Incest between consenting adults: a case for decriminalisation?

Abstract

Consent plays a key role in most sexual offences. For example, the presence of consent removes any criminal liability for an offence such as rape or sexual assault. In contrast, sexual activity between adult family members (see Sexual Offences Act 2003, ss. 64-65) is a criminal offence regardless of whether it takes place with or without the consent of both parties. This reflects a tension that exists within the criminal law. Generally, the criminal law is based upon the respect for the autonomy of the individual in its reflection of the traditional liberal account. The criminal law is also based upon harm and where an activity is presumed to be harmful (even when consensual) it is unlawful. In terms of sexual activity between adult family members, there are concerns that gendered family power dynamics and childhood abusive, grooming, or coercive behaviours may limit freedom of choice to consent, and that such relationships are, even if consensual, harmful to the family and institution of the family. This thesis aims to resolve the tension between autonomy and harm to protect the former removing the protection of the criminal law from those that are considered vulnerable. To do so, I argue that the criminal law ought to employ a relational approach to autonomy. The criminalisation of consensual sexual activity between adult family members has been justified on eight grounds. I analyse them to determine whether they enunciate any form of doctrine or are they just “scattered words”. A relational approach to autonomy focuses upon the constructiveness or destructiveness of a relationship between two (or more) people by allowing the relationship to be seen within its proper context (rather than on time specific circumstances at the time or shortly before an activity takes place). A relational approach employs a “deeper examination” (rather than “face value”) into this context which strengthens my argument that a relational approach can resolve the tension within the criminal law. I analyse whether a relational approach to autonomy is reflected in the current law relating to the sex with an adult relative provisions.