One topic we discuss in my Law of Love class is incest. We talk about the normative rules -- should (certain types of) incest be constitutionally protected -- as well as predictive ones. Sexual mores and constitutional protections for intimate human relations have undeniably evolved during the past half-century, and will almost certainly continue to do so. When, if ever, will we reach a point at which the judiciary will declare certain forms of consensual incest permissible?
There are -- as one might expect -- various views on this subject. Some believe that incest laws are categorically good, and will (for that reason) persist. Others believe that at least some incest laws -- generally, those involving consensual adult relationships -- are overbroad, and will eventually be held to infringe upon fundamental liberties. Still others believe that incest laws are normatively overbroad but will nonetheless continue to be upheld, and a few believe that current incest laws are good but may eventually be struck down regardless.
Regardless of one's position on the predictive issue, I'm fairly confident that the existing incest rules will not be successfully challenged in a case like this one.
Daniel McEvoy may facially have a tolerable claim. He's 38 years old. His sister is 36. They had not seen each other in many years. They were exceedingly close, and his sister called him her "best friend." You could see someone potentially making a nonfrivolous claim that this brother and sister couple should be able to be sexually intimate, or even marry, in the same way that people (currently)have a right to be intimate and/or marry a person of a different race. That claim might be especially strong if the couple did not intend to have, or were incapable of having, children. Which is why Dan McEvoy raises his constitutional challenge here, asserting that his conviction for incest violates his constitutional rights.
I'm nonetheless not surprised in the slightest that the Court of Appeal unanimously rejects this claim. For one thing, neither precedent nor prevailing mores are likely to make recognition of this supposed constitutional right arise anytime soon. For another, if and when they do sufficiently change, I have a strong feeling that the initial articulation of a "right to incest" won't be made in a case like this one. One in which (1) the sister testified, quite forcefully (and seemingly credibly), that the incest was not consensual, and (2) in which the brother had previously raped a woman at knifepoint at her home.
Doctrinally, those facts may not ostensibly matter, since consent's irrelevant to the incest conviction here and the prior offense technically doesn't relate to the present charge.
But that they don't legally matter doesn't mean they don't matter. They do. There was a snowball's chance in hell that the Court of Appeal would agree with McEvoy's legal contention that incest is a constitutional right. And even that went away when the Court of Appeal was told that the incest was not consensual and that the defendant previously raped someone at knifepoint.
