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This is a sensitive subject so let me be clear:

  • I am not looking for opinions on abortion (good or bad).

  • I am not looking for opinions on whether or not rape, health or incest are reasonable exceptions.

  • I am not interested in other exceptions.

  • I am not concerned with time frames (heartbeat, 1st-2nd-3rd trimester, etc.).

I am simply curious as to why incest is commonly included alongside rape and health of the mother/fetus as an exception to abortions being illegal. Rape I understand, crime pushed upon the woman, lack of consent. Health of mother/fetus I understand, saving mother's life and no sense delivering a dead baby.

Incest is defined as:

sexual relations between people classed as being too closely related to marry each other.

•the crime of having sexual intercourse with a parent, child, sibling, or grandchild.

Oxford Dictionaries

It seems to me that rape exclusions should already cover child sex, since a child is legally incapable of consenting whether or not any child(ren) involved is related to the partner (child here being defined as anyone under 18). As for adult-adult relations, why include an exception in this case? Is the primary concern birth defects? Ones that would not be covered under the health exception? Is this a carry over from particular legal case/situation? Is it related to the second part of the definition above in that incest is defined as a crime all on its own?

Politically/legally, incest is often include as an exception from an abortion ban in addition to rape and health. Why is this so?

  • According to wikipedia incest is a punishable crime in some of the states of the US. This goes from fines to life imprisonment (?!?!!). So, strictly speaking it could be argued that a crime is being committed. Moreover there is a really nice map in wikipedia regarding the legality (or illegality) or incest in the several countries of the world. In many of them incest is not at all illegal. – armatita May 16 at 15:59
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In this context, Incest is referring specifically to sexual assault by a family member, not to consensual relationships between related adults. You can see this definition used, for example, by RAINN, The Rape, Abuse & Incest National Network, a nonprofit anti-sexual assault organization.

While the definition of Incest technically does include fully consensual relationships between family members, the vast majority of cases involve sexual assault of a child by a family member – it is this kind of incest that these laws refer to. From RAINN's page on incest:

The majority of juvenile victims know the perpetrator, and approximately 34 percent of perpetrators in cases of child sexual abuse are family member.

It's not to prevent inbreeding or birth defects, but to specifically protect the victims of child sexual abuse.


So, why does Incest need to be a separate exception?

First of all, it's based on an assumption that sex between family members generally cannot be fully consensual due to the age and power differences inherent in a family relationship. Therefore, while sexual assault laws differ widely from state to state and many cases of sexual abuse by a family member may not fall under the legal definition of rape, they are, functionally, rape and a women shouldn't be forced by the state to carry that child to term:

Laws vary from state to state regarding what constitutes crimes of incest, child sexual abuse, sexual assault, and rape. Regardless of state laws, unwanted sexual contact from a family member can have a lasting effect on the survivor

Secondly, child sexual assault by a family member can be particularly difficult to investigate or prosecute because the victim often cares deeply for their abuser and the desire to protect the family can result in these crimes being kept quiet:

It can be difficult for an individual to disclose sexual assault or abuse when they know the perpetrator. It can be especially difficult if the perpetrator is a family member.

What can keep a victim of sexual abuse by a family member from telling someone?

  • They may care about the abuser and be afraid of what will happen to the abuser if they tell.
  • They may also be concerned about other family members' reactions, fearing they won’t be believed or will be accused of doing something wrong.
  • They may have already tried to tell someone what happened, but the abuse was ignored or minimized.
  • They have been told by the perpetrator that what is happening is normal or happens in every family, and they don’t realize that it is a form of abuse.
  • They may not know that help is available, or they don’t know who to trust.
  • They may be afraid of getting in trouble for telling, or that the abuser will follow through with threats.

By including incest as a separate exception, you allow another avenue for victims to get an abortion if desired, without having to prove sexual assault in court.

  • Doesn't proving incest require at least as much as proving rape + accusing a family member? It would seem that incest doesn't allow an 'out' from that particular problem. – Spartacus May 16 at 16:32
  • Can you add a specific instance/example where incest against a non-consenting person is not covered by rape laws? This may be a better question for the law page... – Spartacus May 16 at 16:33
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    @Spartacus Especially in cases of abuse, consent can get murky and proving rape in criminal court can be difficult. Often, a victim may not consider themselves to have been raped, or may claim it was consensual to protect their abuser. Incest has both a lower standard of proof and is an objective fact, with no need to consider issues of whether there was or was not consent. You might ask how these exceptions are implemented in practice (that's a good question that I don't know the answer to) but the intent is to make the process easier for victims of sexual assault by a family member. – divibisan May 16 at 17:03
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    tl;dr with incest you only need to prove sex happened, not that it was non-consensual. – Andrew Grimm May 16 at 20:39
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It seems to me that rape exclusions should already cover child sex, since a child is legally incapable of consenting whether or not any child(ren) involved is related to the partner (child here being defined as anyone under 18).

  1. Incest is easier to prove. A DNA test on the fetus can prove it absolutely.
  2. It is not true that anyone under 18 cannot (legally) consent to sex. Often that age is younger.
  3. It may not be called rape for a child under the age of consent to have sex with an adult. The age for statutory rape can be lower than the age of consent. In between there may be a separate crime, e.g. in Arkansas, an adult having sex with a fifteen year old is a sexual assault rather than a rape.
  4. If the child is too young to consent to sex, then the child may also be too young to consent to a procedure like dilation and curettage. And who has the ability to consent for the child? Possibly the abuser. Treating incest separately allows for different rules in that situation.
  5. Even if not involving a child, there still may be an unbalanced power dynamic between the mother and father. For example, they could have had a sexual relationship that dated back to childhood but the pregnancy happened as an adult.
  6. Incest can have genetic consequences, which of course are unaffected by the question of consent.
  7. Incest is simpler. No need to prove lack of consent or underage or not married.

As a general rule, the rape exception allows the woman to define whether she was raped. But that doesn't necessarily work with an incestual rape, as she may feel that she consented. A separate exception for incest means that we don't have to ask that question.

0

1) Much, much increased risk of birth defect. According to this Czechoslovakian study it was approaching 50% of kids from incestuous relations had some serious physical deformities or mental impairment.

2) Evolutionary psychology shaping our moral views and legal system. Humans (like other animal) evolved to feel revulsion in case of incest, as it has very high chance of producing not-viable offspring. Regardless of any higher moral order (or lack of thereof) it simply instinctively feels wrong, so there is tendency to codify such feelings in to law, regardless whether it's compatible with other parts of ethical system system.

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