Title: Defining Incest
Author: Leigh B. Bienen
Publisher: Northwestern University Law Review
Issue: Volume 92, No. 4, pp. 1501-1640
Description: This article examines the statutory formulations and interpretations of incest in American jurisdictions against the backdrop of the author’s experiences as an advocate and reporter on rape reform legislation in the late 1970s and later as a public defender who represented sex offenders sentenced to treatment at the Adult Diagnostic and Treatment Center in Avenell, New Jersey. [source]
The law defines Incest, but the law is not alone in defining Incest. Among others, anthropologists, psychologists, social workers, priests and ministers, and people who live in or consider themselves as part of a family define incest, if by incest we mean prohibited or socially sanctioned sexual behavior within the family. What is known about incest? We know the pattern of behavior exists and has existed in every society, however it is de- fined. We know it is punishable behavior in most societies, although punishments vary and cultures define the boundaries of prohibited behavior differently, both in terms of the forbidden relationship and the acts constituting the offense.
The laws regarding sex offenses are a tangled web, as old as writing, clear for short bursts, or segments of time and place, ragged and contradictory elsewhere, and changing, ever changing in meaning, in interpretation, and formulation. This Article examines the statutory formulations and interpretations of Incest in American jurisdictions against the backdrop of my experience first as an advocate and reporter on rape reform legislation in the late 1970s and later, as a public defender representing sex offenders sentenced to treatment at the Adult Diagnostic and Treatment Center in Avenel, New Jersey.
Reports of the incidence of incest outside of the law come from samples that are admittedly incomplete and usually unscientific. These samples include self selected responses to surveys, from confessional literature, from the caseloads of individual psychologists, psychiatrists, or other professionals offering counseling or treatment, from hospital records, and from social services agencies and residential institutions. A history or allegation of prior acts of incest may emerge when a person is arrested for prostitution or another offense, being treated for substance abuse or depression, or en- gaging in aberrant or disruptive sexual behavior. In other societies or prior times, reports of incest have come from historical anecdote, from literature and mythology, or from the work of anthropologists.
Incest turns up rarely in American decisional law. Reported cases of incest are an indeterminate proportion but, it is suspected, a small fraction of actual incidents that occur. The national crime reports do not separate out Incest from other sex offenses. The data on incarcerated sex offenders is one of the few sources of information on incidence. Comparing cases across states or local jurisdictions is hazardous at best. Incest typically takes place over years rather than being a single criminal episode. When cases come to the attention of law enforcement, they place enormous strains upon the criminal justice system. Everyone hates them, and it is easy to understand why; the acts are repellent. Neither the victims nor the defendants evoke much sympathy. The accusing witnesses and the defendants contradict themselves and each other, retract charges, or engage in behavior that makes their testimony subject to impeachment, thereby creating problems for prosecutors and defense attorneys alike. Furthermore, the outcome is unpredictable because these conflicted family relationships have a different configuration in every case. 1502 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission…