Columbia political science professor and HuffPo blogger, David Epstein, has been charged with incest. Information remains scant, though it’s been suggested that he’s engaged in a three year sexual relationship with his over-18 daughter.
Before you start gagging, Eugene Volokh raised an interesting, albeit gross, discussion about the problems with basing law primarily on the argument that it makes most people want to toss their cookies. Accounting for the hard problems with incest, such as gene pool, offspring, control and coercion, what of, say, adult sibling choices where reproduction isn’t involved? What about this makes it criminal?
Eugene’s point is that our disgust toward this conduct, which obviously can’t be denied or ignored, reflects our disgust toward other sexual taboos, such as interracial sex and marriage.
Professor Stephen Bainbridge stepped into the ring.
The arrest of Columbia professor David Epstein on charges of incest with an adult family member prompted my UCLAW friend and colleague Eugene Volokh to offer some typically erudite (but somehow abstract) thoughts on criminalizing such things. This in turn raised the question of whether law can ban something just because it is immoral, a point Eugene addressed here. Doug Mataconis then chimed in to argue that “the fact that there’s what might be called an ‘ick factor’ is not, by itself, sufficient justification to make the act illegal.”
I have no problem with basing laws on the yuck factor, as I’ve explained before. Leon Kass aptly called it “the wisdom of repugnance”; i.e., “emotional expression of deep wisdom, beyond reason’s power to fully articulate it.”
While the “wisdom of repugnance” raises an interesting response, Bainbridge then blows his wad by relying on Lawprof Ann Althouse’s gut.
Yuck. Double yuck. I want it banned and the harm principle can be damned. Do I have a reasoned analysis of how to fit the yuck factor into a coherent political theory? No. And I don’t care. Some things are just too yucky for a civilized society to tolerate.
It’s not that I don’t agree with the yuck, but that I’m disinclined to base crime-worthy conduct on the number of “yucks” issued by either Bainbridge or Althouse. Do triple yuck crimes carry the death penalty? Don’t answer that.
Kass’ “wisdom of repugnance,” however, offers a more rational explanation for criminalizing incest, giving permission to be disgusted by things despite the inability to articulate a rational explanation. If society maintains a sense of disgust that is so broadly accepted, even if incapable of clear, logical articulation, shouldn’t that be sufficient?
Eugene responds to the Kass argument:
In fact, Kass’s New Republic article itself notes, “Revulsion is not an argument; and some of yesterday’s repugnances are today calmly accepted — though, one must add, not always for the better.” Kass of course goes on to argue that, “In crucial cases, however, repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it.” But if we recognize (as I think we must) that some of yesterday’s repugnances are rightly accepted today, and that even today’s repugnances might be rightly overcome (which is Kass’s view with regard to nonmarket organ transplants), we can no longer simply rely on our repugnance. We have to reason about exactly why something might be harmful, and whether its harms are exceeded by its benefits (or by the harms of trying to criminalize it, which include both deprivations of liberty and expenditures of taxpayer money).
His ultimate point, whether the default position in cases where we all agree about the yuck factor but can’t put our finger on the harm, raises the critical issue: Is the default position to criminalize things we all find yucky, at least for the moment, or should the default position be to suffer the yuck factor and not criminalize conduct unless we can articulate a particular harm to be stopped?
Weird how something that we would all rather not think about at all be turned on its head to match a sacred cow of criminal law, that conduct which causes no cognizable harm not be criminalized because of an excess of emotion and a dearth of reason.
This situation more typically arises today when a tragedy strikes a child and legislators rush to enact laws to criminalize conduct already criminal or that wouldn’t impact the conduct under any circumstances. We have little problem ridiculing such laws, and the cynical politics behind them. Yet, an age old taboo like incest, carrying the weight of our collective repugnance, defies our ability to use only our rational brain. The yuck factor is still there, no matter how hard we try to ignore it.
About the closest reasonable analogy can be found in homosexuality, which some still find too yucky to tolerate. Many, hopefully most, heterosexuals have gotten past the yuck factor and accepted it. Even though who haven’t have embraced it to the extent that it is no longer criminal and requires imprisonment. For the benefit of you young-ins, yes, years ago people did find homosexual conduct to be that yucky, and it was a broadly held view in society sufficient to invoke the wisdom of repugnance. And now it’s not.
By no means does this suggest that I find incest, in any variation, acceptable or less than utterly repugnant. Sorry, but I’m not the broad-minded a person. But if we’re busy thinking, then we can’t help but do it right, and Eugene has given us cause to do some of the very hard work that make our heads hurt. And it’s not very good for our stomachs, either.
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The longtime family friend who handles wills and such for my family, uses the oysters analogy. He, for reasons that he neither cares to nor does explain, is utterly squicked out by the thought and even more so by the sight of somebody eating raw oysters.
But, having a minimal sense of principle (he actually has more than a minimal sense; that’s not required for this application) would very strongly oppose criminalization of oyster-eating.
Similarly, when we are talking about sexual behavior between two consenting adults, it seems to me that while punishing the offenders for the the yuckiness of it, while a perfectly fine (well, at least okay) thing to do when it comes to appropriate social sanctions, is not merely a step down a slippery slope to Very Bad Stuff, but a huge leap down that slope, when it comes to criminalization.
I’m reminded, of course, of Lazarus Long, who, upon going back in time to his early childhood, find himself in a very hot sexual relationship with his mother, a woman now many, many centuries younger than himself.
What’s the harm? I don’t see it.
Orthogonally: I know Michele Bachmann slightly –we shared a stage on a couple of occasions; I like her, personally — and I followed her career in the Minnesota House and Senate very closely. (A close friend, Bruce Bethke, long ago cast the tie-breaking vote to get her her first nomination. Interesting guy, Bruce; he’s also the fellow who invented the term cyberpunk, even though he is very much not a cyberpunk.)
Being of a somewhat conservative bent, I’ve found most of her votes on most bills I’ve followed to be pretty good.
But –and well she’s changed since she’s gone to Washington — she always did seem to have a hard on (so to speak) for teh gays.
I used to think that she would get up in the morning, and even before the first cup of coffee begin to worry about the distant possibility that, someday, Alan and Bob down the street would not only be able to share a bed, a home, and a life, but might, someday, somehow, be able to hang a marriage license on their wall, after which the world as we know it would surely end.
I’d really, really like her to show her work, without any copying from her neighbor.
I’m sure I’m like the vast majority of fathers with adult daughters — I have one, of whom I am more than terribly fond — the idea of turning a father-daughter relationship into a romantic one not only has no appeal, and hits the YUCK button very hard.
To make a long rant no longer: so what? Nobody’s talking about making it mandatory, after all. Just about not throwing people who chose to do it in jail.
The problem with the oyster analogy is that it’s a personal yuck as opposed to a societal yuck. We all have a few of those, and recognize that while criminalizing brussel sprouts will make the world a better place, it’s still excessive.
The only reaction I can offer, doing the devil’s advocate thing, is that if incest between consenting adults is legalized, is it not a step down another slippery slope, the one where those with deviant sexual desires justify acting upon their impulses take comfort as it’s just a tiny little step further? What of the emotionally crippled, intellectually challenged or financially dependent child who, suddenly at 18, is coerced into a sexual relationship with Dad? What of the 17 year old, who is almost 18 and “why should we draw arbitrary age distinctions”? What of the 17 year old siblings, neither having coercive power over the other?
I’m sure my aged mind can’t even begin to come up with all the variations on a theme, but there are lots of slippery slopes out there. Avoiding one doesn’t mean we don’t step onto another.
Well, of course, he said, responding to the devil’s advocate, it’s a slippery slope, but it’s one with good markers and handrails: in this case, being consent (and the related issue of coercion) and adult status.
Sure, it’s somewhat arbitrary, as you point out, to not criminalize this stuff if Betty is 18.01 years old rather than 17.999. But it’s also pretty arbitrary to criminalize it entirely, based on a count of raised hands to the Nancy Grace style question, “Doesn’t this make you MAD?”
Analagously . . . a FOAF once told my friend that she’d been raped. Very bad, obviously. Upon further inquiry, what she said had happened is that she’d gone to the guy’s place for coffee, and after she made it clear that all she was into was the coffee, he explained that, well, if that’s the way she was going to be, she could get to her home on her own.
No question: this makes him a scumbag. On the other hand, his place was in Minneapolis — not ninety miles away from anywhere — and the weather was reasonable. She could have — she had the money — called for and taken a cab, without fearing anything more than some inconvenience. I think it’s real, real easy to distinguish (in principle; I recognize that if had gone to court the differing stories might have made it not easy) from the guy who gets the victim out in the middle of the woods on a cold winter night and says the same thing, as well as the guy who simply starts hitting until he gets “consent.”
As you already know, consent is a slippery slope in itself. Frankly, I often wonder how it is that we live in a place with so many slopes. It would seem to be a topographical impossibility.
We rejected the “wisdom of revulsion” principle WRT homosexuality; in fairness, that ought to kill it for anything else, at least anything else similarly situated. Polygamy and incest are the first things that come to mind on that score.
The incest laws, like the others, are derived from traditional Christian church law, which forbade marriage “within the third degree of kinship”, which I think rules out first cousin or closer.
I find it as yucky as the next guy, but based on all that I don’t see any reason why adult incest relationships should be criminal, or polygamous ones either, for that matter.
Inconsistency is a terrible thing in the criminal law.
The problem isn’t the nonspecific how much “over-18” the daughter is but rather when this began. If she’s just over 18, there is an assumption the “grooming” toward this began prior to her 18th birthday.
And consider the nature of daddy’s love during those 18 years of grooming when all he wants to do is get his darling into bed. Not that daddy might be one sick mother for even considering such a thing about his own daughter. Oops, there I go imposing my own yuck factor again.
I can see that “grooming” as a societal harm to be avoided (and thus more than a mere “Yuck”), but, at the same time, I don’t think criminal laws make the slightest difference in such a situation. If someone is sufficiently mentally ill to desire and to engage in sexual relations with their own progeny, then, well, I doubt they’re rational enough to have any of their conduct really changed by criminalizing behavior among apparently consenting adults. This case is an example of that; it mattered not one bit that the conduct was criminal, they did it anyway.
Incest is gross. However, one’s personal revulsion towards incest based upon a subjective belief that incest is a ‘universal taboo’, is false.
Apparently, in Portugal, incest is not a crime: see, “Committee Experts Praise Portugal’s Efforts to Promote Equality of Women”. [Edit. Note: Link allowed just because I like Nino better than I like other people.] Committee on Elimination of Discrimination against Women. Jan 2002 .
Also, New Jersey does not apply any penalties when both parties are 18 years of age or older: N.J. STAT. ANN. § 2C:14-2 (West 2005).
Natural law is an ineffective tool to criminalize unnatural behavior.
I’m unaware of any criminal law that has proven completely effective as a deterrent. The problem with gaging deterrent effect is that we never quite know who would have done something had it been legal but didn’t because it wasn’t.
New Jersey? You’re kidding, right? Have you ever been to New Jersey?
No, I just watch Jersey Shore on occasion. I’ve also seen Deliverance a few times.
Perhaps the reason why there is no “rational” argument against it because of how current the thoughts on it are.
If millenia of evolution have taught us that it is degenerating to society and those societies learned that the hard way (pardon the expression), then modern thought would just the fact that incest is bad for granted.
It is as innate to people as natural language; their language developing before the their grammar.
Try to get a linguistics professor to provide a rational reason why some plural words must end in “es” and some only “s”.
The same holds true for thoughts on deviant behavior.
Ah, the evolutionary perspective on incest. Do I take it you have more than a passing familiarity with deviant behavior?
Not that I’ll admit to. 🙂
Meh, the Chattahoochee gets a bad rap from that movie. It’s really not that bad. I’ve only run into rednecks camping on the side of the river with shotguns once! And they were very friendly in a non-rape sort of fashion.
It seems odd that the state would want to interfere with any relationship between consenting adults. Is this not a type of legal voyerism? The strongest argument for interference would be the same that applies to sexual harassment, but generally, one party must complain–show that position has been used coercively.