Metropolitan News-Enterprise


Wednesday, November 28, 2007


Page 1


Court of Appeal Rules California Anti-Incest Statute Constitutional


By STEVEN M. ELLIS, Staff Writer


California’s ban on incest does not violate the due process clause of the Fourteenth Amendment, the Fourth District Court of Appeal ruled yesterday.

Holding that the U.S. Supreme Court’s 2003 decision to strike down a Texas anti-sodomy law in Lawrence v. Texas, 539 U.S. 558, did not create a fundamental right to consensual sexual activity between adults, and that the state has a legitimate interest in prohibiting incest, Div. Two rejected Gerry Glenn Scott’s contention that Penal Code Sec. 285 violated his constitutional rights and upheld his conviction for having sex with his 18 year old daughter.

Sec. 285 criminalizes any sexual relations between related persons who would be prevented from marrying one another under Family Code Sec. 2200, regardless of consent. 

Scott was charged under the statute after his daughter told family members about an encounter that occurred in December of 2004, just days after her eighteenth birthday.

Birthday Celebration

Scott’s daughter had accompanied him to his home after they had celebrated her birthday with other family members at her sister’s nearby residence. Raised by another relative, Scott’s daughter had seen her father only occasionally during childhood.

Scott’s girlfriend, who also resided at the home, was awake when the two arrived, but went to sleep on a couch in the living room. Scott and his daughter went into Scott’s bedroom to get some socks and, as she planned to spend the night, Scott’s daughter laid down on the bed fully clothed.

According to Scott’s daughter’s testimony, Scott then got into bed with her and removed her pants.  Although she testified she was scared and crying quietly at the time, she did not say anything, and Scott had intercourse with her for approximately two minutes.

After the encounter, Scott’s daughter attempted to leave, but found the residence’s front security door locked.  Scott opened the door, telling his daughter not to tell anyone about the encounter, and she walked back to her sister’s residence.

When she arrived, she was crying and visibly upset, and her sister called police.

At trial, Scott testified that he had fallen asleep in his bed and, after waking up sometime later, thought that he was in bed with his girlfriend.  He said that he engaged in intercourse for less than one minute, and that he stopped immediately when he realized his mistake.

A jury found Scott guilty, and he was sentenced to six years in prison.

On appeal, Scott cited the decision in Lawrence to argue that the statute unconstitutionally criminalized sexual intercourse between consenting adults.

Supreme Court Precedent

In Lawrence, the U.S. Supreme Court held that a Texas statute criminalizing sodomy between consenting members of the same sex violated due process rights under the Fourteenth Amendment.  The court concluded that the liberty interests of adults give them substantial protection in deciding how to conduct their private lives in matters pertaining to sex, and confirmed that law and tradition afforded constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education

Writing for the court, Justice Jeffrey King presumed, for the sake of Scott’s argument, that the conduct at issue was consensual. But he said that Lawrence dealt only with sodomy between consenting, same-sex adults, not consensual incest between related adult members of the opposite sex.

King also noted that the Lawrence decision had been limited so as not to involve persons who might be injured or coerced, or in situations where consent might not easily be refused.

“This aptly describes adult daughters,” he said, “who are typically in positions of vulnerability vis-à-vis their older, and thus more authoritative fathers, ‘in matters pertaining to sex.’”

Pointing out that the Lawrence court had not held that sodomy between consenting adults to be a fundamental right, King said the Supreme Court had arrived at its decision because the Texas statute did not further a legitimate state interest that justified intruding into individuals’ personal lives.

Applying this reasoning, he wrote that the state had a rational basis for criminalizing incest, specifically between consenting adults of the opposite sex who are related by blood, such as fathers and daughters.

“Like other states,” he said, “California has a legitimate interest in maintaining the integrity of the family unit, in protecting persons who may not be in a position to freely consent to sexual relationships with family members, and in guarding against inbreeding… Section 285 serves these purposes.”

King was joined in his opinion by Justices Art W. McKinster and Barton C. Gaut.

The case is People v. Scott, 2007 S.O.S. 6857.


Copyright 2007, Metropolitan News Company