California Penal Code 285 PC, the law that criminalizes incest, imposes severe penalties for marriage or sexual relations between close relatives. The penalty includes up to three years' imprisonment and a substantial fine of up to $10,000, underscoring the seriousness of the offense and the potential life-altering consequences for those involved. This stark reality emphasizes the need for strict adherence to the law.
The types of relatives who are prohibited from marrying or having sex with each other include parents and children, grandparents and grandchildren, brother and sister, half-siblings, uncles and aunts, etc.
It's crucial to understand that a lack of consent is not a factor in the crime of incest under PC 285. This key point, often misunderstood, means you can be guilty of incest even if both parties consented to the sexual relationship.
Understanding this law is not only important but also empowering, as it enables all individuals to stay informed and assert their legal rights.
One of the main reasons incest is a crime is that inbreeding between people who are too closely related genetically might result in birth defects. There are different parameters between states as to what constitutes an incestuous relationship based on morality, genetic similarity, etc.
What Does PC 285 Say?
California Penal Code 285 PC says, "Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who, being 14 years of age or older, commit fornication or adultery with each other, are punishable by imprisonment in the state prison."
Simply put, marriage or sexual relations between close relatives are a felony crime even when there is consent from both parties. A conviction could result in a requirement to register as a California "tier-two" sex offender, which means you will be listed on the sex offender registry and subject to more stringent monitoring and restrictions for at least 20 years.
Factors To Prove Incest
California defines the crime of incest as either marrying or having sexual intercourse with a close family member. To convict you, the district attorney must prove all the elements of the crime beyond a reasonable doubt, such as the following:
- You married or had sexual intercourse with somebody.
- You both were at least 14 years old at the time.
- You and the other person were related in an incestuous way, such as a brother and sister, etc.
Sexual intercourse refers to any penetration of the penis of one person with the vagina or genitalia of the other, no matter how slight. Ejaculation or an orgasm is not required. Under the incest laws, only sexual intercourse is considered a crime. Other forms of sexual activity, such as oral copulation, are not punishable under PC 285.
However, other criminal laws might apply depending on someone's age, such as Penal Code 261.5 PC statutory rape and Penal Code 288 PC lewd acts with a minor under 14.
Key Incest Takeaways
- Incest is only defined as occurring between relatives aged 14 or older.
- Incest is a crime even if both parties consent to the relationship.
- You can be charged with statutory rape if you have consensual sex with a relative who is under 14.
- Being married in an incestuous relationship is considered incest, even without any sexual activity.
- A marriage ceremony between incestuous relationships is treated the same as sexual intercourse.
- The reason for the incest law is due to genetic inbreeding, which causes a high rate of birth defects.
- Only sex acts of sexual intercourse that can result in pregnancy are considered incest.
Incestuous Relationships
California's incest law is primarily concerned with sexual relations between people who are closely related genetically. Thus, the law identifies sexual intercourse or marriage between any of the following relatives to be incestuous:
- Parent and child.
- Grandparent and grandchild.
- Brother and sister.
- Half-brother and half-sister.
- Uncle and niece.
- Aunt and nephew.
Some relationships are not considered incestuous, such as those between stepparents and stepchildren, stepbrothers and stepsisters, adopted siblings, first cousins, half-uncles and half-nieces, and half-aunts and half-nephews.
Incest Penalties
Incest in California is a felony that carries the following penalties if convicted.
- Sixteen months, two or three years in state prison.
- A fine of up to $10,000.
- Formal felony probation.
- Required registration as a tier-two offender on California's sex offender registry for at least 20 years.
California Senate Bill 384 created a three-tier registration system. You must register with the local police and renew your registration every year, within five working days of your birthday, and whenever you move to a new residence.
If you fail to register as required, you could be charged with a separate crime of failing to register as a sex offender (Penal Code 290 PC).
Related Incest Crimes
Several California laws are related to Penal Code 285, incest, providing a broader legal context. These laws include the following:
- Penal Code 281 and 283 PC bigamy. This law makes it a crime to marry one person while still being married to another, even when both parties consent. If convicted of a felony, you face up to three years in state prison.
- Penal Code 288.5 PC continuous sexual abuse of a child under 14. This law makes it a felony crime to live with or have constant access to a child over three months or longer and commit three or more acts of substantial sexual conduct or lewd acts.
- Penal Code 261.5 PC statutory rape. This law makes it a crime to have sexual intercourse with someone under 18, regardless of consent, such as incest. The penalties depend on the relative ages of the parties. A misdemeanor carries a maximum jail sentence of six months if the age difference is three years or less. A wobbler (misdemeanor or felony) with a maximum jail sentence of three years if the defendant is over three years older than the victim. A felony with a maximum jail sentence of four years if the defendant is older than 21 and the victim is under 16.
What are Incest Defenses?
Incest charges are serious, but our California criminal defense lawyers can use different strategies to obtain the best possible outcome, such as a lack of knowledge, you were a minor, and a false allegation.
Notably, a lack of consent is not an element of the crime for which one can be found guilty of violating this law. As noted above, even if both parties consented to the sexual relationship, they can still be found guilty.
Perhaps we can argue that you did not know you were related. In other words, perhaps you were engaged in an incestuous relationship without knowing you were related to the other person.
Perhaps we can argue that you were under 18 when the relationship began, and the other person was an adult. This means you should be less responsible than an adult.
The district attorney might be willing to drop the charges. Perhaps we can argue that you were falsely accused. Perhaps estranged spouses or family members are making false accusations of incest out of anger or jealousy.
Perhaps we can persuade the prosecutor that they have insufficient evidence to obtain a conviction. Contact us for more information. Eisner Gorin LLP is based in Los Angeles, CA.
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