David Epstein, a 46-year old political science professor at Columbia University, has been charged with third-degree incest for allegedly having consensual sexual relations with his 24-year-old daughter. Under New York State law, a person is guilty of that crime when he or she has sex "with a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece." If the allegations are true, that would apply to Epstein—and also to his daughter. Why wasn't she charged for the crime as well?
Because she's seen as the victim. Prosecutors could have made a case against the daughter, but when it comes to incest, the authorities tend to focus on one party. In this situation, "consent" is irrelevant, since it's the act itself that constitutes the crime; and blame tends to fall on whichever half of the incestuous couple has more control. A law professor told Salon today that children are generally assumed to be part of a "protected class" even when they're above the age of consent. So the older party tends to be considered the guilty one, although in some cases—a man caring for his bedridden and elderly mother, for example—the ages of perceived control could be reversed.
In some cases, both parties are held accountable. Earlier this year, a 48-year-old man from Palm Coast, Fla., named Alton Everett Smith pleaded guilty to incest after impregnating his 27-year-old daughter. She, too, was charged with incest (after giving birth to her own half-brother) and is now serving five years of probation. * That's despite the fact that the father was clearly in control of the relationship: He was pimping her out for sex on Craigslist. According to court records, the daughter has a tattoo reading "Daddy's Girl" on her behind.
What happens in cases in which the power dynamic is less clear—as between similarly aged siblings? As a general rule, an older sibling will be in greater legal jeopardy than a younger one, and a brother gets more blame than a sister. In 2003, a football player named Tony Washington was convicted of engaging in sexual intercourse with his biological sister. At the time of the act, she was 15 and he was 16. While Washington pleaded guilty (and is now a registered sex offender) his sister was never charged.
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Explainer thanks Lynn Sacco of the University of Tennessee Knoxville and
Dan Markel of Florida State University.