Incest—defined as marriage or sexual relations between close relatives—is a felony in California.1
The types of relatives who may not marry or have sex with each other under Penal Code 285 PC, California's incest law, are:
- Parents and children;
- Grandparents and grandchildren, or anyone else with an ancestor-descendant relationship (like great-grandparents and their great-grandchildren);
- Half-siblings; and
- Uncles/aunts and nieces/nephews.2
Unlike with many other California sex crimes, lack of consent is not an element of Penal Code 285 incest. In other words, you can be guilty of this offense even if both parties to the sexual relationship consented.3
Here are some examples of situations that could lead to charges under PC 285, California's law against incest:
- A 55-year-old man has sex with his 16-year-old granddaughter;
- A half-brother and –sister, both in their thirties, get married; and
- A 45-year-old woman has sex with her 22-year-old nephew.
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.
You should not try to face California incest charges alone. A skilled California 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.
In order to help you better understand the California crime of incest, our California criminal defense attorneys will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
The legal definition of incest under Penal Code 285 consists of the following facts:
- You had sexual intercourse with (or, in rare cases, got married to) another person;
- When this occurred, you were at least fourteen (14) years old;
- When this occurred, the other person was at least fourteen (14) years old; AND
- You and the other person are related to each other in any of the following ways:
- Parent and child,
- Grandparent and grandchild,
- Great-grandparent and great-grandchild,
- Brother and sister,
- Half-brother and half-sister,
- Uncle and niece, or
- Aunt and nephew.9
These facts are the so-called “elements of the crime of incest”—that is, the facts that the prosecutor must prove in order for you be guilty under California incest law.
Let's take a better look at these elements to get a better sense of what they mean.
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 sex.
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 288a oral copulation by force or fear.12)
The reason that only sexual intercourse is considered incest in California is because 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.
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:
- 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
Incest is a felony in California law.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
- every year, within five (5) working days of your birthday, and
- 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
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.
California sex crimes that are similar to—or may be charged instead of—PC 285 incest include:
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
California bigamy is the crime of marrying 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
Continuous sexual abuse of a child under Penal Code 288.5 PC may be charged when someone:
- Lives with or otherwise has continuous access to a child under the age of fourteen (14); and
- 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.
Call us for help…
For questions about the crime of Penal Code 285 incest in California, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on Nevada incest laws, please see our page on Nevada incest laws.
1 Penal Code 285 PC – Incest. (“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.”)
2 Family Code 2200 – Family relationship defined for California incest law. (“Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate.”)
3 Penal Code 285 PC – Incest, endnote 1, above.
4 Penal Code 261.5 PC – Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties [compare to California incest law]. ("(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age.")
Penal Code 288a PC – Oral copulation with a minor [compare to California incest law]. (“(a) Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. (b) (1) Except as provided in Section 288, any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. (2) Except as provided in Section 288, any person over 21 years of age who participates in an act of oral copulation with another person who is under 16 years of age is guilty of a felony. (c) (1) Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years.”)
5 Penal Code 285 PC – Incest, endnote 1, above.
See also Penal Code 18 PC. (“(a) Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.”)
See also Penal Code 672 PC. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed [such as California incest], the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”)
6 Penal Code 290 PC – Sex Offender Registration Act. (“(a) Sections 290 to 290.024, inclusive, shall be known and may be cited as the Sex Offender Registration Act. All references to “the Act” in those sections are to the Sex Offender Registration Act. (b) Every person described in subdivision (c), ... while residing in California, or while attending school or working in California, as described in Sections 290.002 and 290.01, shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department, and, additionally, with the chief of police of a campus of the University of California, the California State University, or community college if he or she is residing upon the campus or in any of its facilities, within five working days of coming into, or changing his or her residence within, any city, county, or city and county, or campus in which he or she temporarily resides, and shall be required to register thereafter in accordance with the Act. (c) The following persons shall be required to register: Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of . . . Section . . . 285 [incest] . . . .”)
7 California Penal Code 290.018 PC – Penalties for [failure to register as a sex offender]. (“(b) Except as provided in subdivisions (f), (h), and (j), any person who is required to register under the act based on a felony conviction [such as a conviction for incest] or juvenile adjudication who willfully violates any requirement of the act or who has a prior conviction or juvenile adjudication for the offense of failing to register under the act and who subsequently and willfully violates any requirement of the act is guilty of a felony and shall be punished by imprisonment in the state prison for 16 months, or two or three years.”)
8 See People v. Tobias (2001) 25 Cal.4th 327, 329. (“We conclude that a child under 18 who has an incestuous sexual relationship with an adult is a victim, not a perpetrator, of the incest, and this conclusion remains valid even when the child consents to the sex. In short, the law puts the burden on the adult, not the minor child, to refrain from a sexual relationship.”)
9 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 1180 – Incest (Pen. Code, § 285). (“The defendant is charged [in Count ] with incest [in violation of Penal Code section 285]. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant had sexual intercourse with another person; 2. When the defendant did so, (he/she) was at least 14 years old; 3. When the defendant did so, the other person was at least 14 years old; AND 4. The defendant and the other person are related to each other as (parent and child/[great-]grandparent and [great-]grandchild/[half] brother and [half] sister/uncle and niece/aunt and nephew).”)
11 CALCRIM 1180 – Incest (Pen. Code, § 285). (“Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]”)
12 Penal Code 288a PC – Oral copulation by force or fear [compare to California incest law]. (“(c) . . . (2) (A) Any person who commits an act of oral copulation when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years. (B) Any person who commits an act of oral copulation upon a person who is under 14 years of age, when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years. . . . (i) Any person who commits an act of oral copulation, where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.”)
13 See, e.g., Tracy Clark-Flory, The law on “consensual” incest, Salon, Dec. 10, 2010.
14 CALCRIM 1180 – Incest (Pen. Code, § 285), endnote 9, above.
15 Penal Code 261.5 PC – Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties [compare to California incest law], endnote 4, above.
See also Penal Code 261.5 PC -- Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties [compare to California incest law]. (“(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor. (c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. (d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.”)
16 Penal Code 288 PC -- Lewd acts with a minor [compare to penalties for incest]. ("(a) Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”)
17 Penal Code 288.5 PC – Continuous sexual abuse of a child [may be charged instead of Penal Code 285 incest]. (“(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.”)
18 CALCRIM 1180 – Incest (Pen. Code, § 285), endnote 9, above.
19 People v. Russell (1971) 22 Cal.App.3d 330, 335. (“The inescapable conclusion to be drawn from the Koller and Hamilton cases, that the conclusive presumption of legitimacy applies to criminal prosecutions [such as those for California incest], accurately reflects the law of this state.  The "so-called conclusive presumption is really not a presumption but rather a rule of substantive law" (Jackson v. Jackson, 67 Cal. 2d 245, 247 [60 Cal.Rptr. 649, 430 P.2d 289]) and was adopted by the Legislature to preserve the integrity of the family and to avoid the social stigma associated with illegitimacy. (Estate of McNamara, 181 Cal. 82 [183 P. 552, 7 A.L.R. 313].)  If the presumption is founded on salutary public policy, and if it is in reality a rule of substantive law, it follows that Penal Code section 285 not only proscribes sexual intercourse between persons actually related by the prohibited blood lines, but also proscribes sexual intercourse between persons the law deems to be so related.”)
20 Based on the facts of the same.
21 Penal Code 285 PC – Incest, endnote 1, above.
23 Penal Code 290 PC – Sex Offender Registration Act [applies to convictions for incest under PC 285], endnote 6, above.
24 See same.
25 California Penal Code 290.018 PC – Penalties for [failure to register as a sex offender, including after an incest conviction], endnote 7, above.
26 People v. Tobias, endnote 8, above.
27 Same, at 335. (“We recognize that, in some cases, the minor may actually initiate and encourage the incestuous sexual relationship. Several psychological and emotional conditions might explain this behavior, including the possibility that the minor has been neglected by his or her family and enjoys the closeness and increased attention associated with the sexual conduct. But regardless of who initiates the sexual relationship, the minor remains the victim, and therefore immune from criminal liability [for incest] under Mena, supra, 206 Cal. App. 3d 420, unless it can be said that the minor actually raped the adult and thus the adult had no criminal culpability whatsoever.”)
28 San Bernardino criminal defense attorney Michael Scafiddi is a former police officer with the Banning and Ontario police departments. As a result, he is well-known in the law enforcement community throughout the Inland Empire. He knows how to work with prosecutors and judges to get the fairest deals for his criminal defense clients in cases ranging from DUI to incest to assault.
29 CALCRIM 1180 – Incest (Pen. Code, § 285), Related Issues. (“Lack of Knowledge as Defense No reported cases have held that lack of knowledge of the prohibited relationship is a defense to incest. (But see People v. Patterson (1894) 102 Cal. 239, 242–243 [36 P. 436] [dictum that party without knowledge of relationship would not be guilty]; see also People v. Vogel (1956) 46 Cal.2d 798, 801, 805 [299 P.2d 850] [good faith belief is defense to bigamy].)”)
30 Penal Code 261.5 PC – Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties [compare to California incest law], endnote 4, above.
31 Penal Code 261.5 PC -- Unlawful sexual intercourse with person under 18; age of perpetrator; civil penalties [compare to California incest law], endnote 15, above.
32 Penal Code 281 PC – Bigamy [compare to incest law in California]. (“(a) Every person having a husband or wife living, who marries any other person, except in the cases specified in Section 282, is guilty of bigamy. (b) Upon a trial for bigamy, it is not necessary to prove either of the marriages by the register, certificate, or other record evidence thereof, but the marriages may be proved by evidence which is admissible to prove a marriage in other cases; and when the second marriage took place out of this state, proof of that fact, accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge.”)
33 Penal Code 283 PC – Bigamy; punishment [compare to penalties for Penal Code 285 PC incest]. (“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.”)
See also Penal Code 284 PC. (“Every person who knowingly and willfully marries the husband or wife of another, in any case in which such husband or wife would be punishable under the provisions of this chapter, is punishable by fine not less than five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170.”)
34 Penal Code 288.5 PC – Continuous sexual abuse of a child [may be charged instead of Penal Code 285 incest], endnote 17, above.