No – incest is not legal in California.
Every state prohibits incest in some form.
One reason for this is the high chance of birth defects in children whose parents are related.
How closely related must family members be for their relationship to qualify as incest? States differ on what relationships count as incest.
In this respect, California’s incest laws are more lenient when compared to some other states.
However, those whose relationship qualifies as incest under the California incest laws may face a felony sex offense charge.
A felony sex offense is a serious charge that should not be taken lightly. If you face an incest charge, you need professional representation.
If you face a violation of California incest laws, a conviction could change the rest of your life. You may face jail time and could be required to register as a sex offender. It is crucial that you contact an experienced sex crimes defense attorney to discuss the charges against you and potential defenses.
Who Can Be Guilty of Incest Under California Incest Laws?
Incest laws in California apply to closely related family members.
In California, the incest laws are contained in California Penal Code section 285. The specific language of the statute provides that, “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.”
However, this is hardly a clear definition of what constitutes incest. Essentially, there are four elements that a prosecutor must prove to get an incest conviction in California.
In other words, the prosecution must prove the following beyond a reasonable doubt before a jury could convict you of incest.
- You had sexual intercourse with another person;
- When you were at least 14 years old;
- The sex was with another person who was at least 14 years old; and
- The person you had sex with is related to you.
In California, incest can occur between:
- Parents and children,
- Grandparents and grandchildren,
- Great-grandparents and great-grandchildren,
- Half-siblings, and
- Uncles/aunts and nephews/nieces.
California incest laws prohibit these family members from:
- Engaging in sexual relationships or
- Getting married.
Unlike other states, in California incest does not apply to cousins, adopted siblings, or stepparents and stepchildren.
These family members may engage in sexual relations and get married under California incest law.
It is important to note that consent is not relevant to an incest charge. That is, a person can be charged with incest even if both people consented to the sexual act or the marriage.
What Are the Penalties for a California Incest Crime?
Incest is a felony in California.
An incest conviction can carry the following penalties:
- A prison sentence of 16 months, two years, or three years;
- A fine of up to $10,000; and
- Mandatory registration as a sex offender.
The length of a person’s prison sentence depends on several factors. These factors include:
- Prior criminal history,
- The degree of the family relation;
- Presence of mitigating factors.
Probation is a potential result with an incest conviction. Additionally, because incest is a sex offense in California, California incest laws require people convicted of incest to register as a sex offender. California law requires registration for life. However, in 2021 this will change to 20 years.
Because the penalties for an incest conviction can be severe, talk with a seasoned criminal defense attorney as soon as possible.
Sex Offenses Related to California Incest Laws
As described above, incest involves sexual intercourse between two related people who are both over the age of fourteen.
However, just because the prosecution cannot establish the elements of incest does not mean that you will not face criminal charges of a different type. In fact, incest crimes are actually less serious than other related sex offenses.
Penal Code section 261.5 prohibits statutory rape, which involves consensual sex between two people when one of them is under the age of eighteen.
For example, assume you and your sixteen-year-old step-sister (who is not related by blood) engaged in a sexual relationship.
In this case, you could not be found guilty of incest regardless of your age because your step-sister is not related to you by blood. However, because she was under eighteen, if you are over eighteen you could face statutory rape charges.
Punishments for a statutory rape conviction range in seriousness, depending on your age and the age difference between you and the other person. However, the most serious statutory rape charges carry a term of incarceration of up to four years.
Notably, the other person’s consent is not a defense to a statutory rape charge.
Bigamy is outlined in Penal Code section 281 and prohibits two related people from getting married. There is no element of sexual intercourse required for this charge to apply.
In other words, the prosecution only needs to prove that you and a related party, regardless of their age, got married. Bigamy charges are relatively rare in California, and carry similar penalties to an incest conviction.
Under Penal Code section 283, bigamy is punishable by a fine of up to $10,000 and a jail sentence of up to one year.
Lewd Acts on a Minor
California’s incest laws only apply to sexual intercourse. However, if you were to engage in other sexual activity with a minor under the age of sixteen, you could face charges of lewd acts on a minor.
Penal Code section 288 explains this offense as “any person who willfully and lewdly commits any lewd or lascivious act, upon or with the body, or any part or member thereof, of a child who is under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.”
The punishment for this offense carries a term of incarceration of up to eight years. However, if the prosecution proves that you used force to commit the offense, or occupied the role of a “caretaker,” the maximum punishment can reach up to ten years in jail.
California incest laws are relatively narrow in scope, meaning that incest prosecutions are also relatively rare. However, the sex offenses related to incest are frequently charged and are often much more serious than an incest conviction.
What Are the Defenses to California Incest Laws?
Several defenses might be available to those charged with incest under the California incest laws.
One possible defense against an incest charge is that the accusations are false. If you did not engage in incest, you could assert that you are innocent as a defense.
Lack of Knowledge
If you did not know of the family relation to your sexual partner or spouse, you might assert a lack of knowledge as a defense against an incest charge.
However, California courts are unclear about whether this is a valid defense.
If you are under 18 years of age and your sexual partner or spouse is an adult, you may not be guilty of incest. However, the adult partner could still be charged with incest.
Contact a knowledgeable sex-crime defense attorney to discuss the defenses available in your case.
Are You Facing a Violation of California Incest Laws?
If you face incest charges, or potentially more serious sex charges, it is imperative that you consult an experienced lawyer as soon as possible.
A conviction for a California sex crime can carry lifetime consequences, including jail time and many years of registration as a sex offender. A lawyer can help to protect your rights from the early stages of your case.
There are many defenses to incest charges and related sex crimes, and an attorney can help you identify which defenses may apply best in your specific situation.
At the Law Offices of Kerry L. Armstrong, APLC, our seasoned sex-crime defense attorneys are available to discuss your case. Contact us online or by calling 619-900-6902 to schedule a free case consultation.