Consent and the Last Taboo

Earlier this week, an Ivy League political science professor was arrested and charged with one count of incest for having a reportedly consensual sexual relationship with his twenty-four year old daughter.

Normally, I’d find such a story too sordid and tabloid-esque to be worth commenting on. But there was one aspect that I found to be so shocking that I thought it was worthy of discussion: the father was charged with a crime.

Perhaps I’m jaded but I has assumed that in American that no sexual activity—no matter how despicable—could be considered a crime if it were consensual and didn’t involve permanent injury or the exchange of money.

What is the standard that the legal system uses to justify criminalizing this form of consensual sexual activity? One way is to question whether adult incest can ever be truly consensual. As law professor J. Dean Carro told Salon.com :

“Regardless of the age of the child, there’s still a theory that a parent is always a parent, a child is always a child and, as a result, there truly can’t be a consensual sexual act.” That explains why the daughter isn’t charged in this case. “The idea is the perpetrator is the parent and the victim is the child. We don’t normally prosecute a person falling within the protected class, and you remain a member of the protected class even above age of consent.”

Although I’m sympathetic to that argument, it doesn’t appear to make much legal sense. It stretches the bounds of the word to claim that an adult woman with functioning mental faculties does not have the ability to consent—or refrain from consenting—to have sex with another adult. Wouldn’t it be a violation of her rights to prevent her from engaging in this behavior? After all, the courts have enshrined “consensual” as an almost unimpeachable standard for why there should be no compelling state interest in regulating sexual activity.

Don’t get me wrong, I certainly think the state does have a compelling interest in regulating incest. However, I also think that the standard should apply more broadly, as it did before Lawrence v. Texas .

But how do more libertarian-minded Americans rationalize the state criminalizing this form of sexual activity between consenting adults? Will they be consistent with their “live and let live” philosophy and claim that the father should not have been arrested? Or will it give them reason to reconsider the way that we’ve turned “consensual” into a term to justify legalizing even the most repugnant and socially destructive behavior?