Incest: A case study in legal hypocrisy

Game of Thrones characters Cersei and Jaime Lannister are in an incestuous relationship.


Katie Moody | 13 November 2018


The illegality of incest reflects a wide popular aversion. However, there is little reason not to legalise it.

I would like to begin this article by assuring readers that my motive for writing it is not due to an urge to have sex with any of my immediate family. I am also not an active advocate of incest. What interests me about this topic is that incest is one of the last big sexual taboos. I argue that this is not due to practical or pragmatic concerns but instead to the ossified morals seen to characterise much sexual regulation. It can be reduced, that is to say, to an “ick”. In many ways the illegality of incest in Britain (as anywhere) highlights a hypocrisy within our society on the issues of sexual freedom and disability. And so, with this introduction hopefully having saved some of my reputation, I will begin.


First it is key to explore the rationale for incest’s illegality. This can be broken down into a number of arguments: the high chance of babies born with genetic disorders, the risk of abuse within incestuous relationships and, of course, the “ick factor” (sex with one’s consanguine relations being widely considered disgusting).


Considering first the issue of genetic disorders, there would appear to be a glaring hypocrisy here: unrelated people who carry similar disorders are well within their rights to breed, and there is nothing to suggest that this practice is any safer. Genetic disorders as a result of inbreeding are not incest specific, they are the same disorders as can be found in a child whose parents are as distantly related as we can imagine. It is just that the likelihood of disorders occurring increases when the parents are closely related. Yet the same principle applies in the case of a female carrier of haemophilia, for example, running the risk of having a haemophilic child.


In fact, this is significantly more likely. A female who is a carrier of haemophilia has a 25% chance of having a son with haemophilia and a 25% chance of having a daughter who is a carrier. A parent with Marfan syndrome has a 50% chance of passing this on to their child, yet there is no law preventing these people from having children.


So, in saying that disorders borne of inbreeding must be prevented but those borne of people with genetic disorders must not, we make a judgement on what disabilities we accept as a society. This is to say, in effect, that the acceptability of a disorder is dependent on how we view the relationship of the parents. So, if the risk of genetic disorders is truly the concern here, then why isn’t sex between same-sex relatives legal? Or those who are proven to be infertile?


Regarding the risk of abuse and unhealthy relationships, there is indeed a genuine danger. Even if a child is of legal age when sexual contact begins, there is always the risk that grooming and emotional abuse took place before this. However, this could be the case in any relationship – particularly when one party is significantly younger than the other. Yet a relationship where a large age gap exists is not illegal, so why is incest? The risk of abuse exists, and should be prevented through education, support systems and mechanisms to report and stop it. However, we cannot prevent it through policing something as intimate and personal as sex and love. If abuse and coercion do occur, then the abuse itself should be illegal, not simply the act.  A blanket ban should only exist in cases where a party can never be capable of consent. And in this discussion, we are referring only to consenting adults; therefore, we must give people the autonomy to choose. People of all ages and backgrounds can suffer from abusive relationships, but we must take these instances on a case by case basis.


Further, we cannot simply claim that an attraction to a close family member is a manifestation of a mental illness and therefore should be banned. Many fetishes can be argued to be the result of mental health issues. For example, instances of people who claim to form intimate and loving relationships with inanimate objects. Or to look at something more socially accepted, sadomasochism could be considered the same. To find pleasure in giving or receiving pain is alien to many and could be (although isn’t necessarily) indicative of underlying mental health issues.


And, of course, practices like sadomasochism could also be the result or manifestation of coercion and abuse.  However, these practises are legal because, done properly, they only involve consenting adults. There is no blanket ban and they are viewed on a case by case basis, and incest in this sense should not be seen as any different. Again, it is just considered more disgusting. Again, we see the hypocrisy.


There is also a worry about the effect on society if we legalise incestuous relationships. Some believe that if we do, there will be a rise in them. However, this leads on to another argument commonly levelled – that’s it’s just gross, that there must be something wrong with it because it is gross. Here again we have the “ick factor”. Some argue that it is an evolutionary way of preventing damage to the gene pool, others argue that such an innate disgust must suggest something inherently immoral.


This disgust can’t suggest something inherently immoral, for this is to accept an objective moral standard – something which is heavily debated and which we can’t reliably claim either way. After all, to find something disgusting doesn’t necessarily mean that it is wrong. For example, I find eating raw cake mix disgusting, but should I ever come to power I probably shouldn’t ban the practice. Or to use an example involving others, many find sexual practises that stray from the “norm” disgusting, however I would hope that we have moved past the point of branding them immoral.


That said, I do buy the argument that an evolved behavior to protect the gene pool is at the heart of these feelings of disgust. But if the disgust is evolutionary and innate, we are accepting that socialisation is not much of a factor. And if this is true, then the risk of the number of incestuous relationships dramatically increasing following a change in legislation (and with it a feeling of social acceptability) seems minimal.


Charles II, Habsburg King of Spain, was perhaps the most famous bearer of the so-called “Habsburg Jaw”, believed to be the product of heavy inbreeding.


There is even evidence to suggest that when incest is legal, the majority of people still shirk it; in France, for example, incest between two consenting adults is legal (and as far as I am aware, there is not a particular prevalence of six toed children there). This is further supported by the fact that the smell of someone with a different immune system from your own is an attractive attribute (family members have similar immune systems).


Historically, of course, inbreeding has been socially accepted and also relatively  common, but these cases tended to be for reasons which in a modern context are not relevant, such as maintaining a pure bloodline. (The infamous “Habsburg Jaw” was certainly a dear price to pay for that royal house’s much valued “purity”.) In the absence of such concerns, it would seem the effect of incest legalisation on society would be minimal. The only people who legalisation would really affect are those who wish to be in a relationship with a close family member; therefore, surely, we can’t legislate based entirely on most people finding something disgusting or innately wrong. That argument feels quite familiar.


The crux of the issue here is not that I strongly believe in the legality of incest. But I do believe that people should have the freedom to do as they wish so long as they are not harming others (at least in a social context). I also believe that a society should not be run on the belief that some things are intrinsically wrong. There should be reason and evidence for laws against any practice, not simply popular disdain. There seems to be little reason not to legalise incest.


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