Argument: Consenting adults have a right to engage in incest
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Justice Anthony Kennedy: "The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."
"The Right to Adult Incest". Charter Blog. October 22, 2008 - The couple appear to have confessed to a crime under South Australia’s Criminal Law Consolidation Act:
Any persons who, being related, either as parent and child or as brother and sister, have sexual intercourse with each other shall be guilty of incest and liable to be imprisoned for a term not exceeding seven years.
Indeed, they were actually convicted of this crime this year and were sentenced to a good behaviour bond.
But there’s a major problem here: Australia’s toughest human rights law, the Human Rights (Sexual Conduct) Act 1994 (Cth), which says:
- 4 (1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.
Those who recall the debate about the Commonwealth law in 1994 will also recall that the question of adult incest was very much discussed at the time (though, alas, the relevant discussion in the Senate Legal and Constitutional Affairs Committee, not to mention the explanatory memorandum to the Bill, do not seem to be available online. The internet, it seems, only began in 1995.)
Section 4 and Charter s. 13(a), of course, both promote the privacy right in Article 17 of the ICCPR. However, importantly, in stark contrast to the Charter, the Commmonwealth’s Act overrides all other laws (with the likely exception of subsequent Commonwealth laws, but those don’t seem to be in play here.) Moreover, the Act cannot be retroactively repealed (thanks to a High Court decision about s. 109 of the Constitution, which governs the interaction between federal and state laws.) So, if s4(1) overrides the South Australian law on incest, then not only did this couple act lawfully, but they also can continue to do so - despite the bond - at least until the Commonwealth parliament repeals or amends its Act.
Wow. But there are two burning (legal) questions. First, is the Commonwealth Act constitutional? The High Court was asked this question in Croome v Tasmania  HCA 5 but never got to resolve it because the Tasmanian parliament repealed the laws (on sexual conduct against ‘the laws of nature’) that was at issue in that case. The Court did, however, rule that Croome, by confessing to Tasmanian police that he had had sex with a man, had standing to challenge the law (even though he was never prosecuted.) The SA couple pbviously have standing. Indeed, the news reports say that the police are ‘closely monitoring’ them. Ew.
Second, what effect does s4(1) have on the South Australian Act? Let’s see: the couple evidently engaged in sexual conduct; they are both adults; they certainly sound like they consented - and that’s what the sentencing jduge found - and they (presumably) acted in private (despite being a little more public about it after the fact than some). This leaves two subsidiary questions: (a) would a prosecution under s72 interere with their privacy, within the meaning of Article 17 of the ICCPR? It would certainly intefere with the couple’s sex life, but I guess you have to wonder whether everyone’s sex life - even their consensual sex life done in private - is always private. (b) and would any such interference be ‘arbitrary’? That raises, of course, the very tricky issue of whether - leaving aside the horror of sexual acts performed on children - there is actually anything much wrong with incest. The three usual suspects are (i) morality; never a strong argument for a breach of rights; (ii) a suspicion of coercion; arguably dispelled here because the couple only met recently (at least on on some accounts.) The Advertiser has some expert blathering about ‘genetic sexual attraction’. (iii) harm for any offspring. There is certainly off-spring here and, according to the sentencing remarks, an earlier child of the couple died from genetic defects. The current child - the only one apparently conceieved in South Australia - seems fine. But there’s also the (somewhat self-fulfilling) spectre of stigma.