standard for modern, conservative sexual morality — the Victorian — was one in which consanguineal marriages in the second degree (i.e., first cousins) was perfectly legal and widely accepted, especially in bourgeois circles.
If the mug shots are admissible evidence, they will be put away for life.
Thinking about the genetic abnormalities reasoning isn’t this counter to the anti-abortion movement’s belief. After all a child produced by this union would be a child of God and therefore shouldn’t be prevented for any reason. Remember the RCC excommunication a month or so back of the Doctor who had aborted the child of an incestuous rape of an 11 year old?
When I was getting married in Arizona two years ago, I think I remember reading a statement in a booklet on the ability to obtain a marriage license, that said that if you are marrying a blood relative, a cousin or closer, you are required to show that one of the two people are permanently and certainly unable to conceive or something.
Will they spend their lives on the sex offender registry?
The public policy argument, based on genetic abnormalities, is troublesome as well, if consistently applied, since it would criminalize sexual relations between any two people whose offspring would be at least as likely as, say, half-siblings, to result in “genetic abnormalities”. Perhaps any fertile couple over 50?
That Reed is a prior sex offender is probably heavily involved in this decision. Given that sex offenders are considered by law enforcement as criminals for life, even after serving their time for that crime, sex offender’s rules of engagement with society are constantly watched and scrutinized. Reed has more worries than just Dudley Do Right from bible land.
I could make a bad joke or it may be a truth, send em to Arkansas or where ever Foxworthy can make a dime out of it, but for all of our sakes the Government should not be involved in this case. They are half’s not so good for any children but they are consenting adults, save any mental or psychological abnormality.
Too much Dang government intrusion in one’s life. Where the guy that wanted the Turkey as the National bird?
As far as Souter and how the nonimee would vote, this one is clearly a current Majority Opinion. They know the result they want it is just a matter of how do we get there.
P.S.
If neither one of them turns on the other via plea-bargain dynamics, safe-sex could become an issue, and the foundational facts would have intense focus.
The only eye witnesses are the accused, and they do not have to testify.
So wouldn’t the prosecutor have to prove no condoms or other preventive measures to prevent pregnancy were used?
Like in an STD sex prosecution where a person with an STD was accused of infecting a sex partner?
Or is this simply a moral prosecution from the skin-head state?
Whenever government tries to legislate the sexual morality of consenting adults it produces terrible results. Never having had a sister I have no idea of what feelings may or may not be involved in the relationship, but it really isn’t my business, or society’s as to what those feelings are. The scientific arguments regarding possible children of such unions are smokescreens for the underlying imposition of religious morality into consensual adult sex. I’ve always found the religious moralists focus on sex as the one sin to be ruthlessly prosecuted to be an example of moral hypocrisy. Jesus did make many statements on other issues, but those preachings would have run counter to “the powers that be,” so are ignored while sex is focused on. Curiously, the one aspect of human relationships that Jesus focused on specifically was his opposition to divorce. It is curious that Fundamentalists who are so quick to try to legislate sexual morality, have among the highest divorce rates in the country.
I still remember the case in Kansas in the very early 60’s that Playboy publicized, where a Rock and Roll Deejay was sentenced to six years in jail for performing cunnilingus on his girlfriend as the police conveniently busted in to catch him in the act. Remember that back then in many venues Rock and Roll was considered the “Devil’s Music.” Funny, how popular Elvis remains in the “Bible Belt.”
Like Lawrence v Texas 539 U.S. 558 (2003) for starters. Government in the bedroom where adults are doing consensual endeavours has a direction away from the direction Idaho is going.
Will Sotomayer vote as Souter would have if it goes that far?