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Defining Incest

NCJ Number
Northwestern University Law Review Volume: 92 Issue: 4 Dated: Summer 1998 Pages: 1501-1640
Leigh B. Bienen
Date Published
140 pages
This article examines the statutory formulations and interpretations of incest in American jurisdictions against the backdrop of the author's experiences as an advocate and reporter on rape reform legislation in the late 1970s and later as a public defender who represented sex offenders sentenced to treatment at the Adult Diagnostic and Treatment Center in Avenell, New Jersey.
The introduction notes that from the earliest colonial times until the present, incest has been codified as an offense in every U.S. jurisdiction. All States forbid marriage between certain specified relatives, and the majority of States still define a crime called incest. In 1793, incest was a crime grounded in principles of morality, property, and the laws governing inheritance. By the end of this century, the crime had been transformed into a crime against the person. The author examines what these statutory changes indicate about how society perceives this sexual behavior and the harm that deserves criminal punishment in the past and present. One section looks back to the 1970s to examine the political climate surrounding rape reform legislation. Attention is given to the New Jersey rape reform legislation adopted in 1978. This is followed by a section that discusses the special status of diagnosed sex offenders before and after the enactment of New Jersey's reform statute. The next section presents a more general discussion of traditional definitions of incest in State criminal codes, followed by a section that reviews some patterns and fragmentary history of incest as a subcategory of statutory rape. The article concludes with a discussion of the redefinition of incest under rape reform statutes, with attention to the changing characterization of the offense. Appended profiles of each State's laws pertinent to incest include definitions of incest, the history of each law, the prohibited conduct, and penalties. 256 footnotes


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