a controversial opinion.

November 12, 2006

it seems that most of my good discussions these days take place with steph and ryan. unfortunately, neither of them blog (although ryan does have a show on cjsf), so their thoughts will have to be channelled through me.

a few months ago, at the start of term, steph had to start working on a paper regarding close relationships and public policy. she had some difficulty starting the paper.

we chatted about it over a dull afternoon. the night before, we had been joking about off-colour things, one of them being incest (brought on by an article by dan savage). mostly as a joke, but truthfully grasping for straws, i suggested that she write her paper on incest. we had a few laughs, but then, something came to us. what’s really so wrong with it? is incest a victimless crime?

first off, we started by agreeing that any sexual relations with a minor child, by any parent or other adult, is wrong and cannot be tolerated under any circumstance. but what about between a parent and an adult child? what about between siblings?
we found that incest between parent and child was different than incest between siblings, because, between siblings, the power structure is much more egalitarian.

there are some classic challenges to this point of view:

  • the possibility of birth defects is higher among relatives than among the population at large
  • there is the risk of sexual abuse
  • it will undermine the bonds of society

we determined that the risk of sexual abuse is a legitimate concern. however, any sexual (or non-sexual) relationship has a risk of sexual abuse. is there really a substantially higher risk of abuse between siblings? we couldn’t determine this, but we figured that the point was moot, since sexual abuse laws are already in place, regardless of blood relation.

the possibility of genetic defects in children resulting from incest is also a valid concern. however, this case against incest is not valid in the 21st century. birth control is dependable enough today that it is highly unlikely that any heterosexual couple, incestuous or not, truly needs to risk producing children if they genuinely do not wish to have any. we also looked at the case of abortion; in the unlikely event of pregnancy, why should the couple have to choose abortion? firstly, there are many heterosexual, non-incestuous couples that terminate pregnancies due to genetic defects; it therefore makes little sense to treat incestuous couples as different. additionally, since incest falls far outside the social norms, i sincerely doubt that a couple in a committed incestuous relationship would feel pressured to not have an abortion due to social expectations. in addition, using this arguement discriminates against gay brothers and sisters, since a gay incestuous relationship has no chance of producing offspring.

will it undermine the bonds of society? there are so few people who are genuinely attracted to their brother or sister (and even fewer who, by their good luck, have their feelings returned) that it is not likely to cause wide social upset. also, there are plenty of issues that have rocked social norms across the developed world in the past sixty years. social conservatives have said that the abolition of slavery, alcohol, gay marriage, interracial marriage, extending the vote to women, the existance of jews and communism all undermined the bonds of society. unquestionably, life has gone on; societies have not crumbled (nor do nazis ride dinosaurs once more).

we found that certain restrictions on incest should remain. because of the unequal power dynamic and the higher threat of coercion, incest between parent and adult child should remain banned. again, sex between parent (or anyone, for that matter) and minor child should also remain banned. sex between an adult sibling and a minor sibling, while not as severe as sex between a parent and child, still constitutes a large power differential and should therefore remain banned. we were reluctant to endorse legalizing sex between two minor children; due to the social and economic challenges to obtaining birth control by youth, the “genetic defect” argument still holds some weight. we decided that, in order to endorse the legalization of incest between minor siblings, we would require more evidence either that canadian youth have a fairly high degree of access to birth control or that the risk of genetic defects in babies born of incest is acceptably low.

we could not find that the social costs associated with incest are high enough to impose on the liberty of consenting adult siblings. just because someone’s behaviour might make other people squeamish is not a good reason to make said behaviour illegal. therefore, we cannot find that section 155 of the criminal code of canada is justified as it stands today.

steph and i acknowledge that this is a controversial topic. incest is taboo, so much so that virtually every culture in the world frowns on it. our point of view is not a popular one. indeed, with ryan’s exception, i have not been able to find one person who agrees with our point of view. the public outcry that would result from such a change to the law by parliament would make the debate over same-sex marriage look as easy as a debate over the popularity of either chocolate or vanilla ice cream.

thankfully, canada has a strong court system. i’m fairly confident, though not 100% certain, that, should the supreme court have a go at this issue, they would rule in favour of decriminalization, as it could very well be argued that section 155 of the criminal code is in violation of sections 7 and 8 of the canadian charter of rights and freedoms. granted, both of these sections are subject to the notwithstanding clause. in addition, this might be an issue that is so politically unpopular that a government might actually use the notwithstanding clause (even the ndp would likely be divided on this issue).

this is not an issue that can be decided over a cup of coffee. this will become a serious legal battle one day. in the meantime, it’s important to evaluate things critically and carefully.


ps. coincidentally, rotten.com has written a real, honest-to-god, decent article about incest. skip the rest of the website, but definitely take a quick peek at what they have to say.


4 Responses to “a controversial opinion.”

  1. Milan Says:

    The real problem has to do with the impossibility of real consent in a familial relationship. The emotional bonds, and bonds of loyalty, that already exist make it likely that someone could be pressured into something they would not normally consent to.

    Also, the same factors make them unlikely to report any abuse that occurs.

  2. mkushnir Says:

    that’s true, but as i said, what’s to stop the coercion or abuse of anyone else?

    strict sexual abuse laws are already in place. what we were trying to say was that, for those relationships that are genuinely based on attraction and affection, why should they be stopped?


  3. Jocelyn Says:

    judith butler’s latest book (or essay collection, “Undoing Gender”) has a chapter that overturns the idea of incest as taboo when you redefine kinship. i haven’t finished reading it yet but the idea of it is intruiging already.

  4. Jocelyn Says:

    PS – hi 🙂

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