Penal Code 285 PC - Incest Laws in California
As with every other state, incest is a serious crime in the State of California. The primary reason is that inbreeding between people who are too closely related genetically may result in birth defects.
That said, each state has different parameters as to what constitutes an incestuous relationship. In California, the crime of incest is embodied in Penal Code 285 PC. If convicted of this crime, you could face up to 3 years in prison and fines of up to $10,000.
Further, an incest conviction will carry a requirement to register as a California sex offender as defined in Penal Code 290 PC under a three-tier registration system created by Senate Bill 384.
PC 285 says, “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.”
Simply put, under this law, marriage or sexual relations between close relatives are a felony crime. Of note is that a lack of consent is NOT an element of the crime to be found guilty of violating this statute.
In other words, even if both parties consented to the sexual relationship, they can still be found guilty.
The relatives who can't legally marry or have sex with each other include parents and children, brothers and sisters, half-siblings, grandparents and grandchildren, uncles, aunts, nieces, and nephews. Let's review this state-level law in greater detail below.
What Constitutes Incest in California?
In simplest terms, California defines incest as either marrying or having sexual intercourse with a family member. The specific elements of incest that prosecutors must prove include the following:
- You either married or had sexual intercourse with someone else;
- Both you and the other person were at least 14 years of age at the time; and
- You and the other person were related in a way that state law considers incestuous.
Other things to know about this law:
- For purposes of this law, “sexual intercourse” refers to any penetration of the penis of one person with the genitalia of the other, no matter how slight.
- Other sexual acts between family members are not legally considered incest in the state. The reason is that California law is primarily concerned with genetic inbreeding, which causes a high rate of birth defects. Thus, only sex acts that could result in pregnancy are considered incest.
- Incest is only defined as occurring between relatives aged 14 or older. If one or both parties are under the age of 14 at the time, it likely falls under a different sex crime than incest, such as Penal Code 261.5 PC statutory rape or Penal Code 288 PC lewd acts on a minor under 14.
- Incest is a criminal offense even if both parties consent to the relationship.
- Being married in an incestuous relationship still counts as incest, even if no sex occurs. By state law, the marriage ceremony between incestuous relationships is treated the same as sexual intercourse.
- A related crime includes Penal Code 281 PC bigamy law that makes it a crime to marry a person while you are still married to someone else. The penalties for bigamy are listed under Penal Code 283 PC.
- Another related crime includes Penal Code 284 PC marrying the husband or wife of another person.
Which Relationships Are Considered Incestuous?
Each state has different parameters for what constitutes an incestuous relationship based on factors such as morality, genetic similarity, etc.
The State of California is primarily concerned with sexual relations between people who are closely related genetically. For that reason, state law identifies sex between any of the following relatives to be incestuous:
- Parent and child;
- Grandparent and grandchild;
- Great-grandparent and great-grandchild;
- Brother and sister;
- Half-brother and half-sister;
- Uncle and niece;
- Aunt and nephew.
Which Relationships are NOT Considered Incestuous?
While some of the relationships listed below may be considered incestuous in other states for various reasons, they are far enough apart genetically not to be considered incest in California. These include:
- First cousins;
- Stepparents and stepchildren;
- Step-brothers and step-sisters, as opposed to half-siblings, which are still related by blood;
- Half-uncle and half-niece;
- Half-aunt and half-nephew;
- Adopted siblings.
What Are the Penalties for Incest?
Incest is a felony offense in California. If convicted, you could face the following:
- Sixteen months, two or three years in state prison;
- A fine of up to $10,000;
- Required registration as a Tier 2 offender on California's sex offender registry must be renewed each year or each time you move for the next 20 years.
What Are the Defenses for PC 285?
While being charged with incest in California is a serious matter, there are still legal defenses that a good defense attorney can employ to combat the charges. These are discussed below.
Perhaps we can argue that you did not know you were related. While rare, it sometimes happens that two people engage in an incestuous relationship without knowing they are related to the other person.
For example, suppose spouses separate, remarry, lose touch, and have other children in their subsequent marriages. In that case, you could inadvertently marry someone who turns out to be your half-brother or half-sister.
If your attorney can demonstrate a lack of knowledge that you were related to, you might be able to have the charge of incest dropped.
Perhaps we can argue that you were under the age of 18 at the time the relationship began, and the other person was an adult.
While this is still technically incest, California law places less responsibility on the minor in such relationships and more responsibility on the adult. If you were under 18 when the incest started, the prosecutor might be willing to drop charges.
Perhaps we can argue that you were falsely accused. It's not uncommon for estranged spouses, family members, or others to accuse their ex-partner of having incest with another family member, typically out of spite or revenge.
Fortunately, these false accusations can often be defended against because there's usually no supporting evidence—only a he-said-she-said scenario—so a good attorney can generally cast reasonable doubt on those accusations.
Contact our California criminal defense lawyers by phone for a case evaluation, or use the contact form. Eisner Gorin LLP is based in Los Angeles, CA.