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Between the Eroticized Bourgeois Family and the Liberal Individual

A new, more ambiguous context for incest prohibition

By Brian Connolly Published 2016

Kunsthistorisches Museum, Vienna
Detail of Lot and His Daughters, Lucas Cranach the Elder, ca. 1528.

Why do we still prohibit incest? Despite our sense that the incest taboo is universal, beyond question, it is in fact neither consistent nor universal. The prohibition of incest has existed across cultures and epochs, but it has varied in significant ways to perform specific political, social, and moral work at specific moments. And we should be willing to ask: what cultural work does our incest taboo perform?

To answer that question, we need to turn to the nineteenth-century United States, when the meaning of incest had to do with complicated concerns about the middle-class family. Now a cornerstone of U.S. political life, the middle-class family—in its modern form as a cultural center of feeling, class, and consumption—had not existed in previous eras. And this new bourgeois experience of family, in its sentimentality and its encouragement of effusive affection, was both valued as a source of national morality and feared as a dangerous nest of eroticism.

That sentiment and effusion are still with us now. This is because the modern subject—the individual whose political relevance both the right and the left, though in different ways, extol—is fundamentally conditioned by the bourgeois family. The bourgeois family cannot be a site of intimacy without the hovering threat of incest; thus, the modern individual, too, is never free from the threat of incest.

While the specter of incest haunts the bourgeois family, it has not always led to calls for prohibition. Indeed, the conflict between the safety of the family and the rights of the individual are to this day at the heart of discussions of incest. In Germany, for instance, where there have been not infrequent petitions to courts to allow sibling marriages, the German Ethics Council, an advisory body to the federal government, stated in 2014, “the fundamental right of adult siblings to sexual self-determination is to be weighed more heavily than the abstract idea of protection of the family.” Put differently, the liberal individual has the right to incest.

To move into the world as individuals, we must leave our families behind—but this raises the concern that we will find our families again and feel differently about them. In our era, anxiety about natal alienation emerges in concerns about incest and sperm donation, for example. As the popularity of sperm donors increases yearly, some worry about “a risk of unwitting incest between half-siblings.” Since the nineteenth century, freedom from the burden of being overdetermined by one’s natal origin is as potentially incestuous as life in the prison house of the family.

If the nineteenth-century emergence of the liberal individual and the bourgeois sentimental family created a new context for incest prohibition, a context that remains with us, then incest’s historicity is also apparent in the 1970s revision of incest law. The revision has given rise, among other things, to questions about the legality of adult incest in New Jersey after New York magazine published claims from an eighteen-year-old living in the Midwest that she and her fiancé/father were planning to move to New Jersey, where adult consensual incest is not prohibited. The 1970s legal transformation, which emphasized incest as sexual violence, essentially normalized consensual adult incest.

In the nineteenth century, when state-by-state the biblical basis of incest law was given up, the variation in incest law could be extreme. New York, for instance, had no law prohibiting incest until 1830. The 1877 Ohio criminal code called seminal emission “an essential ingredient in the crime of incest,” thus making incestuous sex a crime only if the man reached orgasm. All of which is to say, if incest was prohibited in every state, what actually constituted incest was a rather ambiguous matter. In a world in which the family and the individual were increasingly figured as incestuous, anything like a unified incest prohibition was becoming more and more difficult to articulate.

Incest law in the nineteenth century, for the most part, treated incest as a consensual act—if convicted, both parties were guilty. While some states, like Ohio, had so-called “rape of daughter” statutes, these were anomalous, and were part of rape law not incest law. While there were some changes in the law in the twentieth century, the language of morality and biblical phrases like “carnal knowledge” continued to suffuse statutes. However, feminist activism in the 1970s led to a wholesale transformation of incest law as part of the reform of rape statutes.

Feminist activists in the 1970s and ’80s worked tirelessly to reform sexual assault law to better address the victims of sex crimes. While incest had been primarily a part of the civil law, which prohibited and continues to prohibit incestuous marriages, the reform of rape legislation worked to include incest in the criminal code. Prior to rape reform legislation, father-daughter incest fell under three statutes: incest, statutory rape, and child abuse. In 1974, Michigan became the first state to pass comprehensive rape reform legislation making incest a subcategory of rape.

Unlike most states that followed, Michigan repealed its criminal incest statute in its entirety. New Jersey was one of the few states to follow suit, effectively decriminalizing adult consensual incest. More states decriminalized consenting sexual activity between teenage relatives, provided the age gap was no more than three to four years, effectively legalizing brother-sister incest, at least for a short period of time. While New Jersey and Michigan were exceptions, the reconstitution of incest as sexual violence in the law was part of a self-conscious political strategy. The laws became sex neutral and the language was more clinical than moral, putting them in line with feminist psychology and social work. And this emphasis on coercion worked to make consensual incest’s status as a transgression more and more ambiguous.

When reports of the legality of adult incest in New Jersey surfaced after the publication of the eighteen-year-old’s New York interview last year, a bill was quickly introduced to ban incest between consenting adults—legislation that has not yet passed. The absence of a ban on adult consensual incest, however revolting some might find it, is not an anomaly but the effect of the eroticized bourgeois family and liberal individual, both of which have been with us for more than two centuries. We have to confront then the idea that incest is, perhaps, becoming something new.

Brian Connolly, Member in the School of Social Science, researches kinship, religion, and law in the nineteenth-century United States. Connolly is Associate Professor at the University of South Florida.

Published in The Institute Letter Spring 2016