The People v. McEvoy

Filed 4/15/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A132360
v.
DANIEL RUBEN MCEVOY, (Contra Costa County
Super. Ct. No. 5-100933-1)
Defendant and Appellant.
Daniel McEvoy appeals from convictions of incest and assault arising from a
sexual encounter with his sister. He challenges the constitutionality of California‘s incest
statute as violating his due process rights by criminalizing consensual sexual conduct
between adults. We affirm.
STATEMENT OF THE CASE
Appellant was charged by information filed on August 20, 2010, with incest
(Pen. Code, § 285—count one)1, oral copulation of an unconscious person (§ 288a,
subd. (f)—count two), sexual penetration of an unconscious person (§ 289, subd. (d)—
count three), attempted rape by use of drugs (§§ 261, subd. (a)(4)/664—count four), and
assault with attempt to commit rape (§ 220, subd. (a)—count five). It was alleged that
appellant had suffered a prior serious felony conviction (§§ 667, subds. (b)–(i), 1170.12)
and had served a prior prison term for a different felony offense (§ 667.5, subd. (b)), and
that he was ineligible for probation due to these and other felony convictions (§ 1203,
subd. (e)(4)).
1
Unless otherwise indicated, all statutory references are to the Penal Code.
1
Jury trial began on April 27, 2011. On May 6, the prosecutor filed an amended
information seeking to charge forcible rape (§ 261, subd. (a)(2)) instead of the
section 289, subdivision (d) violation in count three and altering the language of count
four to charge attempted rape of an unconscious person. The court denied the motion to
amend count three, finding that although the evidence was sufficient to submit the
amended charge to the jury, appellant would be prejudiced by the amendment. The
motion to amend count four was granted. Count three was subsequently dismissed under
section 1118, with the agreement of the parties.
On May 11, the jury found appellant guilty of incest and of simple assault (§ 240),
a lesser offense under count five. The jury found appellant not guilty of oral copulation
of an unconscious person or the lesser offense of attempted oral copulation, not guilty of
attempted rape of an unconscious person, and not guilty of assault with intent to rape.
On June 6, the court found the alleged strike and prior convictions true. On
June 8, appellant was sentenced to a total prison term of two years eight months: the
mitigated term of one year four months, doubled to two years eight months, on count one.
A six-month sentence on count two was stayed pursuant to section 654.
Appellant filed a timely notice of appeal on June 9, 2011.
STATEMENT OF FACTS
Appellant is Jane Doe‘s brother, older by slightly less than two years. They have
two other brothers and a sister. Growing up, Doe was closest to appellant, whom she felt
was her protector against an abusive father and uncle.
In August 2008, Jane Doe was living in a three-bedroom house in Oakley with
Michael C. (Michael) and their three children, all under 10 years of age. Michael and
Doe had been together since 1999; their relationship ended in October of 2010. Doe‘s
then 17-year-old son (Son) was also living with them.
On August 5, 2008, appellant was staying with Doe and her family. Michael was
trying to help appellant get a job with Michael‘s then-employer, and Doe and appellant
were reminiscing and catching up after not having seen each other for a couple of years.
2
That evening, Michael did not notice anything unusual about Doe and appellant‘s
interaction. Neither he nor Doe saw any of the adults drinking beer, Michael did not see
any of them smoking marijuana, and Doe did not smoke any methamphetamine. At some
point, appellant braided Doe‘s hair, volunteering to do so after Doe asked Son to do it and
he did not want to. This seemed ―normal‖ to Doe, as appellant was her ―best friend‖ and
brother.
Doe and appellant stayed up talking after Michael and the children went to bed in
the master bedroom. At some point, Doe felt a migraine coming on and took a Vicodin,
the prescription medication she used to treat migraines that she suffered due to a head
injury sustained in a 2007 car crash. She decided to go to sleep in one of the two beds in
her sons‘ room and appellant went to sleep in the other bed. Doe did not see anything
wrong with this; they were still talking and appellant was her brother.
Doe, who had been sleeping under the blankets, woke up feeling someone‘s
tongue on her vagina. At first, Doe thought it was Michael, but she realized it was
appellant when he tried to kiss her lips, asked her to kiss him, said he loved her and
whispered, ―we were meant to be. We are soulmates. We will always be together.‖
Scared, Doe kept her eyes closed and ―froze.‖ Appellant pulled down her underwear and
penetrated her vagina with his penis. She pretended to be asleep. Doe was afraid there
might be violence between Michael and appellant, and did not want her children to see
their father beating up their uncle and hear them talk about what happened. When
appellant was ―done,‖ he pulled Doe‘s underwear up, pulled her pajamas down and
covered her. She heard him unlock the bedroom door and lie down.
When Doe woke in the morning, she felt ―lost.‖ She testified, ―I felt like my
whole life was make believe. I thought it was brother/sister love. I just . . . I was just
lost. I just wish it wasn‘t what it was.‖ Michael came into the room to wake her and she
went with him into the master bedroom and asked him to wake appellant and take him to
work. She did not tell Michael what had happened because the children were there, but
3
she wanted appellant out of the house: ―I wanted him out of my house. I didn‘t want to
see him or even look at him. Or even smell him.‖
At the time of trial, Doe testified, ―I have a lot of hate. I . . . I . . . have come to
make myself just understand, try to understand why it was what it was but I can‘t so I
have no brother. I have no brother. And that‘s what I will make myself believe in order
to deal with what I have to deal with.‖ She denied offering appellant a head massage or
asking him to lie on the bed with her in her sons‘ room. Doe acknowledged that her
relationship with Michael involved domestic violence. Doe had suffered a misdemeanor
conviction in 2009 for petty theft.2
Michael testified that when he went in to wake Doe on the morning of August 6,
he noticed from her facial expression that something was wrong. She looked frightened
and was very emotional; she would not tell him what was wrong, but kept telling him to
get appellant out of the house. Michael took appellant with him to work. After he left,
Doe told Son what had happened. Son called Michael at work and told him Doe had said
appellant raped her. In disbelief and then anger, Michael confronted appellant, who
denied the accusation. Michael physically restrained appellant and started to call the
police, appellant tried to talk him out of it, then Michael‘s boss opened the door to the
room they were in and appellant ran out. Appellant got a co-worker who was on his way
to lunch to drive him to BART. Michael followed in his own car, but when he was
running after appellant in the terminal he was stopped by BART police. They radioed to
try to stop appellant, but it was too late.
Michael acknowledged that he had been arrested in the past for domestic violence
against Doe, and had been convicted of violating domestic violence restraining orders in
1998 and 2001. The police were called to Michael and Doe‘s house a month after the
present incident for another domestic dispute. In January 2008, Michael applied for a
2
By the trial court‘s characterization, Doe was very emotional on the stand,
―weeping throughout,‖ having difficulty speaking and on at least one occasion vomiting.
4
restraining order against Doe, saying in his supporting statement that Doe had made
many false police reports.
Michael testified that the medication Doe took for her migraines ―really put her
down,‖ leaving her ―incoherent,‖ not aware of what she was doing and ―asleep.‖
Police Officer William Koerner arrived at Doe‘s house soon after 12:30 p.m. on
August 6. Doe was in the driveway, her eyes red and puffy, and visibly distraught.
Koerner spoke with Doe for approximately an hour, during which time she had to stop
several times to compose herself and a few times broke down crying. She did not appear
angry or vindictive. Neither Koerner nor Sergeant Craig Brooks, both of whom qualified
as experts on recognizing the signs of a person being under the influence of
methamphetamine, saw any signs of Doe being under the influence of methamphetamine.
Koerner testified that Doe told him she initially thought it was Michael in bed with
her because the dog who was at the foot of the bed was not growling and the dog only
growled at appellant, and also because Michael knew her menstrual cycle was over. The
officer also testified that Doe told him she did not call for help during the incident with
appellant because she thought there might be violence between appellant and Michael
and one might hurt or kill the other, but she did not mention anything about not wanting
her children to see violence or find out what had happened. Nor did she mention hearing
a door unlock when appellant moved into the other bed.
Doe underwent a sexual assault examination the day after the incident. DNA
testing of sperm found on a vaginal smear taken from Doe‘s vagina determined that the
contributor was appellant. Michael and Son were ruled out as possible contributors. The
condition of the sperm indicated it had been deposited within 12 to 16 hours of the
examination.
Detective Antonio Benavides, testifying as an expert on victims‘ responses to
sexual assault, stated that there is no single typical response. Benavides testified that it is
not inconsistent with sexual abuse for a victim to ―play dead‖ or experience ―numbing
fear.‖ Some victims resist their attackers, others do not. During an assault and over time
5
afterward, victims might experience diminished alertness, numbness, nausea, vomiting,
hysteria, confusion or crying. Often victims will give a ―bare bones‖ account when they
first report an assault, then gradually disclose more as they develop a rapport with the
investigating officer. Certain questions are more helpful than others, and an interviewer
less well trained in this area may pose questions in a way that does not elicit the full
story.
When Benavides first spoke with Doe on August 11, on the telephone, she was
very emotional and crying. Benavides remained in contact with Doe during the two years
following the incident. She expressed to him on numerous occasions that she was afraid
of her children finding out what happened because she did not want to ―interrupt what
she calls their innocent minds,‖ and that on the night of the incident she was afraid of her
children witnessing violence as a result of the incident.
Defense
Appellant testified that on August 5, 2008, he, Doe and Michael smoked
marijuana together in the car on the way to Doe‘s house, and once there continued to
smoke and drink beer. They smoked ―a lot‖ of marijuana and appellant drank three or
four beers. Later, they were watching television and talking in the living room with the
children, and Doe asked appellant to braid her hair. Michael went into the master
bedroom. When he was finished with Doe‘s hair, appellant went outside to finish
smoking his marijuana. He saw lights come on in the garage. When he came back
inside, no one was around, then Doe came in. Her demeanor seemed different than it had
been earlier, more energetic, and she was wearing ―a little black robe.‖ Appellant
thought she seemed high on methamphetamine rather than marijuana, from her demeanor
and because she was coming from the garage, which appellant knew was where she went
to use methamphetamine.
Appellant said he was going to watch movies in Doe‘s daughter‘s room, where he
was staying. Doe asked him to sleep in the boys‘ room with her. Appellant went with
her to talk in the boys‘ room, intending to leave once she fell asleep. He walked into the
6
room and got in one of the beds as Doe followed, closed the door and got in the other
bed. She asked if she could massage his head, so he sat on her bed, then lay down next to
her when she asked him to. She massaged his head, then kissed him several times on his
face and put his hand on her waist or hip. Doe pulled appellant on top of her and he
―went with the flow.‖ She pushed him ―down‖ to her ―privates‖ and he licked or kissed
her thigh, then moved back up, kissing her on the stomach, neck and mouth. They
undressed and had intercourse. Doe ―shush[ed]‖ appellant because he was making
grunting noises, told him to slow down, and held him for a little while afterward.
Appellant then went to the other bed, turned away from Doe, threw the blanket over his
head and went to sleep. He was ―disgusted‖: ―When I couldn‘t stop myself at one point
because something was going on and at another I—it was over with and, you know, it
just—it was—it wasn‘t good.‖ Appellant testified that he knew it was morally and
legally wrong to have intercourse with his sister but still chose to do so. At the time, he
―wasn‘t thinking about it being right or wrong,‖ he was ―just going with the flow.‖
Appellant testified that he was ―buzzed‖ from the marijuana and beer he consumed, but
he remembered what happened.
In the morning, Michael came into the room asking if appellant was ready to go to
work. Appellant got up, left the room, and went to work with Michael. About an hour
later, he called Doe and said he was not going to move in with her and Michael, which
Doe had wanted him to do. She said ―it‘s okay, it‘s no big deal,‖ and told him to just
come and get his things and he said ―okay‖ although he knew he was not going to go
back. He filled out a job application, then went to sleep in Michael‘s car. After
lunchtime, Michael came and opened the car door, saying Doe had just called and said
appellant raped her. Standing outside the car, appellant called Doe but Son answered and
said Doe was ―freaking out‖ and crying and would not get on the phone. Son agreed to
put the phone to Doe‘s ear and appellant asked her, ―Why are you doing this?‖
Appellant acknowledged that in 1983, when he was 12 years old, he raped a
woman at knifepoint in her home, having entered the house in order to do so. He
7
acknowledged first asking the woman for $20, but denied that his purpose in entering the
house was to get money. Appellant admitted the offense in court and spent eight years in
the California Youth Authority. The victim, who was 28 years old at the time of the rape,
testified that appellant first asked her for $20, then threatened her with the knife and
raped her. Appellant additionally acknowledged having been convicted in 1993 for
felony residential burglary, in 2002 for felony forgery and misdemeanor false
personation, in 2005 for misdemeanor false identification to a police officer, and in 2006
for felony car theft.
DISCUSSION
Appellant contends that section 2853 violates the right to liberty under the due
process clause of the Fourteenth Amendment by criminalizing consensual sexual activity
between adults. His argument is based on Lawrence v. Texas (2003) 539 U.S. 558(Lawrence), which found unconstitutional a Texas statute prohibiting ― ‗deviate sexual
intercourse with another individual of the same sex.‘ ‖ (Id. at p. 563.)
Lawrence overruled the decision in Bowers v. Hardwick (1986) 478 U.S. 186(Bowers), which had upheld a state law criminalizing adult consensual sodomy.
(Lawrence, supra, 539 U.S. at p. 578.) Bowers defined the question as whether the
federal constitution ―confers a fundamental right upon homosexuals to engage in
sodomy‖ and answered in the negative. (Lawrence, at pp. 566, 578.) Although both
decisions involved convictions based on consensual adult sexual conduct, Lawrence
framed the issue differently, asking ―whether the petitioners were free as adults to engage
3
Section 285 defines prohibited incest by reference to statutes prohibiting
marriage between specified parties: ―Persons being within the degrees of consanguinity
within which marriages are declared by law to be incestuous and void, who intermarry
with each other, or who being 14 years of age or older, commit fornication or adultery
with each other, are punishable by imprisonment in the state prison.‖ Family Code
section 2200 declares: ―Marriages between parents and children, ancestors and
descendants of every degree, and between brothers and sisters of the half as well as the
whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and
void from the beginning, whether the relationship is legitimate or illegitimate.‖
8
in the private conduct in the exercise of their liberty under the Due Process Clause of the
Fourteenth Amendment to the Constitution.‖ (Id. at p. 564.) Lawrence emphasized the
liberty and autonomy interests at stake: ―[O]ur laws and tradition afford constitutional
protection to personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. . . . [¶] ‗These matters, involving the most
intimate and personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty protected by the Fourteenth
Amendment. At the heart of liberty is the right to define one‘s own concept of existence,
of meaning, of the universe, and of the mystery of human life. Beliefs about these
matters could not define the attributes of personhood were they formed under compulsion
of the State.‘‖ (Id. at p. 574, quoting Planned Parenthood of Southeastern Pa. v. Casey
(1992) 505 U.S. 833, 851.)
Urging that there is no more justification for criminalizing consensual adult
incestuous conduct than there is for criminalizing consensual adult homosexual conduct,
appellant draws upon the Lawrence court‘s refusal to view majoritarian moral views as a
sufficient basis for defining a criminal law. Lawrence recognized that the historic
condemnation of homosexual conduct as immoral that the Bowers court discussed was
―shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for
the traditional family,‖ and that these concerns were held by many persons as ―profound
and deep convictions accepted as ethical and moral principles to which they aspire and
which thus determine the course of their lives.‖ (Lawrence, supra, 539 U.S. at p. 571.)
But the Court found these considerations did not answer the question it had to resolve:
―The issue is whether the majority may use the power of the State to enforce these views
on the whole society through operation of the criminal law. ‗Our obligation is to define
the liberty of all, not to mandate our own moral code.‘ ‖ (Ibid., quoting Planned
Parenthood of Southeastern Pa. v. Casey, supra, 505 U.S. at p. 850.) Lawrence
explained, drawing on Justice Stevens‘s dissent in Bowers: ― ‗Our prior cases make two
propositions abundantly clear. First, the fact that the governing majority in a State has
9
traditionally viewed a particular practice as immoral is not a sufficient reason for
upholding a law prohibiting the practice; neither history nor tradition could save a law
prohibiting miscegenation from constitutional attack. Second, individual decisions by
married persons, concerning the intimacies of their physical relationship, even when not
intended to produce offspring, are a form of ―liberty‖ protected by the Due Process
Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate
choices by unmarried as well as married persons.‘ [Citation.]‖ (Lawrence, at pp. 577-
578, quoting Bowers, supra, 478 U.S. at p. 216, dis. opn. of Stevens, J.) [fns, and
citations removed by Lawrence court].)
As appellant recognizes, People v. Scott (2007) 157 Cal. App. 4th 189, 192 (Scott),
rejected the contention that criminalization of incest between consenting adults violates
the due process rights explicated in Lawrence 4 The defendant in Scott had sex with his
daughter shortly after her 18th birthday. (Id. at p. 191.) The daughter had been raised by
another relative and had seen her father only occasionally during her childhood. After a
family party celebrating her birthday, the father got into bed with the daughter, who was
fully clothed, pulled down her pants and had intercourse; she was ―quietly crying and
‗scared.‘ ‖ (Id. at pp. 191-192.) Immediately afterward, she left the house and later told
4
Scott was cited with approval in In re Marriage Cases (2008) 43 Cal. 4th 757,
829, footnote 52, as an example of cases explaining ―why our nation‘s culture has
considered [polygamous or incestuous relationships] inimical to the mutually supportive
and healthy family relationships promoted by the constitutional right to marry‖ and
holding that ―the state continues to have a strong and adequate justification for refusing to
officially sanction polygamous or incestuous relationships because of their potentially
detrimental effect on a sound family environment.‖ The Supreme Court emphasized that
its conclusion that ―the constitutional right to marry properly must be interpreted to apply
to gay individuals and gay couples does not mean that this constitutional right similarly
must be understood to extend to polygamous or incestuous relationships‖ and ―does not
affect the constitutional validity of the existing legal prohibitions against polygamy and
the marriage of close relatives.‖ (Ibid.) These statements are not dispositive of the issue
in the present case, of course, because the question here is not whether the state may
prohibit marriage between close relatives but, whether it may criminalize consensual
sexual relationships between such relatives.
10
other relatives what had happened. (Id. at p. 192.) The father claimed that he had fallen
asleep in his bed, thought he was with his girlfriend, and stopped having intercourse as
soon as he realized he was in bed with his daughter. (Ibid.)
Scott presumed for purposes of the defendant‘s argument that the intercourse in
that case was consensual, because consent is not a defense to incest and the jury made no
finding that the intercourse was not consensual. (Scott, supra, 157 Cal.App.4th at p. 193,
fn. 5.) The court recognized that Lawrence ―noted ‗an emerging awareness that liberty
gives substantial protection to adult persons in deciding how to conduct their private lives
in matters pertaining to sex‘ ‖ but reasoned that ―[d]espite the Lawrence court‘s broad
pronouncements regarding the liberty interests of persons ‗in matters pertaining to sex‘
(Lawrence, supra, 539 U.S. at p. 572), Lawrence dealt only with sodomy between
consenting adults of the same sex. It did not deal with other ‗matters pertaining to sex,‘
including consensual incest between adult members of the opposite sex who are related
by consanguinity. Indeed, the court emphasized the limited nature of its holding by
noting that the case before it did not involve, among other things, ‗persons who might be
injured or coerced or who are situated in relationships where consent might not easily be
refused.‘ (Lawrence, at p. 578.) This aptly describes adult daughters, who are typically
in positions of vulnerability vis-à-vis their older, and thus more authoritative fathers, ‗in
matters pertaining to sex.‘ ‖ (Scott, at p. 193.)
Appellant urges that the present case should yield a different result because of the
different relationship Doe held to appellant.5 Scott‘s conclusion about the vulnerability
5
Like the Scott court, for purposes of appellant‘s argument, we presume the sex
was consensual because the jury made no findings that demonstrate it was not
consensual. Contrary to appellant‘s suggestion, however, we are not convinced that the
jury‘s acquittal on the oral copulation and attempted rape charges demonstrate that it did
not believe Doe‘s version of the events. The oral copulation charge required the jury to
find that Doe was unable to resist because she was unaware of the nature of the act in that
she was unconscious, asleep, not aware the act was occurring, or not aware of the
essential characteristics of the act because the perpetrator tricked, lied to or concealed
information from her. (CALCRIM No. 1018.) The attempted rape charge similarly
11
of an adult daughter—in that case, only barely an adult at age 18—to her father, in
appellant‘s view, does not apply to the relationship between a 36-year-old sister and her
38-year-old brother. While the facts of Scott may be more extreme, we are not persuaded
that this distinction requires a different conclusion. ―[T]he state has a legitimate and
important interest in protecting families.‖ (Lowe v. Swanson (6th Cir. 2011) 663 F.3d
258, 264.) Decisions of the United States Supreme Court ―establish that the Constitution
protects the sanctity of the family precisely because the institution of the family is deeply
rooted in this Nation‘s history and tradition.‖ (Michael H. V. Gerald D. (1989) 491 U.S.
110, 123-124.) ―The major policy to be effected by a law of incest is the protection of the
integrity of the family unit.‖ (Explanatory Note for Model Penal Code § 230.2.)
Laws prohibiting incest protect against ―the destructive influence of intra-family, extra-
marital sexual contact.‖ (Lowe v. Swanson, at p. 264.) As Scott explained, ―[l]ike other
states, California has a legitimate interest in maintaining the integrity of the family unit,
in protecting persons who may not be in a position to freely consent to sexual
relationships with family members, and in guarding against inbreeding. (State v.
Freeman (2003) 155 Ohio App. 3d 492, 497 [2003 Ohio 6730, 801 N.E.2d 906] [incest
laws serve legitimate state interest of protecting integrity of family unit]; Smith v. State
(Tenn.Crim.App. 1999) 6 S.W.3d 512 [incest is punished, among other reasons, to
promote and protect family harmony and to protect children from the abuse of parental
authority]; State v. Kaiser (1983) 34 Wash. App. 559, 566 [663 P.2d 839] [incest statute
prevents mutated births]; State v. Geddes (1957) 101 N.H. 164, 165 [136 A.2d
required a finding of inability to resist due to unawareness. (CALCRIM No. 1003.) Doe
testified that she was aware of the act of oral copulation but at first thought it was
Michael, and that once she realized it was appellant, she pretended to be asleep and did
not resist the sexual acts because she feared violence might result if Michael learned what
was happening. The jury could have believed Doe‘s testimony and found appellant not
guilty because Doe was not ―unconscious‖ and/or was aware of the nature of the act but
chose not to resist for reasons other than unconsciousness. In short, while the jury‘s
findings do not reflect a determination that Doe did not consent, neither do the findings
indicate she did consent.
12
818] [same].)‖ (Scott, supra, 157 Cal.App.4th at p. 194.) These interests are at play in a
sexual relationship between siblings.
Challenging the legitimacy of the interests said to justify criminalizing consensual
adult incest, appellant argues that incest is not universally prohibited and viewed as
immoral. Review of the material appellant relies upon, however, indicates that the type
of incest involved in the present case, and criminalized by section 285, is almost
universally prohibited in the United States. Appellant presents an overview of incest
statutes in this country, as set forth in a law review article considering the impact of
Lawrence on other incest laws: ―All but three states criminalize some forms of
consensual adult incest. Every state that does so criminalizes at least incest between
parents and their children. All but one state that criminalizes incest also applies its laws
to sex between siblings. All but six states that criminalize incest extend their laws to sex
between aunts or uncles and nephews or nieces. Twenty-two states criminalize sex
between stepparents and stepchildren, although some provide for a consent defense
between adults. Eight states criminalize sex between first cousins, although two of those
states allow the cousins to marry and have sex, if either they are old enough or if at least
one of them is sterile. . . . The statutes also vary in how they handle adopted children.‖
(McDonnell, Privacy Rights in a Post Lawrence World: Responses to Lawrence v. Texas:
Is Incest Next? (2004) 10 Cardozo Women‘s L.J. 337, 349 [fns. omitted] (Privacy Rights
in a Post Lawrence World).)
Appellant‘s point is the variation in how states define prohibited incest, which he
sees as undermining the rationale for the interdiction. But the summary makes clear that
the relationships covered by section 285—and certainly his relationship with Doe—are
prohibited in all but a few states. Section 285 criminalizes incest between parents and
children, ancestors and descendants, full siblings, half siblings, uncles and nieces and
aunts and nephews. Sibling incest, according to the summary quoted above, is prohibited
in 46 of the 50 states in this country; parent/child incest is prohibited in 47 states and
uncle/niece and aunt/nephew incest is prohibited in 41 states. By contrast, only eight
13
states criminalize first cousin incest. The author of the law review article from which
these facts are drawn noted a trend toward decriminalizing first cousin incest, resulting in
fewer states forbidding this type of incest than forbade sodomy before Lawrence, but
found ―the trend toward decriminalizing closer relationship incest is non-existent.‖
(Privacy Rights in a Post Lawrence World, supra, 10 Cardozo Women‘s L.J.at p. 350.)
Similarly, if there is force to appellant‘s argument against the genetic rationale for
the incest prohibition, it is largely limited to relationships outside the core of the
prohibition. Appellant cites another law review note for the proposition that research
within the past two decades ―has shown that the children of closely related couples do not
have an increased risk of genetic defects, and that in some cases consanguineous
parentage may actually decrease the risk of certain diseases.‖ (Note, Tainted Love: What
the Seventh Circuit Got Wrong in Muth v. Frank (2007) 56 DePaul L.Rev. 1065, 1087-
1088, 1090 (Tainted Love).) The cited pages discuss research indicating a lack of
evidence for the belief that fertility is reduced in consanguineous unions, and state that
―[o]ne study has shown that consanguineous parentage may decrease the risk of certain
lymphoid malignancies like breast cancer.‖ (Id. at p. 1087, citing S. Denic & A. Bener,
Consanguinity Decreases Risk of Breast Cancer—Cervical Cancer Unaffected, 85 Brit.
J. Cancer 1675 (2001). The Note criticizes research finding negative health
consequences from recessive genetic traits, and emphasizes that nonincestuous unions
can also result in children with recessive genetic traits. (Tainted Love, at pp. 1087-1088.)
But the strongest affirmative statement that such consequences do not occur is that
merely that ―[t]he genetic ‗dangers‘ of first-cousin consanguineous unions producing
‗damaged‘ progeny is probably not higher than nonconsanguineous couplings.‖ (Id. at
p. 1088.)
First cousin incest is not at issue here, and the genetic risk from pairings of closer
relatives appears to be much higher. ―In any given non-consanguineous relationship, the
rate of severe abnormalities in offspring is estimated at two to three percent. For
offspring of first cousin incestuous relationships, the risk increases to approximately four
14
to seven percent, while children of siblings or a parent-child coupling have a risk between
thirty-one and forty-four percent.‖ (Chan, Accidental Incest: Drawling the Line—or the
Curtain? —for Reproductive Technology, 32 Harv. J.L. & Gender 59, 85 [fns. omitted].)6
This increased risk is surely sufficient to provide a legitimate basis for criminalizing
incest, at least for the core relationships covered by section 285.
As Scott also explained, ―Lawrence held that the Texas statute was
unconstitutional, not because sodomy between consenting adults is a fundamental right
(Lawrence, supra, 539 U.S. at p. 586 (dis. opn. of Scalia, J.)), but because the statute
‗furthers no legitimate state interest which can justify its intrusion into the personal and
private life of the individual.‘ (Id. at p. 578.) Lawrence thus ‗did not announce . . . a
fundamental right . . . for adults to engage in all manner of consensual sexual conduct,
specifically in this case, incest.‘ (Muth v. Frank (7th Cir. 2005) 412 F.3d 808, 817.)
6
The support cited for the quoted statements includes Robin L. Bennett, Louanne
Hudgins, Corrine O. Smith & Arno G. Motulsky, Inconsistencies in Genetic Counseling
and Screening for Consanguineous Couples and Their Offspring: Recommendations of
the National Society of Genetic Counselors, 11 J. Genetic Counseling 97, 104-107 (2002)
[cited for examples of studies determining baseline population estimates for major birth
defects and genetic disorders; risk for offspring of first cousin relationship 1.7-2.8 percent
above the general population risk; 31.4 percent risk for children of sibling or parent-child
incestuous relationships]; Bernadette Modell and Aamra Darr, Genetic Counseling and
Customary Consanguineous Marriage, 3 Nature Reviews Genetics 225 (2002), available
at http://www.nature.com/nrg/journal/v3/n3/full/nrg754.html [estimating 2-2.5% of non-
consanguineous matings produce children with birth defects, while first cousin matings
produce double that number, but pointing out flaws in data collection]; Helen V. Firth,
Jane A. Hurst & Judith G. Hall, Oxford Desk Reference: Clinical Genetics 370 (2005)
(Firth et al.). (Accidental Incest, supra, 32 Harv. J.L. & Gender at p. 85, fn. 164, 165.)
Firth et al. state that for offspring of first-degree relationships (parent/child or
sibling/sibling), ―[t]here is an observed increase of 30% in severe abnormalities and
mortality, giving an overall risk of ~1/3 for death in childhood or severe abnormality. In
addition, there is an increased risk for mental retardation without physical anomaly
bringing overall risk close to 1/2 (50%).‖ (Firth et al., supra, at p. 370.) The authors
point out that because this observed risk is considerably greater than the probability or
estimated risk of 12.5 % in such relationships, ―empiric data is preferable over estimated
data.‖ (Ibid.)
15
And, although there was no rational basis for the Texas statute in Lawrence, there is a
rational basis for criminalizing incest, specifically between consenting adults of the
opposite sex who are related by consanguinity . . . .‖ (Scott, supra, 157 Cal.App.4th at
pp. 93-194.)
Other courts have also rejected claims that the criminalization of incest violates
Lawrence. (Lowe v. Swanson, supra, 663 F.3d 258 [stepfather and adult step-daughter,
habeas petition challenging state court decision]; State v. Lowe (Ohio 2007) 861 N.E.2d
512 [stepfather and adult step-daughter]; Muth v. Frank, supra, 412 F.3d 808 [brother
and sister in large, dysfunctional family, separated for years, met as adults, married, had
children]; State v. Freeman, supra, 801 N.E.2d 906 [father and adult daughter]). Scott
distinguished State v. John M. (Conn.App. 2006) 894 A.2d 376, in which a Connecticut
appellate court had invalidated the state‘s incest statute on equal protection grounds
because it criminalized heterosexual conduct, but not homosexual conduct, between
equivalently related persons and no legitimate basis justified the classification. (Scott,
supra, 157 Cal.App.4th at p. 194.) The Connecticut Supreme Court subsequently
reversed this decision, interpreting the incest statute to apply equally to homosexual
relationships of the requisite degree of kinship. (State v. John F.M. (Conn. 2008) 940
A.2d 755, 757, 766-767.)
We agree with the Scott court. As Scott noted, while Lawrence recognized a
liberty interest in certain consensual adult sexual conduct, it did not find this interest to be
a fundamental right or apply strict scrutiny to invalidate the law. (Scott, supra,
157 Cal.App.4th at p. 193; Muth v. Frank, supra, 412 F.3d at pp. 817-818; Lawrence,
supra, 539 U.S. at p. 578.) Even applying a heightened level of scrutiny rather than a
traditional ―rational basis review,‖ as some courts have found Lawrence requires (Witt v.
Department. of Air Force (9th Cir. 2008) 527 F.3d 806, 816-818 [―Don‘t Ask Don‘t Tell‖
statute regulating military service of homosexual persons must satisfy intermediate level
of scrutiny under substantive due process]; Cook v. Gates (1st Cir. 2008) 528 F.3d 42,
51-56 [applying intermediate level of scrutiny to reject due process challenge to ―Don‘t
16
Ask Don‘t Tell‖ statute]; see Lowe v. Swanson, supra, 663 F.3d at pp. 261-263
[recognizing courts‘ differing interpretations of level of scrutiny applied in Lawrence]),
California‘s interests in protecting the integrity of the family unit and protecting against
inbreeding are sufficiently important to justify section 285‘s incest prohibition.
The judgment is affirmed.
_________________________
Kline, P.J.
We concur:
_________________________
Haerle, J.
_________________________
Lambden, J.
17
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Leslie G. Landau
Attorney for Appellant: Maureen M. Bodo
By appointment of the Court of Appeal
Under the First District Appellate Project
Assisted-case system
Attorneys for Respondent: Kamala D. Harris, Attorney General
Dane R. Gillette, Chief Asst. Atty. Gen.
Gerald A. Engler, Sr. Asst. Atty. Gen.
Eric D. Share, Supervising Deputy A.G.
Christopher W. Grove, Deputy Atty. Gen.
18