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Should Incest Be Legal?

Incest makes me queasy.  It’s gross, disgusting, revolting, vile, and so Freudian. But what if Freud was right? What if we really do want to have sex with our parents?

Take, for example, David Epstein, a professor of political science at Columbia University who had what he describes as a consensual sexual affair with his twenty-something daughter.

According to Epstein’s lawyer, Matthew Galluzzo,

Academically, we are obviously all morally opposed to incest and rightfully so.  At the same time, there is an argument to be made… to let go what goes on privately in bedrooms.  It’s OK for homosexuals to do whatever they want in their own home. How is this so different?

It’s easy to just write off these comments as proof that a good lawyer will say anything to defend his client.  But let’s breathe through the disgust and consider what is the crux of the problem: the limits of the liberal subject. American law is based on the myth of the liberal subject, running around making contracts with employers and spouses alike in a way that is described as “consensual” and therefore “legal.”  Nearly all of U.S. sex law is based on this very notion of “consent.”  Children cannot consent to sex, neither can the dead nor animals.  So it makes legal sense (as well as cultural logic) to insist that pedophilia, necrophilia, and zoophilia are not only icky, but illegal.

Yet the liberal subject reaches its limits when sex between consenting adults is also sex that goes against our morality as a culture.  The truth is that homosexual sex was long considered not just a sign of insanity, but disgusting and revolting.  If we left it up to community standards, sodomy would still be illegal in  most states as it was until 2003′s Lawrence v. Texas Supreme Court decision.  But as a culture we have decided that sex between adults without coercion, even sex that most people find disgusting, is not something that should be regulated.

And yet the limits of the liberal subject and the legal system built upon it come to the fore with cases like incest.  Incest is something that some people are talking more openly about enjoying.  Books about incestuous affairs (all between fathers and daughters) like MacKenzie Phillips’ book High on Arrival, about her affair with Mamas and Papas’ John Phillips, can be bought at any bookstore.  Phillips calls the affair “consensual” and a result of her worshipful relationship to her famous father.  Or there was writer Kathryn Harrison’s memoir, The Kiss, about her “love affair” with her father.

Clearly incest is coming out of the closet, so much so that Swiss legislators are calling for the decriminalization of consensual incest and such relationships are already legal in the Netherlands, Spain, Turkey, Israel and China.

But here’s where the limits of the liberal subject are felt.  Because although consent is always problematic (do we really consent to work or are we obliged to do so?), it is even more problematic in conditions of extreme power imbalances.  This is why most employers forbid sex between management and employees, most schools forbid sex between professors and their students, and most families do not encourage sex between parents and children, even “adult” children.

But let’s just say that the power balance between a father and daughter is not skewed—let’s just say the daughter is the one who is fabulously wealthy and famous and powerful and the father is a nobody and they have a consensual affair.  Does that then make it OK?

I’m going to say no:  not just because it makes me ill to think about or because I think the community should regulate the morality of adults, but because I believe such relationships are like second-hand smoke.  They threaten the health of all of us by infecting familial relations with the possibility of sexual relations.  If incest comes out of the closet and is accepted as just an alternative lifestyle between consenting adults, then all parent/child relationships are eroticized, at least potentially, since your father may just be your next lover.

And so despite the rather brilliant legal defense that having sex with your daughter is the same as being gay, I’m hoping that Epstein and other incest advocates go back in their closets even as his case and others force us to reconsider sex law as not just about the parties involved, but about everyone whose familial relationships will be potentially damaged as a result.

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