The Magic Word Is “Consent”: A Response To “The Libertarian And Incest”
“Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.”
Many years ago I had a romantic relationship with an underage girl. We were both teenagers, separated in age by a few years, but she was under the age of consent and I was of legal age. And during my freshman year of college, I had a few trysts with another college freshman; she was 17.
I reference these events from my personal life to convey I’ve had some experience regarding issues of age of consent. I’m not saying I’m uniquely qualified to discuss and analyze laws regarding age of consent, but I have given this matter substantial thought back then, and am doing so currently due to an article published July 27 on this website.
One of the most frustrating things regarding age of consent laws is their arbitrary nature and a lack of federal uniformity. It is a state by state issue, and currently they range from 16 to 18 years of age, though in the past certain states had them much lower and much higher than today’s mean age. In 1880, most states had a range of 10 to 12 years, with Delaware having the lowest legal age of seven; some states have had 21 as their legal threshold. Over the years, many states have modified their ages of consent up or down. Hawaii was the last state to enact a law in keeping with today’s average, raising theirs from 14 to 16 in 2015.
In the past, much of the justification for legal ages were due to morality laws, but today’s age of consent laws exist primarily to keep teenage pregnancy from becoming more widespread. While that reasoning is admirable, to a point, so that the law is worthwhile, there still exists some arbitrariness regarding at what age an individual is deemed capable of giving consent to have sex, as evidenced by the ages varying from 16 to 18.
What is not arbitrary, despite arguments to the contrary, are laws that ban incestuous relationships. This is due to the fact that children born from incest have a very high, about 50%, chance of suffering from birth defects.
In his article for Being Libertarian titled “Neither Prescribing Nor Proscribing: the Libertarian and Incest”, wrote:
“I’m not talking about sexual abuse or the exploitation of minors or dependents. Such incest should be illegal and such exploitation should be met with severe legal consequences. The case that I set out here is for it being legally permissible for relatives to engage in romantic and sexual relations, providing both (or all!) parties are freely and knowingly consenting adults.”
At first glance, it would seem a reasonable argument in keeping with libertarian doctrine; adults should be allowed to engage in any activity they want so long as force and harm are not present in the engagement of said activity. However, upon a more thorough examination and analysis, it is clear the issue of incest and attendant consent is more complex and nuanced than that of consent given by individuals who do not meet the legal age threshold. This is due to the fact that those engaging in an incestuous relationship may be incapable of giving consent.
Richard P. Kluft, MD, PhD writes:
“It has often been argued that incest between age peers (with neither partner more than 5 years older than the other) is nonabusive, mutually desired, and often consists of nothing more than experimentation. It is dubious whether this generalization will stand up to more detailed scrutiny. While such instances occur, proximity in age need not bring with it equality of power, knowledge, and sophistication. In fact, implied or actual coercion and intimidation play a role in many such situations. Many instances of sibling incest, rationalized as youthful experimentation, are profoundly exploitive. Families often accept that something has occurred between a brother and a sister, but give no credence to the sister’s protest that what occurred was forceful, and/or involved the brother’s making her available to his friends. And, there are more frequent reports of older sisters who take the initiative in sexualizing younger brothers.
The close relationship between perpetrator and victim complicates the trauma of the incestuous act or acts with both relational trauma and betrayal trauma. Relational trauma,…“significant loss of trust in others and increased anger, hurt, and confusion about their family relationships, changes in beliefs about the safety of close relationships, changes in beliefs about the safety of close relationships in general, and negative views of the self in relation to others.” Betrayal trauma,…encompasses the unique hurt associated with violation by those who have a basic obligation and duty to protect and nurture and extends to those who refuse to believe or help the victim, adding to the victim’s traumatization. The threat to attachment needs is so profound that the victim may be impelled to disavow the betrayal that he or she has experienced.
Furthermore, incest often leads to traumatic bonding, a form of relatedness in which one person mistreats the other with abuse, threats, intimidation, beatings, humiliations, and harassment but also provides attention, some form of affection, and connectedness. The victim becomes accustomed to linking mistreatment with a perverse form of caring.”
“Attempts have been made to describe motivational categories of incest…:
- Affection-based: the incest provides closeness in a family otherwise lacking in nurture and affection. There is an emphasis on the specialness of the relationship, within which otherwise unavailable caring is given and received.
- Erotic-based: the family atmosphere is one of chaotic pansexuality, and it is not uncommon for many members to be involved. Its norm is the erotization of relationships. The term “polyincest” is often used to describe such multiple-perpetrator situations.
- Aggression-based: the incestuous acts involve the perpetrator’s sexualized anger. The perpetrator vents his or her frustration and conflicts on a vulnerable individual, and physical mistreatment is often involved.
- Rage-based: the perpetrator is hostile and may be overtly sadistic. There may be great danger to the victim.”
Decriminalizing incest removes protections for abuse victims since consent most likely cannot truly be given by either party of an incestuous relationship.
Ironically, keeping incest laws on the books, so that family members conduct clandestine affairs rather than make them publicly known, would protect them more, then decriminalization. This is because incest is such a social taboo that those who engage in it will suffer social ostracization to such an extent that they may have trouble finding and keeping employment and might suffer from harassment that could become physical assault. People who want to engage in illegal acts will do so regardless of legality, but if they do not make it public due to the fact that it is illegal, they face less of a chance of being ostracized. Legalizing incest could lead to normalization. It is not normal, and most likely at least one party of an incestuous relationship suffer from mental illness. They need treatment; they don’t need their legal protections to be revoked.
Norris lists a caveat for the legalization of incest:
“[I]ncest ought to be legally permissible provided that every reasonable precaution is taken to avoid pregnancy, since the absence of such precautions would risk a violation of our caveat. Post-menopausal, homosexual, and infertile (be that through natural causes, a vasectomy/sterilisation, or something else) participants would be unaffected, and only those at a risk of pregnancy through penile-vaginal penetration ought to be required to use some form of birth control. Some of this talk of requiring birth control might seem uneasy to more absolutist libertarians, but it seems to me to be the truest libertarian – rather than anarcho-capitalist – perspective.”
Despite Norris’ assertion, it is safe to say that not only would “absolutist libertarians” feel uneasy by the contraception requirement, but so would conservatives and liberals. How would this be enforced? The most effective way would be to have agents of the state co-habitating with an incestuous couple so as to monitor them to ensure they are complying with the contraceptive requirement, but of course the 3rd Amendment prevents that from occurring. Being arrested for incest, similar to being arrested for sodomy prior to the SCOTUS case Lawrence v. Texas which overturned sodomy bans, requires the police to invade a home and catching a couple in the act. Almost certainly an arrest due to violating incest laws would violate an individual’s 4th Amendment protections as law enforcement would need evidence with which to support a warrant to search a home for the commission of incest. How would they come across that evidence if a couple keep their affair secret? Community gossip? Judges don’t, or they at least are not supposed to, sign warrants based on anecdotal evidence.
So Norris believes that removing incest bans from the books would expand freedom, but that expansion is short-lived and would actually lead to an increase in statism since his caveat would expand America’s current police/surveillance state.
There is another precedent set by Lawrence v. Texas that Norris does not address (though this is understandable seeing as he is British and probably not as familiar with American case law as I am, so I can’t rake him over these particular coals too strenuously). Lawrence v. Texas found the sodomy bans unconstitutional in part because Texas’s sodomy ban was written with only homosexuals in mind. A heterosexual couple could engage in sodomy and oral sex without breaking state law; homosexuals were engaging in an illegal act. SCOTUS’s Lawrence v. Texas majority opinion held that this was a violation of the 14th Amendment.
The same possibility extends to Norris’ proposed law and its caveat. Why shouldn’t parents of a child with birth defects as a result of a consanguineous relationship not be afforded the same protections and legal status that parents of a non-consanguineous child enjoy? Additionally, like with abortion (depending upon the “age” of the fetus), there is another entity involved in this matter. Those affected by legal action against an incestuous couple are not limited to the couple when there is a child resulting from the affair. As such, that child has individual rights that must be protected, which extend from rights guaranteed by the 14th Amendment. Norris’ contraception caveat would eventually be struck down.
In his response to critics of his first article, Norris wrote, “If sexual or romantic relationships between freely consenting adults are deemed to be the state’s business, then there’s a dangerous precedent for the state intruding in the bedroom…” Norris is correct that any state intrusion into our bedrooms must be viewed with a critical lens and some wariness. But just because we libertarians bristle at the thought of the state regulating what occurs in the privacy of our bedrooms it does not mean that laws banning incest are completely without justification and/or merit.
Ralph Waldo Emerson said, “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” We must have laws that are neither capricious nor inconsistent with America’s federal, state and local legal codes. With apologies to Norris (I do not wish this to be misinterpreted as an ad hominem against him), who fancies himself a philosopher, Emerson’s quote is incredibly applicable to Norris’ article, as well as to statesmen (both legislators and judges) who may seek to overturn incest prohibitions since they would do so, at least for now and the foreseeable future, against the consent of the governed. The vast majority of Americans believe incest to be immoral and harmful to both individuals and society.
Our system of government is a representative one. If social regulation, as well as social deregulation, is passed despite the overwhelming opposition of the populace, libertarians, as well as conservatives and liberals, should voice their opposition. Sometimes, repealing socially regulative laws that which would theoretically expand freedom is tyrannical, and all citizens should be wary of such inclinations.
Libertarians, as well as most conservatives, rightly champion civil institutions over that of government in influencing and being the arbiter of the American experiment. Incest has a profound effect on intra-family relationships. Starting with President Lyndon Johnson’s Great Society, liberal progressives have done so much over the past decades to undermine the responsibilities and obligations of families and replace the family with government; society is not better off as a result. Repealing incest bans would further erode familial stability, which is one of the most important building blocks of a free society. Individuals from broken homes are less likely to be self-reliant, prosperous and peaceful. Decriminalizing incest could lead some people to believe it is a valid form of romantic expression.
It is not. Maintaining the illegality of incest Does the prohibition of engaging in romantic and/or sexual relationships with a family member equate to a prohibition of engaging in any romantic and/or sexual relationships? Of course not. There are many fish in the sea, and they need not only swim in a school comprised of the same batch of eggs.
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