Wednesday’s column on Rick Santorum, gay sex, and incest brought plenty of angry responses. Many readers wrote in to Slate’s “Fray,” faulting me for neglecting to distinguish between consensual and nonconsensual incest. They’re right: I should have. Some suggested that the former is so rare it isn’t worth talking about. I agree that it’s probably very rare—I haven’t found reliable data on it—but I disagree that the rarity of a practice should exempt its criminalization from discussion.
Others argued that Santorum deliberately used the term “incest” to conflate the consensual kind with the nonconsensual kind and to imply that gay consensual sex is no better than sexual abuse of children. Given the wandering nature of his interview, I doubt he was thinking that far ahead. Also, he used clearer language (“man on child”) when he clearly meant to refer to child abuse—implying that by “incest” he meant something else. But let’s be clear: Nonconsensual sex is always categorically worse than consensual sex, and the younger the participant, the less authentic her consent.
Some readers suggested that for the sake of clarity, the term “incest” should be reserved for sexual abuse. I see it the other way around. Morally and legally, we have plenty of terms for such abuse: child molestation, child sexual abuse, rape, sexual assault, etc. On the other hand, incest is the only term we have for sex between close relatives per se. And in fact, that’s the dictionary definition: “sexual activity between two people who are considered, for moral and genetic reasons, too closely related to have such a relationship.”
One reader, a gay rights activist, searched U.S. case law and told me he could find only one case in which a defendant had challenged an incest conviction on the grounds that it violated the right to privacy—and in that case, the appellant had lost. Fair enough. If the Supreme Court strikes down laws against gay sex, I doubt courts will be flooded the next day with petitions to recognize a constitutional right to incest. But the case to which the reader referred me, State v. Smith (6 S.W.3d 512), makes my point. In Smith, the Tennessee Court of Criminal Appeals ruled that the right to privacy covered neither incest nor gay sex. Indeed, the court quoted Bowers v. Hardwick. That doesn’t mean that a right to gay sex implies a right to incest. But it does mean that no court, including the court in Smith, seems to have explained how we can have one without the other.
One further detail of Smith is worth noting. According to the court’s statement of facts, the appellant, Ami Smith, “was involved in an incestuous relationship with her paternal uncle,” which “began while [she] was still a minor.” She “was eighteen years old when charged,” “entered a guilty plea to one count of incest and was sentenced to three years supervised probation,” for the violation of which she was subsequently sentenced to serve five years in jail. Laws against sexual abuse apply only to the perpetrator. Laws against incest apply in theory to both participants, and in this case they applied in fact. If you want to justify incest laws, don’t tell me why Ami Smith’s uncle belongs in jail. Tell me why she belongs there, too.
