Laws regarding incest
|Marriage and other
equivalent or similar unions and status
|Validity of marriages|
|Dissolution of marriages|
|Private international law|
|The Family and the Criminal Code
(or Criminal Law)
Laws regarding incest (i.e., sexual activity between family members or close relatives) vary considerably between jurisdictions, and depend on the type of sexual activity and the nature of the family relationship of the parties involved, as well as the age and sex of the parties. Besides legal prohibitions, at least some forms of incest are also socially taboo or frowned upon in most cultures around the world.
Incest laws may involve restrictions on marriage rights, which also vary between jurisdictions. When incest involves an adult and a child, it is usually considered to be a form of child sexual abuse. Age of consent laws do not have a bearing on incestuous sex, which is unlawful irrespective of age.
- 1 Degrees of relationship
- 2 Latin America
- 3 Oceania
- 4 Europe
- 5 North America
- 6 Asia
- 7 Africa
- 8 See also
- 9 References
Degrees of relationship
Laws regarding incest are sometimes expressed in terms of degrees of relationship. The consanguinity (but not affinity) relationships may be summarized as follows:
|0||identical twins; clones||100%|
|2||full siblings||50% (2−2+2−2)|
|2||3/4 siblings or sibling-cousins||37.5% (2−2+2⋅2−4)|
|2||half siblings||25% (2−2)|
|4||double first cousins||25% (2−3+2−3)|
|3||great grandparent-great grandchild||12.5% (2−3)|
|4||first cousins||12.5% (2⋅2−4)|
|6||quadruple second cousins||12.5% (8⋅2−6)|
|6||triple second cousins||9.38% (6⋅2−6)|
|4||half-first cousins||6.25% (2−4)|
|5||first cousins once removed||6.25% (2⋅2−5)|
|6||double second cousins||6.25% (4⋅2−6)|
|6||second cousins||3.13% (2−6+2−6)|
|8||third cousins||0.78% (2⋅2−8)|
|10||fourth cousins||0.20% (2⋅2−10)|
The degree of relationships is calculated by counting the number of generations back to a common ancestor. Most laws regarding prohibited degree of kinship concern relations of r = 25% or higher, while most permit unions of individuals with r = 12.5% or lower. In some US states, cousin marriages are prohibited. Also, most laws make no provision for the rare case of marriage between double first cousins. Incest laws may also include prohibitions of unions between biologically unrelated individuals if there is a close legal relationship, such as adoption.
Incest in Argentina is legal if both individuals are over the minimum age of consent. Marriage between 3rd degree relatives and beyond is allowed, with the exception of marriage involving lineal ancestors and descendants, which is considered null and void disregarding the degree of separation (parent/offspring, grandparent-grandchild).
In Brazil, any kind of sexual interaction between consanguineous human beings, or between human beings in a familial relationship by adoption or by marriage of a parent, is regarded as incest. It has no criminal punishment if the involved are over the age of 14 (the clear age of consent in force; before 2011, though, sex with people as young as 12 and as elder as 17 was in a legal grey area, with legal guardian-reported sex with those aged 12 and 13 being prosecuted as statutory rape, but unlike as with those aged 11 and younger not directly prosecuted by the State without a report by either the legal guardians or the adolescents themselves – unlike now, where the police forces prosecute all statutory rape-related cases without distinction –, and legal guardian-reported sex with those aged 14, 15, 16 and 17 being prosecuted as corruption of minors, but prosecution as corruption of minors for non-commercial consented sexual activity between people out of a defined hierarchy fell), capable of acting upon their legal rights, and that consent means that the relationship is absent of any kind of coercion or fraud.
First cousin marriages, once fairly common in some regions in the 19th century, are allowed in demand as all other marriages, while avunculate ones (those between uncles or aunts and nephews or nieces), the preferred by some Amazonian Amerindian tribes, and those between half-siblings, are allowed provided that those contracting it have a health check. Marriages between parents and their children (both consanguineous and adoptive) or between siblings (both consanguineous and adoptive) are invalid, but, as stated above, non-rape sexual relationships between persons older than the age of consent are likely otherwise treated legally as all others, irrespectively of consanguinity (information over the possibility or validity of uniões estáveis in such situations are nevertheless unclear or unexistent, but since those in these relationships are already consanguineous and thus inherently inside a legal family entity, the rights offered by such unions – recognizing a family entity between unrelated single persons – are most likely pointless, with the exceptional cases being only the remote possibility of people who were adopted contracting a relationship with a biological close family member).
Brazilian law, by the Article 1521 of the Civil Code, also extends the invalidity of marriage between parents and children to grandparents and grandchildren or any other sort of ascendant-descendant relationship (both consanguineous and adoptive), parents-in-law and children-in-law even after the divorce of the earlier couple (see affinity), as well as to stepparents and stepchildren, and former husbands or wives to an adoptive parent who did this unilaterally (regarded as an equivalent, in families formed by adoption, to stepparents and stepchildren); and extends the invalidity of marriage between siblings to biological cousin-siblings. It also formerly prohibited the avunculate marriages and extended the prohibition for marriage between siblings to half-siblings, both cited above, but the Decrete Law 3.200/1941 made marriage possible for those non-ascended/descended in consanguinity of third degree (25%) provided both have health checks.
Brazilian law never held marriages between double first cousins as a reason for invalidity, even though those have a consanguinity as strong as that of half-siblings, and those, as other first cousins, are not asked health checks to marry, doing so in the same way as non-related people. Also legally treated much like non-related people are stepsiblings, while those who are stepsiblings and half-siblings (that is, those who have a half-sibling who is also child of a latter married spouse of one's parent) are treated like half-siblings who are not stepsiblings, being demanded health checks before marrying.
Consensual sexual activity between adults (18 years of age or older) is a human right in all jurisdictions in Australia under the Human Rights (Sexual Conduct) Act 1994 (Cwth). The Act was passed directly to overturn the Tasmanian sodomy laws dealt with in Toonen v. Australia, but may also apply to incestuous relationships if the parties are over the age of 18, and puts into question at least some aspects of state laws on the statute books.
In Australia, section 23B of the Marriage Act 1961 prohibits marriage to an opposite-sex ancestor and descendant or sibling (including a sibling of half-blood), including those traced through adoption. The Act does not prohibit marriage between first cousins or opposite-sex uncle-niece and aunt-nephew marriages (avunculate marriage), provided both parties are of marriageable age (people aged 16 or over). These relationships have the same genetic relationship as do grandparents with their grandsons and granddaughters and half-siblings have with each other (r=25%).
In all jurisdictions except New South Wales, incest is sexual intercourse between a "lineal ancestor" and a "lineal descendant". In New South Wales, incest takes place between "close family members", which are "parent, son, daughter, sibling (including a half-brother or half-sister), grandparent or grandchild, being such a family member from birth". Incest generally only applies in cases where a participant is aged 16 or over (the age of consent in that state); and where the participant is aged between 10 and 16 years of age an older participant would generally be charged with sexual intercourse with a child under the age of 16, while cases in which a participant is under 10 an older participant would generally be charged with sexual intercourse with a child under the age of 10.
In Queensland, unlawful incest includes sexual intercourse between an uncle or aunt with their niece or nephew, although here its application is curtailed by the effect of the federal Marriage Act 1961, as the Queensland Criminal Code states that the crime of incest does not apply to “persons who are lawfully married or entitled to be lawfully married”. Thus it is not incest for a niece aged 16 or over to engage in sexual intercourse with their uncles and a nephew aged 16 or over may engage in sexual intercourse with their aunts, but same-sex uncle-nephew and aunt-niece sexual intercourse may be unlawful even in the case of consenting adults, as the Marriage Act does not allow same-sex marriage.
In all other jurisdictions, incest can also arise where one of the parties is below the age of consent, but this does not exclude the possibility of bringing the more general charge of sexual intercourse with a child under the age of 10 (New South Wales and Northern Territory), 12, 16 or 17 (South Australia and Tasmania) as the case may be. This is particularly relevant where a certain form of sexual conduct between related persons falls outside of the legal definition of incest in a particular jurisdiction.
In no Australian state or territory is consent a defense to incest. The maximum penalty for incest varies: eight years imprisonment in New South Wales; 10 years imprisonment in South Australia; 20 years imprisonment in Western Australia and the Australian Capital Territory; 25 years imprisonment in the Northern Territory, Victoria and Tasmania; and life imprisonment in Queensland. After one conviction for incest, the offender's name is placed on the Sex Offenders Register for 15 years, while any offender with two or more convictions for incest has their name placed on the Register for the remainder of their life.
Some forms of incest are illegal in New Zealand. Incest is illegal between:
- parents and children (both biological and adopted)
- grandparents and grandchildren (both biological and adopted)
- full and half siblings
It is a defence if the person was unaware of the relationship at the time of the act. A conviction for incest attracts a maximum penalty of 10 years imprisonment. Incest is the only sexual crime punishable by seven years or more imprisonment that is not subject to the country's "three-strikes" law.
It is also illegal in New Zealand to have a sexual connection with a dependent child under 18; this includes step-children, foster children and wards. A conviction for having a sexual connection, or attempting to have a sexual connection, with a dependent child attracts a maximum penalty of 7 years imprisonment.
Most European countries have laws against incest between lineal ancestors/descendants, and between full siblings. However, in most countries these laws are no longer enforced if the incest takes place between consenting adults.[not in citation given]
In Denmark, incest between lineal ancestors and descendants and between full siblings is prohibited. Sex with a descendant is punishable by up to six years in prison. Sex between siblings is punishable by up to two years in prison. It is defined in paragraph 210 in the Danish penal law
In Finland, sexual acts between one's full sibling (but not half-sibling), ancestor or descendant is punishable from a fine up to 2 years in prison for "sexual act between close relative". But it will not be punished if the person in question has been under 18 years old when have performed the sexual act with parent or grandparent or the person have been forced or illegally persuaded to perform the sexual act. The marriage law defines, that marriage between one's sibling, half-sibling, ancestor or descendant is forbidden.
France and Belgium
The 1810 penal code promulgated by Napoleon I and adopted throughout most of Europe abolished incest laws in France and Belgium. On 27 January 2010, France reinstated laws against incest. The new law, however, defines incest as rape or sexual abuse on a minor "by a relative or any other person having lawful or de facto authority over the victim". Incest between consenting adults is not prohibited.
In Germany, incest is punishable by law if consummated between people related by blood in direct line only, therefore between parents, grandparents, great-grandparents and their children, grandchildren, great-grandchildren plus among siblings and half siblings. The penalty is a fine or up to 3 years of prison. Incest between relatives who are minors (below 18 years old) at the time of offence is not punishable but remains a crime, therefore aiding and abetting of incest between related minors is punishable. Only vaginal intercourse ("Beischlaf") is punishable, other forms of sexual activity remain exempt from punishment.
Regarding marriage, the same rules apply and prohibit marriage between aforementioned relatives.
The criminal liability of incest among consenting adults is disputed in Germany. In the case of Patrick Stübing, the Federal Constitutional Court ruled in 2008 that the criminalization of incest is constitutional in a 7:1 vote with one judge dissenting.
Republic of Ireland
It is illegal for a male to have sexual intercourse with his granddaughter, daughter, sister (including half-sister), or mother; and for a female (over sixteen years of age) with her grandfather, father, brother (including half-brother), or son. The act does not refer to other familial relationships (such as grandson-grandmother), or same-sex relations.
It is punishable by up to seven years imprisonment for a female and up to life imprisonment for a male. The maximum sentence for males was increased from seven years to twenty years by the Criminal Justice Act, 1993; and further increased to life imprisonment by the Criminal Law (Incest Proceedings) Act, 1995.
The maximum sentence for females has never been increased from the seven years specified in the original 1908 act. A private members' bill introduced in 2012 by Denis Naughten TD attempted to redress this inequality in sentencing by increasing the maximum sentence for females to life imprisonment. However, during a speech made during the second stage reading of the bill in March 2014, Justice Minister Alan Shatter TD stated that while he was not opposed to the bill in principle, a sexual offences bill announced by the government on 17 December 2013 will "include measures to equalise upwards the penalties for incest by male and female offenders" and also "take a more comprehensive approach to reform of the law in this area".
|This section does not cite any references or sources. (September 2013)|
Incest is illegal in Italy and incestuous sexual activity between two adults is punishable by up to 10 years imprisonment. If one of parties is a minor, it is punishable by up to 25 years imprisonment and the other party will be labeled a "Sex Offender" if convicted.
In Poland, incest is defined in Article 201 of the Penal Code as sexual intercourse with an ancestor, descendant, guardian, ward, brother, or sister, and is punishable by imprisonment for no less than 3 months and no more than 5 years.
Incest is not specifically prohibited under Portuguese law.
Incest with a direct descendant or between siblings is punished by Romanian criminal law by up to 7 years in prison. A new Penal Code, scheduled to enter into force in 2014, will maintain consensual incest as a criminal offense, however the maximum penalty will be reduced to 5 years.
In Russia, consensual sex between adults, including incest, is not a crime. However, under the Family Code of Russia, persons who are related lineally, siblings, half-siblings, and a stepparent and a stepchild may not marry.
Article 213 of the Swiss Penal Code prohibits incest. Intercourse among siblings or other persons related by blood in direct line is punishable by up to three years imprisonment. The federal government proposed to abolish this prohibition in 2010, arguing that in the few cases where persons were convicted of incest (three since 1984), other sexual crimes such as child sexual abuse were also committed.
Incest is illegal in Scotland, England, Wales, and Northern Ireland. It is defined as sexual intercourse between a person and their parent (including adoptive parent), grandparent, child, grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece. It is punishable with up to two years' imprisonment. For familial child sex offences (sex with a family member under 18 who lives in the same household), the relationship definitions include step-parents, step-siblings, first cousins, current and former foster parents and current and former foster siblings.
Under Canadian law, incest is defined as having a sexual relationship with a sibling (including half-sibling), child/parent or grandchild/grandparent while knowing the existence of the blood relationship. It is punishable by up to 14 years imprisonment. A person who commits incest with someone under the age of 16 is liable to a minimum imprisonment of 5 years. A conviction for incest also places the offenders on the Sex Offenders Registry for the rest of their life.
In the United States the District of Columbia and every state have some form of codified incest prohibition. However, individual statutes vary widely. Ohio only targets parental figures, and New Jersey does not apply any penalties when both parties are 18 years of age or older. A conviction for incest attracts the following penalties by state:
- 5 years imprisonment in Hawaii, Florida
- 10 years imprisonment in North Dakota, South Dakota, Wisconsin, and Minnesota
- 14 years imprisonment in California, Oregon, Washington, Alaska and Idaho
- 15 years imprisonment in Connecticut, Maryland, Delaware, Virginia and West Virginia
- 20 years imprisonment in Massachusetts, New York, New Hampshire, Maine, Pennsylvania, and Vermont
- 25 years imprisonment in Kansas, Nebraska, Arkansas, Missouri, Oklahoma, Texas, Arizona, New Mexico, Nevada, Colorado, Wyoming, Iowa, Illinois, Indiana and Kentucky
- Life imprisonment in Georgia, Alabama, Mississippi, Louisiana, North Carolina, South Carolina and Tennessee.
Three convictions or more of incest also require the offenders to register as "Sex Offenders"
In all states, close blood-relatives that fall under the incest statutes include:
In some states, sex between first cousins is prohibited (see cousin marriage law in the United States by state for cousin sex, as well as cousin marriage, being outlawed in some states). Many states also apply incest laws to non-blood relations, including stepparents, step-siblings, and in-laws.
People's Republic of China and Taiwan
In Taiwan, officially the Republic of China (ROC), Article 983 of the Civil Code prohibits marrying any lineal relative by blood or by marriage, collateral relative by blood if is within the sixth degree of relationship (except relative by adoption who is of the same rank), or if collateral relative by marriage is within the fifth degree of relationship of a different rank. Relatives by marriage or adoption are prohibited marriage and cannot marry even after the marriage or adoption has ended. The degree of relationship is calculated vertically, therefore a sibling is within the second degree of relationship. The Judicial Yuan Interpretation No.32 and No.91 allows marriage between siblings by adoption when the adoption was intended for the marriage. When the interpretation was made, it was not uncommon for parents to adopt a child so that their own child can marry the adopted child when both children have grown up. Article 230 of the Penal Code prohibits sexual intercourse between any lineal relatives by blood or collateral relatives within the third degree of relationship by blood. Violators may be imprisoned for up to 5 years. Both Taiwan (ROC) and the People's Republic of China have Civil Law based legal codes.
Incest between close relatives, even if it involves consenting adults, is illegal in Hong Kong with punishment of up to 20 years imprisonment for male offenders and up to 14 years imprisonment for female offenders. However, as the CAP 200 Crimes Ordinance of May 1998 only addresses male-on-female and female-on-male sexual intercourse, it appears same-sex incest is not illegal. The law does also not criminalize sexual intercourse with more distant relatives such as an aunt, uncle, niece, nephew and cousin.
Men convicted of having sexual intercourse with a woman who, to his knowledge, is his granddaughter, daughter, sister or mother, is liable to 14 years of imprisonment. If the woman is under the age of 16 the male offender may face up to 20 years of imprisonment. In the event a man attempts to incite a woman under the age of 16, who he believes is his granddaughter, daughter or sister, he faces up to 10 years of imprisonment. Additionally, if the woman is under the age of 21 and the male offender has authority over her, the court has the power to divest the offender of all authority of the female.
Women aged 16 or older, who permit their grandfather, father, brother or son to have sexual intercourse with her, may be sentenced to up to 14 years of imprisonment. Hong Kong law makes assumption that female below the age of 16 have no ability to make consent on sexual intercourse, therefore female below 16 cannot commit incest. Also, it is illegal for male to have sexual intercourse with any female under 16. The law also provides no increased punishment for female offenders if the male is under the age of 16, and no mention is made of divesting female offenders of authority over the male.
The Indian Penal Code (IPC) does not contain any specific provisions against incest. It is not even the matter jurisdiction here, it is thus but naturally and clearly prohibited. If the victim of incest is a minor, it is treated as a case of child sexual abuse under Section 90 of the IPC which deals with sexual abuse of children. Under the IPC, "there is no specific provision in the Indian law as regards to sexual abuse of children by parents or teachers. Such acts are covered by the general provisions relating to sexual abuse of children by their custodian, in whatever capacity they may be. including khap and indian scripture views.
Incest is illegal in Malaysia, but it is unclear to which family members this extends. The law defines incest as sexual intercourse with another person whose relationship to him or her is such that he or she is not permitted, under the law, religion, custom or usage applicable to him or her, to marry that person.
In addition to whipping, persons convicted of incest face a minimum sentence of 6 years of imprisonment and a maximum sentence of 20 years of imprisonment. It is a defense against the charge if the person did not know the relationship was not permitted or if the sexual intercourse was done without his or her consent. Girls below the age of 16 and boys below the age of 13 are deemed to be incapable of giving consent.
While it is unclear to which family members the incest law extends, a verdict from the High Court in Sabah and Sarawak in June 2011 provided some details about the sentencing guidelines. It described incest as a "heinous crime" but that the degree of kinship between the parties dictates the "level of repulsion" which the court translates into a sentence imposed. The verdict said the worst on such a scale is incest committed by a father to his biological daughter or a brother to his biological sister, and that such offenders should receive the harshest sentence. It said an uncle and his maternal niece committing incest is not on that same level and, if there was no violence involved, the length of the sentence should reflect it.
There are more severe sentences for those who commit incest through rape. The offense incestuous rape is punishable for not less than 8 years of imprisonment and not more than 30 years of imprisonment. In addition, those convicted receive not less than 10 strokes.
Malaysian law also considers sexual intercourse with the stepfamily of an accused to be incestuous. A 54-year-old police officer was charged in March 2012 after allegedly committing incest with his 15-year-old stepdaughter.
Consensual incest between adults is legal in Turkey. Sibling marriage and avunculate marriage is prohibited, while cousin marriage is legal. Marriage between parents and offspring is also prohibited, even when there is no blood relationship, i.e. adoptive parent or parent-in-law.
Côte d'Ivoire (Ivory Coast)
In South Africa, incest is a statutory crime according to the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007. The act defines the offence of incest as sexual penetration between persons who are related:
- lineally, that is, if one person is a direct descendant of the other.
- within the first degree of consanguinuity, that is, where one person is a direct descendant of a parent of the other; this category includes siblings as well as an uncle or aunt with a niece or nephew.
- within the first degree of affinity, that is, where one person is the direct ancestor or descendant of the spouse of the other person.
- as adoptive parent and adopted child.
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