Sexual relations between family members who are not spouses, formally known as incest, is illegal across the U.S. because of the harm that it can cause to family relationships. States also recognize that children from incestuous relationships tend to struggle with genetic defects, which is another reason for prohibiting incest. Laws may prohibit sexual relations not only between blood relatives but also between certain people who are not blood relatives, such as adopted parents and children, stepparents and stepchildren, and foster parents and foster children. Close cousins are covered, but distant cousins may not be, unless they live in the same household like siblings. Meanwhile, some states outlaw marriages between close relatives, even if they do not involve sexual relations.
Incest often can be charged as a violation of a different law, such as child abuse, child molestation, rape, or statutory rape. A prosecutor can choose which type of charge to bring. Also, if a relationship does not technically qualify as incest under the definition in that state, the prosecutor may be able to charge the defendant with a different sex crime instead.
A prosecutor can bring an incest charge against someone who knowingly engaged in sexual relations with the type of person covered by the incest law. If they tried to engage in sexual relations, but no intercourse actually happened, a prosecutor might bring an attempted incest charge. A defendant cannot defeat a charge on the basis that the other person consented. If the other person did not consent, the defendant might face a rape charge as well, which could lead to much more serious penalties. If the other person was below the age of consent, the defendant might face a statutory rape charge in addition to the incest charge.
If the people in the encounter were close in age, the prosecution typically can bring charges against each of them. If one person is much older than the other, such as a parent and a child, only the older person may face charges. They may be viewed as a perpetrator and the younger person as a victim. If both people were under the age of majority, the prosecution might bring the case in juvenile court.
There are few defenses in these cases, other than challenging whether the incident happened. One procedural defense that may arise is the statute of limitations. Sometimes a long time passes between the incident and its discovery. Like most crimes, incest is subject to a statute of limitations, which requires the prosecution to bring charges within a certain period after the crime occurred. A defendant may get the case dismissed if they can successfully show that the statute of limitations has expired.
Incest is often charged as a felony, as are crimes like rape and statutory rape that are related to it. This means that a defendant who is convicted may face years in prison. If it is charged as a misdemeanor, the defendant may spend several months in jail. Also, the judge may order the people involved in the incident to be separated. A child of a parent convicted of incest may be taken away and placed in foster care. If a conviction of a sex crime accompanies the incest conviction, the defendant may need to register as a sex offender.
