Family LawIncestSubstantive Due ProcessConsensual Adult Sexual ConductPenal Code section 285incestdue processFourteenth Amendment
Facts
Defendant was convicted of incest arising from a sexual encounter with his adult sister. On appeal, for purposes of the constitutional argument, the court presumed the sexual conduct was consensual because consent is not a defense to incest and the jury made no finding that established nonconsent. Defendant argued that, under Lawrence v. Texas, California could not constitutionally criminalize consensual sexual relations between adult siblings. The siblings here were a 36-year-old woman and her slightly older brother.
Issue
Does California Penal Code section 285 violate the Due Process Clause of the Fourteenth Amendment by criminalizing consensual sexual activity between adult siblings? More broadly, does Lawrence v. Texas protect consensual adult incest from criminal prohibition?
Rule
Lawrence v. Texas did not recognize a fundamental right for adults to engage in all forms of consensual sexual conduct. A prohibition on incest between consenting adult relatives related by consanguinity is constitutional so long as it is justified by legitimate state interests, including protecting the integrity of the family unit, protecting persons who may not be in a position to freely consent within family relationships, and guarding against inbreeding.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
In Fresno, 41-year-old Nora Vega and her 43-year-old full brother, Eli Vega, begin a private sexual relationship. Eli is prosecuted under a statute that criminalizes sexual intercourse between adult close blood relatives, and he argues the Due Process Clause protects all consensual adult intimacy in the home.
How should a court most likely rule on Eli's substantive due process challenge?
Explanation. The majority held that Lawrence did not create a fundamental right to engage in all consensual adult sexual conduct. A prohibition on consensual incest between adult relatives related by consanguinity remains constitutional when supported by legitimate or sufficiently important state interests, including protecting the integrity of the family unit, protecting persons in family relationships whose consent may not be freely refused, and guarding against inbreeding. Those interests apply to adult siblings as well.