California "Incest" Laws
Penal Code 285

Similar to California crimes involving sexual assault and crimes against public decency and good morals, a Penal Code 285 incest may lead to serious criminal charges, a blackened criminal record, and potential "hard" time in county jail and/or even state prison.

Fortunately for you, our California criminal defense lawyers are battle-tested when it comes to handling cases related to sex crimes, and may successfully negotiate serious bigamy and/or incest charges down to minor offenses or even full dismissals. For a brief overview of California incest law and how we can help, keep reading below.

Definition of incest in Califonia

The legal definition of the crime of "incest" in California is actually borrowed from the California Family Code § 2200.  Essentially, this means that incest occurs in California whenever there are sexual relations between parents and children (including ancestors and descendants of every degree i.e. grandparents and grandchildren) OR between brothers and sisters (including HALF blood siblings and/or cousins) OR between uncles/aunts and nieces/nephews.

The purpose of Penal Code 285 incest laws is to discourage inbreeding, which leads to a greater chance of birth defects. It also has a purpose in protecting the integrity of the family unit and protecting persons who may not be in a position to freely consent to a sexual relationship.

Significantly, unlike many other sex-related crimes in California, consent between adults is not a defense to incest and/or bigamy. Incest and bigamy is illegal even if the two people involved are consenting adults!

Defenses

It may be possible to get an incest charge dismissed if your attorney can show that your situation falls outside the realm of prohibited acts. The following are some possible defenses:

  • Not an Adult: A child under 18 who has an incestuous sexual relationship with an adult is a victim, not a perpetrator, of the incest, even though the child consents to the sex. California incest law puts the burden on the adult, not the minor child, to refrain from a sexual relationship. Therefore, a child in this situation could almost never be found guilty. See People v. Tobias (2001) 25 Cal 4th 327, 106 Cal Rptr 2d 80, 21 P3d 758, 2001 Cal LEXIS 2607

  • Knowledge (or lack thereof?): Although an individual may very well have entered into an incestuous relationship as defined in Cal. Fam. Code § 2200, if that individual lacked knowledge of the actual existence and/or degree of (blood) relations and/or marital status of another prior to sexual intercourse, he or she may be found not guilty. See People v. MacDonald (1938, Cal App) 24 Cal App 2d 702, 76 P2d 121, 1938 Cal App LEXIS 977.

  • Out-of-State Activity: Where an incestuous marriage takes place in a state outside of California, with the intention of marrying being formed in California and with cohabitation between the couple continuing in California, the couple may be found not guilty of incest so long as the couple does not commit any overt acts in furtherance and/or in connection with the incestuous marriage.

  • No relations. It's common for people who are close to refer to themselves as cousins, siblings or other blood relatives when they are in fact not. Or perhaps one of the parties in an incest case was actually adopted or born to someone outside of the family (note the term "incest" in California does not apply to sexual acts, not amounting to sexual intercourse, performed by a stepparent on a stepchild). Either way if your attorney can show that you are not in fact blood related to the other party or that you are distant family (such as second cousins or more), then the case may be dismissed.

  • No marriage. Incest law also prohibits closely related people from getting married. If your attorney can show that you may have held yourselves out as man and wife but didn't legally get married, then the prosecution's case is significantly weakened. California Penal Code 282 expands upon these loophole "exceptions" by stating that Section 281 does not extend to: 1) any person whose husband or wife from a former marriage had been absent for five straight years and without knowing for sure whether that person is alive or not and 2) any person by reason of any former marriage which has been pronounced void, annulled, or dissolved by the judgment of a competent court.
Penalties

California Penal Code 283 states that bigamy is punishable by a fine not exceeding ten thousand dollars ($10,000) or by imprisonment in a county jail not exceeding one year or in the state prison for possibly 16 months, or 2 or 3 years.

California Penal Code 284 covers someone marrying the husband or wife of another and it states that every person who knowingly and willfully marries the husband or wife of another is punishable by fine not less than five thousand dollars ($5,000), or by imprisonment in county jail for 16 months, or two or three years.

California Penal Code 284 covers punishment for incest and states that persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void (look to above discussion concerning California Family Code § 2200), 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 for 16 months, or two or three years.

Obviously, the idea of possible county jail and/or prison time for incest and/or bigamy is scary to say the least. That is why one should do everything they can to make sure they get all of the "positive" factors/facts about their case raised before a Judge in any potential sentencing scenario. This is especially true in light of the fact that in determining the final sentence for a crime related to incest, a California judge may consider any of the following:

  • prior criminal history of the defendant (with a focus on any prior sexual misconduct)
  • the degree of blood shared between the individual involved in sexual intercourse (half vs. full)
  • whether the parties are both adults (over 18), both children, or one of each, and
  • whether the marriage and/or sexual intercourse was consensual.
Call us for help.
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If you or loved one is charged with Penal Code 285 incest and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

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