Penal Code § 285 PC – Incest – California Law & Penalties

Penal Code § 285 PC is the California law that prohibits incest. Under this section, marriage or sexual relations between close relatives is a felony punishable by up to 3 years in jail and fines of up to $10,000.

The language of the statute reads that:

285. 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.

The types of relatives who may not legally marry or have sex with each other are:

1. Parents and children;
2. Grandparents and grandchildren, or anyone else with an ancestor-descendant relationship (like great-grandparents and their great-grandchildren);
3. Siblings;
4. Half-siblings; and
5. Uncles/aunts and nieces/nephews. ^{1 2}

Unlike with many other California sex crimes, lack of consent is not an element of the crime. In other words, you can be guilty of this offense even if both parties to the sexual relationship consented.³

(In this way, incest resembles sex crimes such as Penal Code 261.5 PC statutory rape and Penal Code 287 PC oral copulation with a minor.⁴)

Examples

• A 55-year-old man performs a sexual act with his 16-year-old granddaughter;
• A half-brother and –sister, both in their thirties, get married; and
• A 45-year-old woman has sexual contact with her 22-year-old nephew.

Penalties

Incest in California carries the following penalties:

• A state prison sentence of sixteen (16) months, two (2) years or three (3) years; and/or
• A fine of up to ten thousand dollars ($10,000).⁵

Not only that, but a conviction for incest will make you subject to California’s sex offender registration requirement.⁶

This means that if you are convicted under Penal Code 285, you must register with the state as a “tier two” offender every year for at least twenty (20) years—or else face additional felony charges for failure to register as a sex offender.⁷

Note that California Senate Bill 384 recently created a three-tier registration system. Prior to this system, incest carried lifetime registration.

Legal defenses

You should not try to face California incest charges alone. A skilled criminal defense attorney can help you avoid the harsh penalties for this offense, possibly by using one of the following common legal defenses:

• You were a minor when the incestuous activity took place;⁸
• You did not know that you and the other person were related; and/or
• You have been falsely accused.

To help you better understand the law, our California criminal defense attorneys will address the following:

• 1. How does California law define incest?
• 2. What are the penalties?
• 3. Are there defenses to an incest charge?
• 4. Are there related offenses?
  • 4.1. Penal Code 261.5 statutory rape
  • 4.2. Penal Code 281 & 283 bigamy
  • 4.3. Penal Code 288.5 continuous sexual abuse of a child under 14

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. How does California law define incest?

The legal definition of incest under PC 285 consists of the following facts:

1. You had sexual intercourse with (or, in rare cases, got married to) another person;
2. When this occurred, you were at least fourteen (14) years old;
3. When this occurred, the other person was at least fourteen (14) years old; AND
4. You and the other person are related to each other in any of the following ways:
   1. Parent and child,
   2. Grandparent and grandchild,
   3. Great-grandparent and great-grandchild,
   4. Brother and sister,
   5. Half-brother and half-sister,
   6. Uncle and niece, or
   7. Aunt and nephew.⁹

These facts are the “elements of the crime of incest”—that is, the facts that the prosecutor must prove in order for you to be guilty under California incest law.

Let’s take a look at these elements to get a better sense of what they mean.

Sexual intercourse

You violate California’s incest law when you engage in sexual intercourse with a family member.¹⁰

Sexual intercourse means any penetration—no matter how slight—of the vagina or genitalia by the penis. Ejaculation/orgasm is not required.¹¹

Note that only sexual intercourse is criminalized by California’s law on incest. Other forms of sexual activity are not.

Example: Michael and Madison are twins in their early twenties. The two have had an unusually close and intense relationship since they were children.

One night when both of them are drunk, Michael and Madison “hook up”—and end up engaging in oral copulation.

Because they did not engage in sexual intercourse, Michael and Madison have not violated California’s incest law.

(But if the oral sex had not been consensual, or one of the twins had taken advantage of the other’s intoxication, then one of them could be charged with Penal Code 287 oral copulation by force or fear.¹²)

The reason that only sexual intercourse is considered incest in California is that incest laws were written in part to prevent inbreeding between relatives—which can lead to birth defects.¹³ Thus, only sex that can lead to pregnancy is treated as criminal behavior.

Both parties over 14 years old

California incest law only applies to sex between relatives who are both at least fourteen (14) years old.¹⁴

But this does not mean it is not a crime to engage in sexual intercourse with a relative who is 13 or younger. Someone who did so would probably be charged with another crime, such as:

• Penal Code 261.5 statutory rape—which can carry similar penalties to incest,¹⁵
• Penal Code 288 lewd acts on a minor under 14 —which carries a longer prison sentence than Penal Code 285 incest,¹⁶ and/or
• Penal Code 288.5 continuous sexual abuse of a child.¹⁷

Example: Shawn, who is in his early thirties, has two nieces—Tanya, who is 18, and Andrea, who is 13.

During a summer when Shawn lives with Tanya and Andrea’s family, he has sex with both of them.

Shawn’s sexual relationship with Tanya is the crime of incest under Penal Code 285.

His relationship with Andrea is not incest under Penal Code 285. But it MAY lead to more severe criminal charges, such as lewd acts with a minor under 14.

Family relationship

Finally, a relationship is only considered incestuous in California if it involves people who have one of a defined list of family relationships: parent/child, ancestor/descendant, siblings, half-siblings, uncle/niece, or aunt/nephew.¹⁸

This means that it will not be considered the crime of California incest if, for example, the following people have sex:

• First Cousins,
• Adopted siblings,
• Stepparents and stepchildren,
• Stepsiblings, or
• A half-uncle and his half-niece, or a half-aunt and her half-nephew.

Sometimes there are disputes as to whether or not two people really are related in a way that’s required for a sexual relationship to be incestuous. For purposes of these disputes, it is assumed that a person’s father is the man that his/her mother was married to at the time s/he was conceived.¹⁹

Example: Charles is accused of incest for having sex with Nicole, who is the daughter of his sister Becky.

Charles’ defense is that he and Becky actually have different fathers. This would mean that Nicole is only his half-niece—someone with whom he can’t commit criminal incest.

The basis for Charles’ defense is this: at the time he was conceived, his and Becky’s mother was known to be sleeping with men other than her husband (who is certainly Becky’s father).

But because Charles and Becky’s mother was married to Becky’s father at the time Charles was conceived, it is presumed that that man is Charles’ father too, absent hard evidence to the contrary.

Thus, Charles is guilty of incest for having sex with Nicole, who is presumed to be his full niece.²⁰

2. What are the penalties?

Incest is a felony under PC 285.²¹ The potential penalties include:

• Felony (formal) probation;
• Sixteen (16) months, two (2) years or three (3) years in California state prison; and/or
• A fine of up to ten thousand dollars ($10,000).²²

AND a California incest conviction will also subject you to California’s sex offender registration requirement—which can apply even to nonviolent, consensual sex acts like incest. People convicted of incest are tier two offenders with a mandatory registration requirement of at least twenty (20) years.²³

This means that you will be required to register with the police of the city or county where you live. This registration has to be renewed

1. every year, within five (5) working days of your birthday, and
2. every time you move to a new residence.²⁴

If you fail to meet this requirement, you will be charged with the felony offense of failing to register as a sex offender.²⁵

3. Are there defenses to an incest charge?

Facing California incest charges can be a devastating experience.

But it doesn’t have to be. With the help of a good criminal defense lawyer, you may be able to convince the prosecutor to drop or reverse the charges—or convince the jury at a California jury trial to find you not guilty.

Legal defenses that may help your case could include:

You were a minor when the alleged incest occurred

Under California law, you are not guilty of incest if both of the following are true:

• You were under eighteen (18) when the incestuous sex occurred, and
• The person with whom you are supposed to have committed incest was an adult.²⁶

This is true even if you (the minor) initiated the sexual relationship.²⁷

And according to San Bernardino criminal defense attorney Michael Scafiddi²⁸:

“Many incest cases involve sexual relationships that continue for years. If you are accused of incest for a sexual relationship that began while you were still a minor—even if it continued after you turned 18—there’s a good chance the prosecutor will be willing to drop the charges. This is because California law on this point assumes that there should be less responsibility assigned to minors who get involved in incestuous relationships.”

You did not know you were related to the other person

If you can show that you did not know you were related to your alleged sexual partner, you are probably not guilty of incest (though California law is not 100% clear on this point).²⁹

While this may seem far-fetched, it CAN happen—particularly in large, blended families, or in immigrant families whose birth records might be unavailable because they are located in a foreign country.

You were falsely accused

If you are accused of incest, there is likely testimony by a former or current sexual partner, or a family member, involved in the accusations.

That person may well have a motivation to accuse you falsely—jealousy, revenge, etc.

And because Penal Code 285 incest can be charged in cases of consensual sex, there is often no violence involved in the accusations—and thus no physical or forensic evidence.

This means that many incest cases come down to “he said/she said” accusations. Unless the jury believes beyond a reasonable doubt that your accuser is telling the truth and you are lying, you should be found not guilty.

4. Are there related offenses?

California sex crimes that are similar to—or can be charged instead of—PC 285 incest include:

4.1. Penal Code 261.5 statutory rape

Penal Code 261.5 statutory rape is similar to Penal Code 285 California incest in that it is a crime that is charged as a result of consensual sex.

The difference is that statutory rape is consensual sex with someone who is a minor rather than someone who is a relative.³⁰

If you are accused of—for example—having consensual sex with your stepchild, stepsibling, or cousin while s/he is under 18, you will be charged with statutory rape rather than incest.

Also, because California incest law only applies where both sexual partners are 14 or over, you may be charged with statutory rape instead if you have consensual sex with a relative who is under 14.

The penalties for statutory rape depend on the relative ages of the defendant and the “victim.” The crime is:

• A misdemeanor with a maximum jail sentence of six (6) months if the age difference is three (3) years or less;
• A wobbler (a crime that can be charged as a misdemeanor OR a felony) with a maximum jail sentence of three (3) years if the defendant is more than 3 years older than the “victim”; and
• A wobbler with a maximum jail sentence of four (4) years if the defendant is older than 21 and the “victim” is under 16.³¹

4.2. Penal Code 281 & 283 bigamy

Under Penal Code 281 PC, California bigamy law makes it a crime to marry one person while you are still married to another person.³²

Like California incest, it is a sex/marriage crime that can be committed by two consenting adults.

And as with incest, the penalties for bigamy are surprisingly harsh. The offense is a wobbler, with a maximum felony state prison sentence of three (3) years.³³

4.3. Penal Code 288.5 continuous sexual abuse of a child under 14

Continuous sexual abuse of a child under Penal Code 288.5 PC may be charged when someone:

1. Lives with or otherwise has continuous access to a child under the age of fourteen (14); and
2. Over the course of three (3) months or longer, commits with the child three (3) or more acts of substantial sexual conduct or lewd acts.³⁴

PC 288.5 is considered a more serious offense than incest. The potential state prison sentence ranges from six (6) to sixteen (16) years.³⁵

An incestuous relationship with a relative younger than 14 (say, a 13-year-old niece) could lead to charges under this statute instead.

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