The long trajectory of our slippery historical slope

Ever since some asshole of a leftist professor I'd never heard of before was discovered to be screwing his 24-year old daughter, there has been a raging debate over incest in the blogosphere. (Hmmm... I don't like the way that came out; I think I should say "debate in the blogosphere over incest.")

For a great example of the emotions this generates, see the comments to this post by Ann Althouse. (FWIW, I don't think there is a constitutional right to incest; nor do I see anything in the Constitution giving the federal government the right to prohibit incest. Or murder. Or "sodomy.") My personal opinions about "sodomy" laws have about as much to do with what I think about incest as what I think about sexual harrassment. As I have explained countless times, I think the most important factors in deciding what should be illegal is whether there is harm and if so who is harmed. (As well as who is complaining.) But these are not necessarily of constitutional dimension.

M. Simon already wrote a post about the incest issue, but alas! all I have done is to have left a flippant comment about Lot. According to the Bible, Lot offered his daughters to a mob that was threatening to break in his door and rape an angel. Bad as incest is, I think I'd still have preferred incest to rape at the hands of a mob, but that's just me, and I'm not Lot's daughter. (This touches on my admitted personal confusion about sex; I have never been able to understand why sexual touching is considered worse than, say, being punched in the face. If given the choice, I would prefer an unwanted touching of my genitals over a violent physical assault.)

So I thought it was time for a brief look at the historical immorality of incest. I figured the Bible would be as good a place to go as any, and in Leviticus, the punishments for incest (and a few other religious crimes) are spelled out. If the text is to be believed, the following statements were made by the God of the Old Testament:

9 "'Anyone who curses their father or mother is to be put to death. Because they have cursed their father or mother, their blood will be on their own head.

We know how well that is enforced, don't we?

But cursing one's parents is not a sex crime. The punishments for the sex crimes follow:

10 "'If a man commits adultery with another man's wife--with the wife of his neighbor--both the adulterer and the adulteress are to be put to death.

 11 "'If a man has sexual relations with his father's wife, he has dishonored his father. Both the man and the woman are to be put to death; their blood will be on their own heads.

 12 "'If a man has sexual relations with his daughter-in-law, both of them are to be put to death. What they have done is a perversion; their blood will be on their own heads.

 13 "'If a man has sexual relations with a man as one does with a woman, both of them have done what is detestable. They are to be put to death; their blood will be on their own heads.

 14 "'If a man marries both a woman and her mother, it is wicked. Both he and they must be burned in the fire, so that no wickedness will be among you.

 15 "'If a man has sexual relations with an animal, he is to be put to death, and you must kill the animal.

 16 "'If a woman approaches an animal to have sexual relations with it, kill both the woman and the animal. They are to be put to death; their blood will be on their own heads.

Okay with all of that? I'm not, but I'm still not seeing any punishment for father-daughter sex. Why in the world might that be? Nor does the long list of sexual prohibitions in Leviticus 18 even mention father-daughter sex. Again why? The law forbids sex between all sorts of relatives, but not between a father and a daughter.

However, there is this catchall at the beginning (at Leviticus 18:6):

"No one is to approach any close relative to have sexual relations. I am the LORD."

So that would definitely include father-daughter sex, but still, the punishment is not listed.

The punishments are not all the same; some are death penalty offenses, some not. Fascinatingly, a man having sexual relations with his daughter-in-law commits a worse crime than a man having sex with his sister, or even his mother, for while the former is considered a "perversion" meriting the death penalty, the latter only merit public removal from the people.

17 "'If a man marries his sister, the daughter of either his father or his mother, and they have sexual relations, it is a disgrace. They are to be publicly removed from their people. He has dishonored his sister and will be held responsible.

 18 "'If a man has sexual relations with a woman during her monthly period, he has exposed the source of her flow, and she has also uncovered it. Both of them are to be cut off from their people.

 19 "'Do not have sexual relations with the sister of either your mother or your father, for that would dishonor a close relative; both of you would be held responsible.

 20 "'If a man has sexual relations with his aunt, he has dishonored his uncle. They will be held responsible; they will die childless.

 21 "'If a man marries his brother's wife, it is an act of impurity; he has dishonored his brother. They will be childless.

 22 "'Keep all my decrees and laws and follow them, so that the land where I am bringing you to live may not vomit you out. 23 You must not live according to the customs of the nations I am going to drive out before you.

Ann Althouse, Eugene Volokh, and PoliPundit all grapple with the question of how incest can be illegal when sodomy cannot.

To which I would add another question. How can sex without a condom be illegal when sodomy cannot?

I don't see why sodomy should be the be-all and end-all. There have long been and there are now lots of sexual restrictions, which come and go largely for cultural reasons. Back in the supposedly uptight Victorian times, respectable men frequented prostitutes, whore houses flourished, and it wasn't a big deal. Nowadays, visiting a prostitute is considered a more serious moral disgrace than it was then, and it can be a very serious crime -- one which can bring the additional charge of money laundering. 

How can sex for money be illegal when sodomy cannot?

In many locales, doctors are not allowed to have sex with adult patients, professors are not allowed to have sex with adult students, and these prohibitions have been applied to opticians, pharmacists and nurses.

How can sex with patients be illegal when sodomy cannot?

Forgive me if I can't find any coherent set of moral rules which would cover all sexual behavior. It wasn't even coherent in Biblical days. And the only sexual offense listed in the Ten Commandments was adultery, which was then defined as a man having sex with a married woman other than his wife.

It seems to me that incest is one of those things which is so rare that most people do not and would not do it. Those who do it, though, are probably not the least bit concerned about the law, so I doubt any law (whether in the form of a modern law or a religious "thou shalt not") would have much effect.

It's interesting that they did not charge the professor's daughter, though, because they were both adults. Another hopeless inconsistent double standard.

Such hopeless inconsistencies are as old as Leviticus.

And if we are to use Leviticus as the measuring stick for morality, I think "we" have clearly been on a slippery slope ever since "we" stopped executing people for cursing their parents.

MORE: From the comments:

how can not having health insurance be illegal?

UPDATE: Many thanks to Glenn Reynolds for the link, and a warm welcome to all.

Comments welcome, agree or disagree.

posted by Eric on 12.13.10 at 04:05 PM


How can sex for money be illegal when sodomy cannot?

If we decide to make it so? It's not written in the stars that the laws we make have to be consistent, fair, or logical.

But in any case sodomy is no longer illegal because the super-legislature called the Supreme Court passed a law to that effect. Prostitution is illegal because a different legislature passed laws making it so. That's really all there is to it.

flenser   ·  December 13, 2010 7:32 PM
How can sex for money be illegal when sodomy cannot?

how can not having health insurance be illegal?

newrouter   ·  December 13, 2010 7:34 PM

Prostitution is illegal because a different legislature passed laws making it so. That's really all there is to it.

State laws? Or federal laws?

There are numerous federal laws subjecting participants in the prostitution industry to prosecution, such as money laundering.

State jurisdiction is grounded in the general police power of the states.

Federal jurisdiction is grounded in the Interstate Commerce Clause. If prostitution within a state is interstate commerce, then so are drugs, so is health care, and so is everything!

Lots of power there, huh?

Eric Scheie   ·  December 13, 2010 9:27 PM

As with other sexual mores/issues I can see where it can be somewhere between wrong and very wrong -- can be, not necessarilly is (for instance imagine she'd been adopted, then met her father as an adult. The situation is completely different.) It's not the sex act itself, (though with a potentially fertile union genetics MUST be taken into account particularly over the long range) but the psychological ties and the pull and sway of parental approval, which still affects adult children, if often in the negative sense.

This is in effect what they're assuming in arresting only the father, not the daughter.
On the other hand there is how this becoming an accepted relationship would mess up mother-daughter relationships. Possibly terminally.Women are VERY competitive and raising a potential rival would twist things.

Still on the third hand (or is it fourth?) I'm not saying it should be illegal. It is against my religion but my religion does no require me to impose it other people (Persuade other people, yeah, but that's different. And even that is not so much an imperative as a "if you're doing it right.")

In fact, I don't like religion and moral legislated (and not just because my religion is a highly negotiated and hard-fought thing.) I don't want other people's religion legislated on me. With my skin color, I need tons of sunlight. A burka would kill me.

I never understood prostitution (or sodomy) being illegal and I'll confess -- though from what I read on blogs that makes me a bad person -- my first reaction to this was "But... why was anyone arrested? They're consenting adults."

On the pure snark level, I'll also confess -- and that too makes me a bad person, probably -- that this has given me a great new source of fun when it comes to snark. I.e. when the boys are wrestling, I can now say "Stop holding your brother down. That's just sick. We're not Columbia Poli-sci professors in this family!" (The way they then spring apart is also fun.)

Yes, yes, I know. I am a BAD person. Good thing that's not illegal.

Sarah   ·  December 14, 2010 8:54 AM

I say keep incest in the family, where it belongs......

Randy   ·  December 14, 2010 9:56 AM

I think there are some relationships where the issue of consent gets totally mucked up. Immediate family is one of them. (And immediate includes anyone raising, raised by or raised with...)

Consanguinity isn't my issue at all - power plays are. I assure you that even at my age, my parents do still exercise some authority over me. (If I say "no" to something, I feel guilty.)

And I'm adopted - no consanguinity there - but even the thought of sex with any of my immediate family feels seriously wrong. The thought of meeting biological family and being attracted only strikes me as "that would be odd, if it happened." So it's definitely the psychological aspect that affects me.

Whether it should be illegal - I simply don't know - but I suspect it should. And IF the facts are as stated (keep in mind that he may be innocent), they arrested the right person.

Kathy Kinsley   ·  December 14, 2010 1:46 PM
How can sex with patients be illegal when sodomy cannot?
Sex between patient and a doctor or nurse is wrong because of the inherent imbalance of power in the relationship, the professional having more power and the patient (having revealed much intimate information in the first few minutes) having less. (AFAIK this is a license-revoking offense in my state, not a crime.) Consensual sodomy between people of equal power isn't the same thing.

And since you asked, the difference between getting punched in the face, and getting sexually assaulted, is that after you get punched in the face, no one asks whether you liked it.

About the guy who had sex with his 24-year-old daughter: does anybody really think that was their first time? that they had a normal, non-abusive father-daughter relationship for 24 years, and then decided to start fucking? Awful hard to believe that story on the face of it.

Don   ·  December 14, 2010 1:56 PM

I just don't think the law would stop it -- as such. It's not that I think it's a good thing -- see above about how it would poison all familial relationships if it became an accepted thing. I just happen to think that social disapproval is a much stronger way of controlling things than the raw force of the government.

Look, on the one hand, it's clear we're a long way from this being accepted. For most of us the reaction is "yuck." On the other hand is our social disapproval enough to keep it from becoming a more common occurrence? I don't know. Is he still going to go on teaching? Is no one going to point out to him that it was depraved and above all ridiculous that he had to seduce his own daughter? Is anyone going to ridicule his masculine ego and point out that the "younger chick" is someone he has an affective hold over? um... yeah. Someone should. Of course, it would be way more painful than throwing him in jail.

Of course, I also think the chances of this becoming widespread are miniscule. Yeah, incest at various degrees has been tolerated at various points in history or even held sacred (Mother/son incest in, I THINK Persia?) but the reason it held a particularly reviled/sacred status is that it is rare and that most of us DO NOT want to do this. In fact, very intensly DO NOT want to do it.

Oh, and I think this professor and his family must have been creating/living in a uniquely messed up environment to begin with. Perhaps it's one of those "There are things so insane it takes the exceedingly well educated to think of doing them."

Sarah   ·  December 14, 2010 2:10 PM

Sarah, I lean more toward prevention than punishment, so if someone is raping a child, I'd rather put him in a humane prison (where he can't move on to raping the GRANDchildren) than humiliate him in public.

I'd change my mind if we had empirical evidence to show that social disapproval worked to stop the pedophile from raping children. Yes it's obvious that it should work, but so much that I thought was obvious, just isn't so.

Don   ·  December 14, 2010 3:17 PM

Sex between patient and a doctor or nurse is wrong because of the inherent imbalance of power in the relationship

I disagree with that, and I do not consider my doctors or nurses to have any more power over me than I do over them. I am a paying customer and I am free to go to (or request) another doctor. I don't think they have any more power over me than a contractor I pay to work on my house or a barber I pay to cut my hair. In fact, don't I have a certain amount of power over them too?

I think that if we start judging sexual morality based on power imbalances, there would be no end to mischief. Does older mean more powerful? How about having more money? Being more intelligent? Being more, um, "upper class"?

Sorry, I don't like this trend of treating adults as less than adults -- as people who need to be taken care of by nanny laws.

Eric Scheie   ·  December 14, 2010 3:39 PM

The Constitution doesn't give the federal government jurisdiction over most criminal matters: that was reserved to the states. The notion that the U.S. Constitution forbids states and localities from enacting and enforcing criminal laws (especially laws that have been on the books since before the adoption of said Constitution) is a new one that may not last.

Gregg the Obscure   ·  December 14, 2010 3:51 PM

Eric, your confidence is to be commended. Others aren't so confident or assertive, particularly if they're physically or mentally ill. There's no debate on the professional ethics of this; no state board that licenses nurses, therapists, or doctors would countenance a sexual relationship between a professional and someone under their care. And I've never worked in a health care institution where it wasn't a firing offense.

Older doesn't mean more powerful by itself, but if one older and one is too young to consent, that's an obvious power imbalance. Same goes for one party being the employee of the other; I know it does happen, but the employer is always wrong, IMHO. The other examples seem as harmless to me as they do to you.

Don   ·  December 14, 2010 3:59 PM

Aside from mental illness or drugging which might negate consent, I see no inherent power imbalance present in physician/patient (or attorney/client) situations. Minors are legally incapable of consent, and that is not what I mean by age differences.

Unless there is some form of coercion (such as a threat or violence or blackmail or firing), I don't think there are imbalances of power between free adults which should give rise to limitations on their freedom to consent. I think it is outrageous for a doctor or nurse to be fired simply because of a relationship with a patient; I read about an optician who was disciplined for meeting up later with a patient who had been fitted with eyeglasses. How on earth does someone who fills eyeglass prescriptions have such power over clients that they should not be allowed to do what they could do with anyone else? The idea that my optician (or, say, my podiatrist) has "power" over me is preposterous. What power is that? My mailman has more power over me than my eye or foot doctor; is that a power imbalance too? Should a mail carrier be fired if one of his customers takes him or her out on a date? I don't think so.

Some people would say that there is an inherent power imbalance between a customer and a prostitute (thus making prostitutes "victims"). I disagree with that too.

Another problem is that in a broad sense, there is always a power imbalance in most sexual attractions -- for the simple reason that one person is more attracted than the other. Thus, the focus of the attraction has more "power." It may be true, but it is not the business of anyone except the people involved.

Eric Scheie   ·  December 14, 2010 4:53 PM

State laws? Or federal laws?

Does it make any difference? But I believe it is state laws for the most part.

Federal jurisdiction (over prostitution) is grounded in the Interstate Commerce Clause.

I was not aware that there were any people in federal prison for prostitution under the Commerce Clause. If there were that would be ridiculous. There are federal laws against sex trafficking (transporting people into the country or across state lines for the purpose of prostitution.)

If prostitution within a state is interstate commerce ...

I've looked up the relevant laws and cannot find anything like what you are describing.

A summary of federal law relating to prostitution is here -

flenser   ·  December 14, 2010 5:43 PM

As to banning the Dr/patient relationship, I would think that's a pragmatic thing because of its near universality and support by all dr. licensing boards I've ever heard of.
Just like they've banned a Dr. from "working" on a family member. On what grounds do they do that?
On the grounds that they've found out it doesn't work well.

I would think they've found out that it's a bad thing in practice so they banned it.

I don't know about say a GP, but I would think it's inherently a bad idea with a therapist (psychological, not physical), you're baring your soul to them, they need to be detached not working up the nerve to ask you out.

I also don't like the idea of a gynecologist using his (or her) position as a dating service. I've never gone to one, but it seems that would creep most women out.
As for pediatricians, well, let's not go there.

Incest laws seem to me to be a pragmatic thing as well.
You have a much better chance of having a baby with serious problems and when infant mortality is around 50%, well, you can't afford to chance making those odds worse if you want to survive as a people.

Those laws universally came about long before the Pill, when contraception was even less reliable than now and abortion was dangerous, illegal or unheard of (by most people).

As for now that we have better contraception? I have a hot 3rd cousin I've always lusted for, but as my uncle said, "3rd cousin's legal, no idiots".

Heinlein makes fun of those laws in Time Enough For Love.
Of course, his character lives about 2,000 years in the future so they have gene charts and can figure out if you're going to have a baby with birth defects, he specifically says that they might approve a brother/sister while denying strangers with absolutely no genetic relationship.

And that right there is a major problem with lots of these thorny issues.
We're not yet at the time and place where bad outcomes are avoidable even as we try to wrestle with these issues.
We're not quite at the time where the protests are all religion-based, they are still genetically based to some degree.

Veeshir   ·  December 14, 2010 6:06 PM

People are WAY overthinking this. If "we the people" feel that it should be against the law for parents to have sex with their children, even their adult children, then we in our capacity as sovereign can make it so. End of story. Arguing about how many angels can dance on the head of pin (or in this case about the the Bible or religion) may be an interesting intellectual exercise, but it's nothing more than that.

flenser   ·  December 14, 2010 6:33 PM

This blog is dedicated to overthinking things, that's one of its allures.

Anonymous   ·  December 14, 2010 8:55 PM

Okay, that was me.

For some reason lately the blog won't remember my info and when I enter my name and "tab" to the next box I go up to the search box instead of the next box. IOW, I don't go from "Name:" to "Email Address:", I go to the from Name to the search box.

I don't think I've changed anything on my computer, but maybe I did.
I use Firefox 5.0, it keeps updating without asking me so maybe one of the updates did something.

Veeshir   ·  December 14, 2010 9:01 PM

Veeshir, an anthropology prof of mine studied some tribal people from the hills near Burma and Thailand. They had the usual incest taboos*, but the way they dealth with cousins who wanted to marry was...agree to change the family history. Seriously, they'd agree on a geneological fiction, so the two young people could have social approval to do what everybody knows they're going to do anyway. No birth defects result; the fear of the genetic consequences of incest is overblown.

*Another interesting twist: in that society it's taboo to marry your mother's sister's kid, or your father's brother's kid. But it's considered especially GOOD to marry your "cross cousin," which would be your mother's brother's child or your father's sister's child.

Don   ·  December 14, 2010 10:48 PM

I was violently physically assaulted on a fairly regular basis during my school days, and I broke my arm once. Plenty of these events were plenty painful and damaging, and it took me several months for my broken arm to heal. But all of them were less upsetting than the occasion on which a drunk man kissed me, or the occasion on which somebody tried to feel me up.

This is completely logical. Any human going about his or her business is going to get hurt on the business limbs. The genitalia are much more vulnerable in every way; so they are protected by both position, custom, and technology.

Anyway, I'm not sure why this blog is arguing this. If there is any universal "Classical Value", it's that Oedipus shouldn't sleep with Jocasta even if he has no way of knowing she's his mom.

Maureen   ·  December 15, 2010 7:21 AM

"It seems to me that incest is one of those things which is so rare that most people do not and would not do it. Those who do it, though, are probably not the least bit concerned about the law, so I doubt any law [or biblical code]... would have much effect."

Yes, most people have an innate aversion to having sex with people raised with them or by them. (Regardless of blood relation; note findings from kibbutzes that their communal child-raising was preventing marriage within the group.) But incest will become somewhat less rare after a few years of its practitioners openly celebrating their "lifestyle" on TV, in books and in marriage chapels.

DWPittelli   ·  December 15, 2010 7:35 AM

What an interesting post.

I think incest laws are a reflection of what society thinks most damaging to it. In times when the family is valued it is recognized that incest is one that most certainly disrupts the trust and harmony it takes to sustain family living.
The news accounts don't reveal who turned in Professor Epstein but I expect it was his wife, the girl's mother, with whom he apparently is no longer living. as to the seemingly odd disparities in how different people define incest, I expect further study would reveal that largely they are accounted for by different living arrangements. Uf you live with matrilineal cousins but not patrilineal ones, for example, sex with the forer but not the latter might be forbidden.

clarice   ·  December 15, 2010 7:50 AM

Let me make this an equation for you

Hillbilly incest = perverted inbreeding

Liberal incest = kul

bandit   ·  December 15, 2010 7:55 AM

but the way they dealth with cousins who wanted to marry was...agree to change the family history. Seriously, they'd agree on a geneological fiction

My grandparents lived in Italy on top of a mountain.
They were coulsins but they paid a priest to make them "not cousins" anymore.
My brother once asked my grandfather about it, he said, "Three brothers, one bike".

Veeshir   ·  December 15, 2010 8:44 AM

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