Sex Crimes

Student Post - On Romania's Consideration of Whether to Decriminalize Consensual Incest

All 50 United States and the District of Columbia have made incest, even when consensual, illegal.  Yet, in Europe, incest is not always a crime. 

As a recent article by the Associated Press noted France, Spain, and Portugal do not prosecute for crimes of incest for consenting adults, and that Romania is considering decriminalizing consensual incest. Romania is currently reforming its entire criminal code, and in doing so is considering decriminalizing incest between consenting adults.  As it now exists, Romania considers ALL FORMS of incest punishable for up to 7 years in prison.  The change is being contemplated by Romania’s Justice Ministry to become more legally similar to some other European Union members. 

Justice Ministry legal expert Valerian Cioclei, as quoted in the Associated Press, states: “Not everything that is immoral has to be illegal. We cannot help these people by turning them into criminals and punishing them.”

What am I missing? It’s not the law, in this case, that would be turning these people into criminals, it is their actions. A murderer, for example, doesn’t need a conviction to be a murderer.  And yes, while we might not necessarily be helping these criminals by punishing them, we certainly are helping society, at large, in validating that certain actions, whether moral or immoral, are illegal, period.

Thankfully, it seems like Romania will resist.  The Associated Press notes that strong opposition exists among some lawmakers in the ruling coalition and that newspaper articles in Romania have criticized the proposed change.  The Ministry’s response is that “incest cannot be stopped with criminal sanctions, but with medical and social measures, because incest is based on pathological factors.”  While I agree that incest may be based on pathological factors, that does not mean it cannot be stopped with criminal sanctions nor does it mean that it should not be punished.  Many would argue the same exact thing for many other disorders that cause people to act in illegal ways.  Where do we draw the line?

New on SSRN

There a couple interesting new sex-crime related articles up on SSRN.  First, there is an article by Jenny Roberts at Syracuse titled The Myth of Collateral Consequences of Criminal Convictions: Involuntary Commitment of Sexually Violent Predators. The article is forthcoming in the Minnesota Law Review. Here is the abstract:

For many defendants, the criminal case does not end when the sentence is over. Instead, it follows them out of the courthouse or prison doors in the guise of collateral, or non-penal, sanctions. The last several decades have seen unprecedented expansion in the number and severity of the collateral consequences of criminal convictions, which include sex offender registration, deportation and bars on employment and housing. Perhaps the most severe consequence is the involuntary commitment of sexually violent predators. Nineteen states have now passed statutes, commonly known as Sexually Violent Predator Acts (SVPAs), which are being used to indefinitely confine thousands of men after they are released from prison.

The recent proliferation of these statutes has inspired scholars to critically examine the cost, effectiveness and constitutionality of SVPAs. This Article examines involuntary commitment from the perspective of defendants in the guilty plea process. It is hard to imagine a more severe abridgement of one's liberties than involuntary commitment. Despite this, courts have consistently ruled that defendants have no constitutional right to be told that their guilty pleas could lead to involuntary commitment in a mental institution or prison-like setting for the remainder of their natural lives. Indeed, under the collateral consequences rule, the Due Process Clause and the right to counsel under the Sixth Amendment have been interpreted to require warnings of only the direct consequences of guilty pleas, meaning the actual penal sentence.

This Article exposes the fiction of the direct-collateral divide and examines the doctrinally-flawed rationale for the collateral consequences rule. It also critiques the rule for its singular focus on the extra-constitutional values of finality and efficiency in the administration of criminal justice. The current rule ignores the constitutional protections relevant to guilty pleas, with their underlying purpose of ensuring that defendants know what they are getting themselves into when they plead guilty. Finally, the Article proposes a unique approach to this constitutional question so as to bring rationality to the intersection of collateral consequences and guilty pleas and to inject the defendant's perspective into the process. A defendant should be entitled to pre-plea warnings about consequences, direct or collateral, whenever a reasonable person in the defendant's situation would deem knowledge of those consequences to be a significant factor in deciding whether or not to plead guilty. A test of reasonableness, common in other areas of constitutional criminal procedure, would bring much-needed transparency to the plea process.

Also up is an article forthcoming in the Boston University Law Review by Jennifer Collins, Ethan Leib, and Dan Markel titled Punishing Family Status.  Here is the abstract:

This Article spotlights two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by first revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens or penalties that impose punishment upon individuals on account of their familial status. The six burdens we train our attention on are omissions and vicarious liability, incest, bigamy, adultery, and failure to pay child support.

Part II then develops a framework for the normative assessment of these family ties burdens, asking in which ways can these laws be properly understood as burdens. By looking at these sites synthetically, we also uncover a latent rationale for these family ties burdens: namely, the promotion of voluntary care-giving relationships. We explain the nature of this rationale and its implications for proper policy design - particularly whether its intrusion into the criminal justice system can withstand critical scrutiny. Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status and instead capable of promoting voluntary care-giving.

While this last article addresses a lot of issues tangential to this blog, it proposes changes in incest, adultery, and bigamy law. You might remember Markel had some unusual ideas about a sex licensing scheme recently.  I haven't had a chance to read the whole article yet, but I'm definitely interested because it addresses an area of sex crime law that is rarely theorized these days.

Horrible Incest and Rape Case in Austria

The media has been focusing a lot on this truly horrific incest and rape case:

Authorities in Austria are trying to piece together the details of how a 73-year-old man managed to keep his daughter imprisoned in a windowless cellar for 24 years while he repeatedly raped her and fathered her seven children.

Police said the 42-year-old woman, identified only as Elisabeth F, told them her father, Josef, had lured her into the basement of the block where the family lived in Amstetten, north-west Austria, on August 24 1984, and allegedly drugged and handcuffed her before locking her up in the dungeon. A police spokesman said she was "psychologically extremely disturbed", but her version of events was "completely believable".

The father was in custody last night.

She said she had been abused by him from the age of 11. "In her own words, she was continuously abused by her father," the spokesman said. She said she had borne seven children by her father, including twins, one of whom died in 1996 after just three days. The father removed the body from the cellar and burnt it.

It's always amazing in this cases that the perpetrators are able to keep their crimes secret for so long.

Around the Web

A Minnesota man charged with sexually abusing and assaulting a teenage girl was sentenced to 16 years in prison.  A new complaint charged him with lying under oath while testifying at an earlier trial. A year earlier, a jury deliberated for 13 hours before a judge declared a hung jury.

A Louisiana high school teacher resigned after parents discovered he was a convicted sex offender. Law enforcement officials said they plan to pursue charges against the teacher for failing to register as a sex offender when he moved to Louisiana.

A man in Florida is facing 87 sexual offense charges in North Carolina, including "30 counts of statutory rape, 17 counts of incest with a child, 36 counts of indecent liberties, two counts of first-degree rape of a child and two counts of first-degree sex offense of a child."

In a split decision, a three-judge panel upheld a 65 year prison sentence for a Maryland man convicted last year of raping a 3-year-old girl in his apartment. The lone dissenting judge noted that the man's sentence was three times higher than state sentencing guidelines.

More on Ohio Incest Case

I had a bit to say about the case yesterday. Volokh Conspiracy and Sentencing Law & Policy have emphasized different aspects of the case in their coverage.  Professor Berman focused on the sentence (probably not a surprise):

The case has understandibly garnered attention because of the conviction itself raises an interesting due process liberty issue.  But, after reading the case, I could not help but wonder about whether the not-minor sentence imposed might ground a different kind of legal challenge.  Defendant Lowe, after pleading no contest, received a sentence of "120 days of incarceration and three years of community control [and was also classified] as a sexually oriented offender."  Though perhaps there were some unstated aggravating facts, this seems to me to be pretty harsh sentence for consensual sexual relations between two willing adults.

Professor Adler is curious to see how this plays out in terms of Lawrence v. Texas:

Key to the majority's ruling was its conclusion that Lawrence failed to announce a fundamental right or apply heightened scrutiny, making it easier to sustain other state laws governing consensual sexual activity. This interpretation makes Lawrence a less significant decision as it limits the "threat" Lawrence poses to other state efforts to regulate morality and makes Lawrence a much less effective weapon against the criminalization of victimless crimes.

Interesting Ruling on Incest

Incest prohibitions are usually rationalized on a couple grounds: biological and consent.  The biological argument is that siblings or other relatives shouldn't be allowed to procreate because of the risks related to a small gene pool in terms of birth defects and other health problems for the offspring.  The consent argument stems from cases where one of the persons is a minor (usually in a crime with a parent or uncle molesting a child).  The latter case is also covered under normal child molestation statutes.  It seems that an Ohio Supreme Court opinion adopts a less common rationale:

Ohio families suffer when a stepfather has sex with his adult stepdaughter, even if she gives consent, the state Supreme Court ruled yesterday.

In a 6-1 decision, justices said the state’s antiincest law applies even when there is no blood relationship and both parties are consenting adults.

But the case could be headed to the U.S. Supreme Court based on a ruling four years ago that overturned a Texas ban on gay sex between consenting adults.

The Ohio court rejected arguments from Paul D. Lowe, a 44-year-old former Stark County deputy sheriff, that Ohio’s anti-incest law was intended to apply only in cases involving children.

Lowe was convicted in 2004 of sexual battery for having consensual sex with his then-22-year-old stepdaughter. He was sentenced to 120 days in jail, three years of community control, 250 hours of community service and was designated a sexual offender.

Lowe appealed, saying the state has no right to bar sexual relationships between consenting adults who are not related.

While the case is high on the "ick" factor, it is interesting that the court chose to adopt a damage to the family unit rationale for upholding the law in this case.  Then again, the standard of deferring to the legislature makes it pretty hard for the court to reverse in this case.  You can read the whole opinion here.

HT: How Appealing