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Argument: Confusing laws for married incestuous couples show flaws of ban

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"Inbred obscurity: improving incest laws in the shadow of the "sexual family". Harvard Law Review. June 2006 - A. Statutes Among the most notable examples of incest statutes that operate problematically under the influence of competing family norms are those that criminalize sexual conduct between two family members but create an exception when the two people are in a valid marriage. Indiana’s criminal statute is representative. That law prohibits adults from engaging in sexual conduct with “a parent, child, grandparent, grandchild, sibling, aunt, uncle, niece, or nephew,” but states: “It is a defense that the accused person’s otherwise incestuous relation with the other person was based on their marriage, if it was valid where entered into.”67 Even though marriages contracted in Indiana between relatives for whom sexual behavior is criminalized would not be valid,68 the statute leaves open the possibility that such a marriage contracted elsewhere may be considered valid, which would provide a full defense to a prosecution for criminal incest. Similar exemptions for marriage partners apply in Louisiana,69 Maine,70 Michigan,71 Ohio,72 and South Dakota.73

One might argue that this is an expression of interstate comity and nothing more. On this reading, a statute such as Indiana’s merely acknowledges that a couple’s relationship cannot be so offensive to public policy if the marriage is valid elsewhere in the country or that the citizens’ reasonable expectations and deference to other states’ laws favor exempting that couple from criminal prosecution.

On another reading of the statute, however, the exemption prominently underscores how the all-important marriage can intrude on incest laws and effectively turn them on their head. Sexual relations that would have been criminally prohibited are transformed, by virtue of a marriage contracted in a particular location, into sexual relations that are legally encouraged. Two potent norms have collided: the married couple should not be in a sexual relationship because they are family, and yet they should be in a sexual relationship because they are married and have begun a new family. States with marriage excep-tions seem to resolve this tension by privileging the new family’s condoned sexuality over the old family’s prohibited sexuality. These norms obstruct consistent enforcement of incest laws on the basis of nonconsent. Even if a state like Indiana had premised its incest laws on nonconsent, the exception for marriage partners focuses the law instead on whether the marriage is technically valid: if it is, the sexual unions are condoned; if not (such that the norm surrounding the sexual marriage is not in play), the relations are criminalized.

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