Abstract

This chapter, part of a larger book-length project titled Criminalizing Sex--A Unified Theory, offers a “normative reconstruction” of the law of incest, consisting of four parts: Part I looks at the concept of incest as a complex cultural taboo, one which has attracted the attention of a wide range of social scientists and theorists. Part II considers the striking multiplicity of ways in which incest has been dealt with across systems of criminal law, including the fact that a broad swath of “civilian” jurisdictions do not treat it as a crime at all. Part III considers instances in which adults have sex with closely related juveniles, arguing (on “fair labeling” grounds) that such cases should be treated as an aggravated form of statutory rape, rather than as a separate, free-standing offense of “juvenile incest.” Part IV looks at incestuous relationships between adults. In most such cases, it is argued, criminal sanctions are unjustifiable unless lack of consent can specifically be proved. Two possible exceptions exist, however, where the adult relationship is a continuation of one that began when one of the parties was a minor, or where the two parties are in a hierarchical relationship, such as that between parent and child. In such cases, lack of consent could be presumed, subject to rebuttal evidence that consent was genuinely given.

 

Speaker Bio

Stuart Green is a Distinguished Professor of Law at Rutgers Law School. He earned a B.A. in Philosophy at Tufts University and a J.D. at Yale Law School, where he was a notes editor of the Yale Law Journal. He clerked on the U.S. Ninth Circuit Court of Appeals in Los Angeles, practiced law in Washington, D.C., and previously taught at Louisiana State University. His books include Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime (OUP, 2006) and Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age(HUP, 2012). Green has served as a visiting professor or visiting fellow at the Universities of Glasgow, Melbourne, Michigan, Oxford, and Tel Aviv, and the Australian National University. He is currently concluding a six-month stint as a Leverhulme Visiting Professor at the London School of Economics. He is a founding co-editor of Criminal Law and Criminal Justice Books and a frequent media commentator on issues in criminal law and ethics.

 

Paper available here.

 

 

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