Contemporary Issues in - SSRN papers

Contemporary Issues in

LAW Volume 10 Issue 2

ISSN 1357–0374

GENDERED VIOLENCE

LAWTEXT PUBLISHING

Electronic copy available at: http://ssrn.com/abstract=1720865

CONTENTS

LAWTEXT

CONTEMPORARY ISSUES IN LAW

PUBLISHING

VOLUME 10 ISSUE 2

CONTEMPORARY ISSUES IN LAW ISSN 1357–0374 Volume 10 – 4 Issues £100.00 plus £6.00 airmail post outside Europe

Published by Lawtext Publishing Limited – www.lawtext.com

GENDERED VIOLENCE

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FORCED MARRIGAE AND THE STATE AS PARENT Zia Akhtar, Barrister, Phd Candidate, Manchester Metropolitan University

The review may be cited as VOL 10 CIL 000 Contemporary Issues in Law is published by Lawtext Publishing Limited © 2010 Lawtext Publishing Limited All rights reserved. Any UK statutory material in this material in this publication is acknowledged as Crown Copyright.

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The criminalisation of forced marriages under the Civil Marriages (Protection) Act 2007 has the clear definition of woman as the victim. This will make the state guardian of the wife, who it infers has been pressed into marriage by her parents. It has the potential to divide the family as a unit by coming in a package of reform that deems gender differentiation of primary concern in subcontinental Asian culture. There will be repercussions on the kinsgroup of the husband who could be held responsible as aiders and abetters of the principal party in the crime. The offence will have a wide ambit and will override the ordinary rules of evidence allowing hearsay to be admissible. It will empower agencies to act as intermediaries on behalf of the women, whose testimony would be accepted by the courts. This will be to the detriment of the accused and could cause miscarriages of justice because of ethnocentric stereotyping, and by the denial of cultural defence in the case of honour killings. The outcome will be confrontation rather than mediation, and judges will be barred from consideration of the codes of conduct in minority affairs that has been applied in the US. In promoting this agenda, the British government has ignored the lessons of native Americans minors who were declared wards of state and who after childhood suffered psychological damage. There is a need to challenge the notion that the state is a good parent, and to end the interference of the UK government in the life patterns of oriental peoples in the name of multiculturalism.

Production Editor: Paula Clifford Publisher: Nicholas Gingell Typeset by Walker Cook, Hinton-in-the-Hedges, Northants Printed and bound in the United Kingdom by Information Press, Oxon

CHILLING DEATHS UNDER THE GUISE OF CULTURE AND TRADITYION: A CRITICAL STUDY OF ATROCITIES AGAINST WOMEN IN MODERN INDIA 99

Whilst every effort has been made to ensure that the information contained in this publication is correct, neither the editors and contributors nor Lawtext Publishing Limited can accept any responsibility for any errors or omissions, nor for any consequences that may result. Lawtext Publishing Limited takes no responsibility for the accuracy of the URLs of external websites given in this publication nor for the accuracy or relevance of their content.

Sati (the rite of immolating a widow in her husband's funeral pyre) and dowry deaths are manifestations of the Indian concept of pativrta: the virtuous woman who has no existence apart from that of her husband. In India, widowed women are still made to wear white dresses in many homes, as they are made to shun all enjoyment and pleasure and stay away from social life. Dowry death occurs when a married girl (bride) is burnt to death or killed or tortured by her in-laws and hus-

Nehaluddin Ahmad, Associate Professor of Law, Sultan Sharif Ali Islamic University, Brunei Darussalam and Adjunct Associate Professor, Multimedia University, Malaysia

Electronic copy available at: http://ssrn.com/abstract=1720865

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Contemporary Issues in Law

band for not providing sufficient gifts or money to their in-laws by her parents. On an average one Indian woman dies every four hours over a dowry dispute, despite a series of laws to empower them.

Sex-selective abortion is another indirect form of violence against women. Estimates indicate that several million female foetuses were aborted in the last two decades. While sons offer security in old age and can perform the rites for the souls of deceased parents and ancestors, daughters are perceived as a social and economic burden. This article will discuss the magnitude, socio-cultural and legal tangle of some of the most common and severe forms of violence against women: sati; dowry; and sex-selective abortion. The article further explores the reality of life and death for women in modern India, which is both enlightening and terrifying. CRITICAL PERSPECTIVES ON THE POLICING AND CRIME ACT 2009: AN UNETHICAL APPROACH TO THE REGUALTION OF PROSTITUTION Anne Carline, Law Lecturer, School of Law, Liverpool John Moores University

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This article will provide a critical analysis of the recent reforms relating to prostitution as contained in the Policing and Crime Act 2009. The provisions introduced by this Act have significantly increased the State’s regulation and criminalisation of prostitution and the justifications for two sections in particular will be evaluated: section 14, which criminalises purchasing sexual services from a prostitute subject to exploitation; and section 21 which introduces closures orders for premises used for ‘prostitute related offences’. In order to evaluate the stated justifications the article will provide a close and critical reading of the relevant governmental consultations and the parliamentary debates. It will be argued that throughout the reform process that the Government drew upon a radical feminist perspective in order to justify increased regulation and criminalisation. Prostitution is invariably constructed as amounting to violence against women and as a practice that the vast majority of women are coerced or forced into.

The article will, however, contend that the approach adopted by the Government is unethical. It will be argued that whilst a radical feminist perspective appears to be adopted by the Government, on a closer reading it can be seen that an un-debated moral agenda is behind the reforms. To this end it will be argued that the Government unethically draws upon the vulnerability of sex workers in order to promote reforms which are more concerned with morality as opposed to protecting sex workers from violence. In contrast to the approach adopted by the Government, the article will argue that Judith Butler’s approach to ethics, vulnerability and her notion of liveable lives, provides a more inclusive and ethical theoretical framework upon which to premise the regulation of prostitution.

Contents

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JUDMENT CRITIQUE OF THE CASE NAZ FOUNDATION v GOVERNMENT OF NCT OF DEHLI Umang Joshi, Amity Law School, Delhi, Student, 4th Semester.

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This paper examines the judgment on the Constitutional Validity of section 377 of the Indian Penal Code which criminalizes consensual sexual acts between adults against the order of the nature. The 105-page historic judgment has ushered in an era of greater freedom for gay men and lesbians in India, for it decriminalized homosexuality. The age-old law which criminalized homosexuality through section 377 of the Indian Penal Code (IPC) was struck down by the Court on the ground that it violated articles 14, 15 and 21 of the Constitution. INCEST IN SCOTS LAW: MISSED OFFPORTUNIES IN THE SCOTTISH LAW COMMISSION REVIEW

James a Roffee, Phd Candidate, Anniversary Scholar in Law, University of Leicester

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Incest is criminalised in Scots Law through the Criminal Law (Consolidation) (Scotland) Act 1995. The Scottish Law Commission (SLC) recently undertook ‘the first ever systematic review of Scots sex law’ which led to the Sexual Offences (Scotland) Act 2009. Yet this systematic review circumvented the offence of incest. To leave untouched such an offence would incorrectly suggest that the Scots law on the subject is appropriately formulated, working well and potentially a beacon of best practice which could be adopted elsewhere.

This article intends to highlight some definitional problems with the Scots law on incest. The SLC first began a review into incest in 1977 producing a memorandum and then a Report. Recommendations within this Report led directly to the Incest and Related Offences (Scotland) Act 1986. The definition was altered substantially by the removal of a number of prohibited degrees. Consolidation in 1995 left the substantive provisions of the law unchanged and this formulation of the law of 1986 is still in force today.

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INCEST IN SCOTS LAW: MISSED OPPORTUNITIES IN THE SCOTTISH LAW COMMISSION REVIEW James A Roffee*

Incest is criminalised in Scots Law through the Criminal Law (Consolidation) (Scotland) Act 1995. The Scottish Law Commission (SLC) recently undertook ‘the first ever systematic review of Scots sex law’1 which led to the Sexual Offences (Scotland) Act 2009. Yet this systematic review circumvented the offence of incest. To leave untouched such an offence would incorrectly suggest that the Scots law on the subject is appropriately formulated, working well and potentially a beacon of best practice which could be adopted elsewhere.

This article intends to highlight some definitional problems with the Scots law on incest. The SLC first began a review into incest in 1977 producing a memorandum2 and then a Report.3 Recommendations within this Report led directly to the Incest and Related Offences (Scotland) Act 1986.4 The definition was altered substantially by the removal of a number of prohibited degrees. Consolidation in 19955 left the substantive provisions of the law unchanged and this formulation of the law of 1986 is still in force today.

J. A. Roffee: Incest in Scots Law: Missed Opportunities in Law Review

The offence criminalises penile-vaginal penetration between two people within the specified degrees of relationship.6 It is an offence for any male or female person to have sexual intercourse with an enumerated relation unless (a) the accused did not know or had no reason to suspect they were related in the specified degrees (b) the accused did not consent or did not have intercourse with the other person or (c) they were married to that other person in a recognised marriage. The offence therefore encompasses both consensual and non-consensual acts, and acts where both parties are adult, both are children and between adults and children. The SLC in its Discussion Paper7 identified a number of guiding principles8 to inform the recommendations made.9 However, it managed to avoid engaging in a meaningful test of the incest provisions against such guiding principles. Its final Report10 devoted a mere eight lines to dismissing the issue, citing what can be called, at best, unrepresentative and unsubstantiated responses11 to its public consultation.

After a review of the current provisions, the discussion will highlight the discriminatory nature of the current legislation against both male victims and heterosexual acts. At the outset there is a definitional problem. Incest occupies a position of multiple common-usage definitions. These definitions come from a variety of sources including the law, the public at large, literature and medical practitioners. These definitions are not harmonised, though they often overlap. This overlap is a serious problem for the offence of incest; much of the conduct within the Act is criminalised elsewhere. And that which is not criminalised elsewhere should not be criminalised at all when tested against the guiding principle of sexual autonomy. It is indeterminable from the offence label whether the party to the criminal act of incest was a victim or a willing participant; either way a stigma attaches to the parties involved. As numerous definitions of incest are in use, there is a failure to accurately identify what the sexual act is. What the law fails to see as incest may well be treated as such by medical practitioners. Thus one is faced with the conclusion that instead of sitting

6 7 *PhD candidate, Anniversary Scholar in Law, University of Leicester. This research has been conducted in pursuance of a doctoral thesis funded by the University of Leicester. The author is happy to receive comments at [email protected]. Special thanks to Charles Garland of the SLC for the very fast response to a Freedom of Information (Scotland) Act 2002 request. SLC, News Release, ‘Justice, Clarity and Consent: New Sex Laws for Scotland,’ 19 December 1 2007, available at http://www.scotlawcom.gov.uk/downloads/nr_rep209.pdf. 2 SLC, The Law of Incest in Scotland, Memorandum No 44 (Scot Law, Edinburgh, Com, 1980). SLC, The Law of Incest in Scotland, Report No 69, Cmnd 8442 (HMSO, Edinburgh, 1981). 3 Incest and Related Offences (Scotland) Act 1986 c.36. 4 5 Criminal Law (Consolidation) (Scotland) Act 1995 c.39. Contemporary Issues in Law is published by Lawtext Publishing www.lawtext.com

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8

9

10 11

N 9 supra s.1 Table including Mother, Daughter, Grandmother, Grand-daughter, Sister, Aunt, Niece, Great grandmother, Great grant-daughter and Father, Son, Grandfather, Grandson, Brother, Uncle, Nephew, Great grandfather, Great grandson. SLC, Discussion Paper on Rape and Other Sexual Offences, Discussion Paper No 131 (TSO, Edinburgh, 2006). Ibid, n 7 supra at Part 2 entitled Guiding Principles, [2.2] Clarity of the law; [2.3] Respect for sexual autonomy; [2.6] Protective principle; [2.7] Distinctions based on sexual orientation; and [2.8] Other types of legal and social intervention. The author is aware of the moral arguments surrounding the criminalisation of incest. In the Discussion Paper at [6.22] the SLC note that feelings of repugnance and strongly held moral views are not in themselves sufficient to criminalise incest. It notes that the reasons behind such feelings should be identified to assess their strengths and weaknesses. There is insufficient room within this paper to discuss the moral argument supporting incest. The author takes an instrumental view of the law, and adopts the position that the law should be seeking to address something in addition to mere repugnance and not merely upholding popular values. SLC, Report on Rape and Other Sexual Offences, Report No 209 (Edinburgh TSO, 2007) at 98. Personal Responses to Public Consultation by Scottish Law Commission, Discussion Paper n 7 supra. Such responses were made available following a Freedom of Information (Scotland) Act 2002 request. For example responses 32, 33 and 46. Contemporary Issues in Law is published by Lawtext Publishing www.lawtext.com

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comfortably with the new laws enacted in the Sexual Offences (Scotland) Act 2009, the law on incest is societally out of time in both its definition and the protection it offers. Rather than acting in haste and expanding the definition, one should look to see if other legal, social and clinical responses are more appropriate both for the victim, and offender. These other responses have the potential to both avoid discrimination and, unlike the current law, to remedy the harm caused rather than be an additional cause of it.

Inherent discrimination

Non-discrimination on the basis of sexual orientation was identified as a guiding principle for informing and testing the recommendations. Like the other principles, incest was never tested against this non-discrimination principle. Thus the opportunity to remove distinctions based on sexual orientation was missed. There is an innate link between sexual orientation discrimination and sex discrimination, and it has been potently argued,12 though not judicially recognised,13 that such a link exists. Thus many of the arguments which apply in support of the abolition of a sex or gender distinction also apply with the same force against discrimination on grounds of sexual orientation.

An often cited supporting justification for incest is based on the ‘proper labelling of the wrong.’14 Such wrong is apparently the violation ‘by a family member’ which is an additional element above and beyond mere violation by a stranger. However, this additional wrong which is apparently recognised through the label ‘incest’, is only attached when a vagina is invaded. The protection provided by the offence of incest is unavailable to all males and those females who are orally or anally violated. The use of incest as an alternative to other offences which ‘fail to highlight the wrong involved’,15 suggests that there is a greater wrong found within non-consensual familial penile-vaginal penetration, than with non-consensual familial penile-anal and -oral penetration. If this were the case, then the findings of the SLC with regard to the severity of infringement of sexual autonomy contained within non-consensual penile-anal and -oral incidents is brought into doubt. The whole reasoning behind the inclusion of anal and oral penetration as an act of rape would therefore require reassessment.

12 13

14 15

Wintemute R, ‘Sexual Orientation Discrimination as Sex Discrimination: Same-Sex Couples and the Charter in Mossop, Egan and Layland’ (1994) 39 McGill L.J 429, Wintemute R. ‘Sex Discrimination in Macdonald and Pearce: Why the Law Lords Chose the Wrong Comparators’ (2003) 14(2) Kings College Law Journal 267-282. Macdonald v Advocate General For Scotland and Pearce v. Governing Body of Mayfield School [2003] UKHL 34. SLC, Discussion Paper n 7 supra at [6.27]. Ibid.

Contemporary Issues in Law is published by Lawtext Publishing www.lawtext.com


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The definition of rape16 was extended to cover a male victim as the SLC felt that there was no reason which could be identified for the difference in treatment.17 The increase in protection offered by the new rape provision recognises that there is much damage inherent in an invasion of personal autonomy by another, which has the additional wrong of being facilitated by the offender’s most intimate and personal organ.18 If the 2009 formulation was correct, then the new types of ‘rape’, penile-anal and -oral, have an equal invasion of personal autonomy. If the wrong that incest is seeking to prohibit is amplified when perpetrated by a family member, then there is no reason why incest should not cover similarly serious penile penetration of other bodily parts (by a family member). The question of why they are not included in the offence of incest becomes relevant. What is it about penile-vaginal penetration by a family member that stands it apart from penile-anal and -oral activity?19 We are told rape by a stranger of the vagina, anus or mouth has equal severity; yet the current formulation of incest provisions suggests that when committed by a family member it does not. Either a vagina should be accorded a higher level of protection, and this should be overtly recognised, or incest’s legal formulation is directly discriminatory. Thus the justification for the offence on the basis of the proper labelling of the wrong has to be discounted; if the offence was concerned with the protection of the family, penile-anal and -oral conduct would also be covered.

Respect for sexual autonomy

The real wrong in incest is surely the violation of personal and sexual autonomy. The principle of sexual autonomy has been used throughout the Discussion Paper as a cornerstone to which many of the new offences are anchored. The Discussion Paper notes that the principle has two important complementary concerns;20 that infringements of a person’s autonomy are labelled as wrongful and should therefore be treated as crimes and entry into a sexual activity through free choice should not result in criminalisation of such activity without sufficient justification. Application of this principle to incest highlights a dissonance between what the principle requires and what the offence criminalises.

16 17 18 19 20

Sexual Offences (Scotland) Act 2009 ASP.9 s.1. SLC, Discussion Paper n 7 supra at [4.18]. Ibid. This paper does not discuss in detail the risk of pregnancy as a secondary harm. Criminalisation on the basis of potential genetic defects to offspring can be discounted on the basis of a potential inconsistency posed by the criminalisation of a remote harm to a child of an incestuous liaison (being genetically abnormal) when there is no criminalisation following the birth of a genetically abnormal child from two unrelated parents. See infra at n 27. SLC, Discussion Paper n 7 supra at [2.3]. Contemporary Issues in Law is published by Lawtext Publishing www.lawtext.com

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As identified above, incest provisions in Scotland criminalise consensual penile-vaginal intercourse in addition to the non-consensual. The provision is thus both over- and under-inclusive. Rape has been extended to prevent a severe infringement of a person’s sexual autonomy21 and to protect this bodily integrity through ‘expressing social-disapproval of a certain sort of sexual wrong’.22 Protection of the family is highlighted as a justification for the criminalisation of incest.23 The Discussion Paper suggests that familial sexual activity harms not only the participants but also other family members; no evidence is produced in support of this assertion. The mention of sexual abuse of children suggests that there is a conflation within the discussion of the issue of consensual and non-consensual incest into a ‘generic incest’ which has the attribute of being predominantly abusive. The Paper also suggests that regulation of such conduct by other offences does not distinguish between a stranger and family member, the emphasis being on the breach of trust. Even if this were the case one should question the compatibility of the incest provisions, protection of the family and sexual autonomy when the incest provisions only protect those in possession of a ‘vagina’ from penile penetration. The principle of sexual autonomy does not provide a heightened level of protection of vaginal acts. This would therefore suggest that compliance with the principle would require criminalisation of acts of the same severity as non-consensual penile-vaginal intercourse. Application of the principle highlights the gaps in protection; incest provisions cover only familial penile-vaginal penetration. They fail to include familial penile penetration of the mouth and anus. Just as there are family members in need of protection from non-consensual vaginal intercourse, there are individuals who need protection from family members who engage in non-consensual anal and oral penetration.24 The current incest provisions fail to provide this protection and are thus under-inclusive; failing to secure sexual autonomy and cannot be justified on the basis of protection of the family. The law on incest is also over-inclusive. It not only criminalises nonconsensual intercourse, but it also includes consensual penile-vaginal intercourse. With respect to the dedicated homosexual offences the SLC noted, when deciding that there was no need for any such homosexual offences, that ‘where homosexual conduct involves the lack of consent of one of the parties, it would fall within the scope of the offences considered in part 4 (rape, penetrative assault, and other sexual assaults)’.25 The SLC thus drew the conclusion that double criminalisation was unnecessary. It also decried the discriminatory nature of the law, (through including conduct which was not within the correct remit of the criminal law) and thus suggested removal of the provisions. Similarly, protection of the vagina is provided through other criminal law provisions. By analogising with the 21 22 23 24 25

SLC, Discussion Paper n 7 supra at [4.18]. Ibid at [4.16]. Ibid at [6.17]. Protection is already provided through the rape provisions in the 2009 Act. SLC, Discussion Paper n 7 supra at [6.5].



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SLCs reasoning, one can identify that the only act which is not subject to this double criminalisation is consensual adult penile-vaginal penetration.

The second limb of the principle of sexual autonomy requires that where a consensual act is criminalised sufficient justifications are provided. The consent inherent within the consensual adult incest negates any reliance on ‘protection of members of the family’. Protection of members of the family should not be another guise for mere paternalism. The maintenance of family solidarity is also a failed justification when assessed against sexual autonomy. As the Discussion Paper notes, other issues such as adultery and divorce are serious threats to family solidarity yet these are not criminalised.26 Neither does the justification based on the genetic effect27 of incest provide sufficient justification for the overriding principle of sexual autonomy. The genetic argument has been assessed and disregarded in England and Wales.28 A number of reasons in support of such a conclusion include: that genetics had not been used as a past rationale;29 that there is great doubt as to whether the greatly increased risk of a variety of diseases would justify a criminal offence; and that it was not significant in achieving the aims of protection of the family and children.30 If incest were to be justified on the grounds of the genetic defects of potential offspring and thus override the sexual autonomy principle, not only would this be a relatively remote concern, it would also have the added implication of labelling any defect caused to the offspring as a legal wrong. This would leave unresolved an inconsistency between non-incestuous unions who produced offspring who were ‘defective’ (not illegal) and those who do in incestuous unions and which results in a criminal penalty. The corollary of criminalising incest on the basis of this genetic risk is the need for consistency in the law. Such consistency would advocate the criminalisation of sexual intercourse by those who suffer a genetic disease. This would clearly be unacceptable and undoubtedly spark a challenge under Article 8 ECHR. It is also necessary to note that the SLC in the 1981 Report suggested that such criminalisation would make incest a result crime, where incest attracts criminal sanction only if the wrongful outcome occurs.31 If it were the intention of the legislators to make incest a result crime, this would indicate that the current formulation would also be overinclusive. This over breadth comes from the offence capturing all penilevaginal penetration and not just offspring-producing intercourse. It would also become unworkable; there may be occasions where a couple have done all they could do, through the use of (multiple) contraceptive methods, and yet this has still resulted in a pregnancy. Criminalising only fruitbearing intercourse also calls into question some of the other justifications 26 27

28

29 30 31

Ibid at [6.22]. The ‘genetic effect’ is often an argument based on the potential damage which may be caused to any child born of an incestuous liaison. See generally Adams M.S, Neel J.V, ‘Children of Incest’ (1967) 40(1) Pediatrics 55-62 who are often quoted in support of incest laws; their sample of 18 children showed 6 (33%) died prematurely or had major birth defects. Home Office, Setting the Boundaries: Reforming the Law on Sex Offences Volume 1 (Home Office Communication Department, London, 2000) at [5.1.9]. Ibid n 28 supra at [5.1.6]. Ibid n 28 supra at [5.1.9]. SLC, Discussion Paper n 7 supra at [6.17] citing SLC, The Law of Incest in Scotland n 2 supra at [3.19]. Contemporary Issues in Law is published by Lawtext Publishing www.lawtext.com

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for criminalisation. Protection of members of the family, maintenance of family solidarity and feelings of repugnance do not support a result-only basis for criminalisation.

Does labelling an ‘incest victim’ help or hinder?

There may be cases in which there is neither trauma nor a victim – for example, where the act was entirely consensual. This is an instance where the offence of incest over-criminalises; it captures, in breach of the sexual autonomy principle, consensual penile-vaginal intercourse. There may be cases like that of Danielle Heaney and Nick Cameron, who are half-brother and sister.32 The two met as adults after being separated, Nick being placed in foster care. Is it Danielle or Nick who is the victim? Neither stands in a protective role to the other, neither groomed or coerced the other, nor were they children. Their sexual autonomy is unjustifiably restricted; they are prevented from engaging in consensual penile-vaginal penetration on pain of life imprisonment.33 Yet they could legally engage in anal sex, fellatio and acts other than intercourse. They could even conceive a child through alternative means (other than intercourse) and face no sanction; the definition of incest is woefully outdated. It sends an inconsistent signal. Family members cannot engage in penile-vaginal intercourse but it is legal to engage in other sexual activity. Rather than excessive concern with the act of penetration, the law should occupy itself with the identification of the true wrong that it seeks to eliminate. This suggests that there should be a reassessment of the definition of the elements of the offence.

As has been seen so far, the definition of incest as it sits today is far from satisfactory. ‘Incest’, rather than being a term which adds clarity, instead clouds the issue of what criminal offence has been committed. La Fontaine notes that there is a conflation of incest with ‘child sexual abuse’ and although the two concepts have some overlap, they are unfortunately used interchangeably, which has the potential to cause great confusion.34 La Fontaine merely confirms an identifiable dissonance in the definitions; she gives an example of a dictionary definition which defines incest as ‘the crime of sexual intercourse or cohabitation between persons related within the degrees within which marriage is forbidden’.35 The definition of incest is not the same as those who are prohibited from marriage.36 Thus the law is internally inconsistent; some may argue that the criminal provisions are pursuing different aims from the marriage legislation.37 The third source 32

33 34

35 36 37

‘Incest Couple Defy Scots Court Ruling’ The Times, 6 May 2008, available at http://www.timesonline.co.uk/tol/news/article3883261.ece, last accessed 25 February 2010. Criminal Law (Consolidation) (Scotland) Act 1995 c.39 s.4(5)(a). La Fontaine J, Child Sexual Abuse (Polity Press, Cambridge, 1990) at 24, identifying three potential sources for the differing definitions: dictionary definitions which are heavily reliant on literary sources; the criminal law; and the common understandings of most people. Ibid. Marriage (Scotland) Act 1977 c.15 s.2 and Sch. 1 sets out the forbidden degrees and Criminal Law (Consolidation) (Scotland) Act 1995 c.39 s.1 enumerates the criminal prohibition. Such debate is beyond the scope of this paper.



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for a definition is that the SLC deferred to when deciding not to conduct a review of incest: public opinion. Public responses to the Discussion Paper noted that the current definition should continue to be used as it is ‘easily recognisable by members of the general public’.38 This is both unsatisfactory and unsubstantiated reasoning. These public responses to the consultation did not cite any evidence in support of the statement that the crime was an easily recognisable offence. And even if the offence was easily recognised, this alone does not support its continued existence in its current discriminatory form nor does it indicate that the public are able to identify or even understand all the elements of the offence. They were probably of the view that their public perception of the offence covered all acts between all family members which, as one can see, is factually inaccurate. The lay respondents were also probably ignorant of the fact that there are numerous definitions of incest in use – there being a significant dissonance between each of them.

Frontline medical practitioners including doctors, therapists and psychologists use an altogether different definition to those identified by La Fontaine. This broader definition provides that ‘Incest is a violation of a position of trust, power, and protection’.39 Such definition is shared in large measure by therapists who work with issues of sexual abuse and by incest survivors support organisations.40 This definition clearly identifies a wrong (violation of position of trust, power and protection) by a family member. Therapists thus have a broader definition which they can apply in the aim of identification of conduct which they seek to address. The wrong is the violation caused by a perpetrator who ‘is assumed to stand in a protective role to the victim’.41 The therapists’ definition does not confine ‘incest’ to penile-vaginal acts. It implicitly allows, and thus recognises, the possibility of, a violation of a position of trust to occur in sexual acts outside of penile-vaginal penetration. Renvoize notes that ‘any number of acts may be committed which frequently are at least as traumatic to the victim as full intercourse’.42 Whilst adopting a definition as wide as is used by medical practitioners may be legally problematic, causing uncertainty over who is within the position of trust, power and protection, the issue remains that the current definition does not achieve its aim. The opportunity for a review of the law on incest has been missed; the law would benefit from a review, including the possibility of aligning the law to accord with therapists’ definitions whether as a stand alone offence or as aggravating factors of a broader offence.

38 39 40 41 42

Personal Responses to Public Consultation n 11 supra at responses 32, 33 and 46. Lew M, Victims No Longer (Quill, New York, 2004) 10. Ibid. Ibid at 11. Renvoize J, Incest: A Family Pattern (Routledge, London, 1982) 24.


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How the legal label facilitates stigmatisation of the victim

There is a well-documented trail of research that identifies a stigma that is perceived to attach to incest survivors.43 This is conferred onto the victim through feelings of being damaged, guilty, isolated and ashamed.44 Tomlin suggests that incest survivors react to the stigma which they believe is imputed to them from others which may then become part of a person’s self-image and consequently cause negative changes in the individual’s personality.45 The Sexual Offences Review Team decided that the term incest was not the right one when seeking to address the protection of the family.46 Very often society believes that the victim has engaged in activities which somehow open them to abuse.47 This is a blame-shifting exercise that can be very harmful to the victim. And as shown by Grand and Alpert, a lack of understanding of the survivor’s psychodynamics and their wish to remain attached to the offender, causes the imputation of guilt onto the victim for desiring such incestuous liaisons.48 A wish to remain attached to the perpetrator is not so unusual when incest is appreciated against the background of the concept of ‘objectlessness’.49 Incest is not the only offence where stigma attaches to potential victims, however a re-labelling of the offence to include within the title the term abuse may facilitate the social-educative function of the law, informing and reiterating to the public that the act that has occurred is abusive and that it is this abusive relationship that the law seeks to address. As has already been identified, those without a vagina do not find protection from incest provisions if they are penetrated by a family member. An assessment of incest and those without vaginas must be conducted. An additional set of stigmatic conditions attach to males; the survival of incest as a male takes a completely different route to that experienced by females. The definition of the offence requiring penile-vaginal penetration rules out homosexual incest. But most male incest victims are abused by men.50 This leads to a unique set of stigmatising conditions which were identified by Tomlin. Male incestuous activity is thus endowed with the consequent homosexual stigmatisation. The social construct of males as self-reliant and 43

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46 47 48

49

50

See generally Santoro Tomlin S, ‘Stigma and Incest Survivors’ (1991) 15 Child Abuse and Neglect 557-566. See Courtois CA, ‘Victims of Rape and Incest’ (1979) 8 Counseling Psychologist 38-40, and Ledray LE, Recovery from Rape (Holt, New York, 1986). Lemert EM, Social Pathology: A Systematic Approach to the Theory of Sociopathic Behaviour (McGraw-Hill, New York, 1951). Home Office, Setting the Boundaries n 28 supra at [5.5.5]. Santoro Tomlin S, ‘Stigma and Incest Survivors’ (1991)15 Child Abuse and Neglect 557-566. Grand S and Alpert JL, ‘The Core Trauma of Incest: An Object Relations View’ (1993) 24(3) Professional Psychology: Research and Practice 330-334. Objectlessness is concerned with the need for a person to be connected with another and the fear of not being connected with anyone at all. See Fairbairn WR, Psychoanalytic Studies of the Personality (Routledge, London, 1952). See Santoro Tomlin, n 47 supra; Pierce R and Pierce LH, ‘The Sexually Abused Child: A Comparison of Male and Female Victims’ (1985) 9 Child Abuse and Neglect 191-199; Porter E, Treating the Young Male Victims of Sexual Assault: Issues and Intervention Strategies (Safer Society, New York, 1986).



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as aggressors translates into the assumption that the victim could have ended the abuse if he had wanted to.51 Males are expected to flee the attack or fight it off;52 failure to do so may result in a label of cowardice.53

Yet another set of issues arise when dealing with female-male abuse. The expectation placed on men to enjoy sex results in a normatisation which isolates and de-masculinises those who fail to enjoy such incidents.54 Using a therapist’s rather than a legal definition of incest, the violation of a position of trust and power would identify such female-male acts as incestuous and thus needing intervention. Incidents of this sort are rarely treated as abusive;55 disclosure of such incidents results in disbelief, denial, trivialisation and romanticisation of the story by those who should be supporting the victim,56 and widespread belief that women cannot sexually abuse their children.57 Renvoize suggests that mother-son incest is probably the most harmful of all, and that some believe that invariably the victim will become psychotic as a result of the relationship.58 Nasjleti suggests that very often boys who are abused by their mothers assume responsibility for their own molestation because the mother is viewed as a non-sexual creature incapable of abusing her own child.59 Intervention through the law is thus unlikely to be seen as an avenue to which the abused would turn.

There are thus deeply concerning issues surrounding incest; if the offence in its current formulation is meant to protect rather than stigmatise it fails to achieve such a goal. Ignorance of male incest, whether a deliberate oversight or not, has the potential to exacerbate the trauma of what can only be described as a horrendous and heart-wrenching situation. The current formulation of the law has the potential to reinforce such feelings. It does not take seriously male incest and acts other than penile-vaginal penetration.

What now?

Proponents of the abolition of incest are likely to cite the damage that such stigma has the potential to cause and that this should therefore not be extended to include other acts. Those involved in acts of non penile-vaginal intercourse face an additional problem, they face the societal label and stigma that attaches following an incestuous incident yet they do not fall 51 52 53 54 55 56 57 58

59

Note 47 supra citing Finkelhor D, Child Sexual Abuse (Free Press, New York 1984). Note 38 supra at 60. Note 47 supra. Note 39 supra at 61. Note 39 supra at 60. Note 39 supra at 61. Banning A, ‘Mother-Son Incest: Confronting a Prejudice’ (1989) 13 Child Abuse and Neglect 563-570. Note 42 supra at 130, schizophrenia confirmed by Wahl CW, ‘The Psychodynamics of Consummated Maternal Incest’ (1960) 3 Archives of General Psychiatry 188-193; Lukianowicz N, ‘Incest’ (1972) 120 British Journal of Psychiatry 301-313 Nasjleti M, ‘Suffering in Silence: The Male Incest Victim’ (1980) 45(9) Child Welfare 269-275. Contemporary Issues in Law is published by Lawtext Publishing www.lawtext.com

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within the law’s definition of incest. They are thus equally stigmatised as penile-vaginal participants, yet are not afforded the same level of protection through the law. This is an issue of discrimination, clearly something the guiding principles of the review sought to avoid.

As a serious problem with the current definition has been identified it would thus be appropriate to identify a number of potential solutions to the problem. The SLC suggested that it should look to other types of legal and social intervention before resorting to criminalisation of the conduct in question.60 This may be a variation or application of the principle of last resort61 which advocates against a criminal sanction if it is not the most effective method for resolving the issue. Like the other principles, the SLC failed to apply it to the offence of incest. Such an investigation would have highlighted numerous persuasive arguments against legal intervention in incest cases. North American studies have indicated that ‘legal measures should be the exception’ when dealing with incest cases.62 The heavy arm of the law is likely to be a serious deterrent for those seeking help. If the stigma of the incident is not enough to stop help being sought, then the potential for the ‘consenting’ victim family member to seek help is bolstered by the fear of criminal sanction for the victim. Cormier et al found that disclosure has the effect of liberating the whole family, who can then act to prevent incest occurring by changing and reassessing family roles and relationships.63 Cooper cites the merit of decriminalisation as both a clinical and social benefit, providing the protection of both the physical and mental well-being of children. She also notes that the non-legal response avoids the incarceration of (in her case) the father. The essence of the new legal-clinical response provides for the rehabilitation of the father and other family members. It has been known for a number of years that harmful effects to the family precipitated by the discovery of incest and official response and punishment are more serious than those which might arise during the incestuous activity.64 Giarretto et al suggest that indirect punishment (that in addition to any criminal sanction) impacts not only the perpetrator but also the victim and other family members with devastating effect.65 In addition to widespread publicity, the perpetrator is likely to suffer loss of job and consequent income. Loss of social status and community respect 60 61 62 63

64 65

SLC, Discussion Paper op cit n 7 at [2.8]. See generally Husak D, ‘The Criminal Law as Last Resort’ (2004) 24(2) Oxford Journal of Legal Studies 207-235, Minkkinen P, ‘“If Taken in Earnest”: Criminal Law Doctrine and the Last Resort’ (2006) 45(5) Howard Journal of Criminal Justice 521-536, Packer HL, The Limits of the Criminal Sanction (Stanford University Press, California, 1968). Cooper IK, ‘Decriminalization of Incest – New Legal-Clinical Responses’ in Family Violence: An International and Interdisciplinary Study, eds. Eekelaar JM and Katz SN (Butterworths, Toronto 1980) 518-528. Cormier BM, Kennedy M and Sungowicz J, ‘Psychodynamics of Father Incest’ (1962) 7(5) Canadian Psychiatric Association Journal, 203-217. Maisch H, Incest (Andre Deutsch, London, 1973). Giarretto H, Giarretto A and Sgroi SM, ‘Coordinated Community Treatment of Incest’ in Wolbert-Burgess A, et al. Sexual Assault of Children and Adolescents (Lexington Books, New York, 1978) 231-240.



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for the family is likely to follow as well as a pervasive social stigma. The lack of understanding causes a contentious destructive environment rather than a cooperative and regenerative one.66

Abandonment of the term ‘incest’ is now overdue. The English review found that protection of the family was not best secured through the use of the term incest.67 They have instead reformulated the offence and recommended one of familial sexual abuse.68 As was shown above, non-consensual acts should be primarily recognised as such. Non-consensual intercourse is most importantly rape; the fact it is committed by a family member may become an aggravating element69 but it should not be used to detract from the main wrong which is the abuse of personal and sexual autonomy. Other sexual acts outside penile-vaginal penetration committed by a family member should fall within other already existing offences of sexual assault,70 coercion71 and/or a child sex offence.72 The definition of the offence of incest could be expanded, as occurred in England and Wales in 2003;73 however, this is another unsatisfactory solution. As has been identified above, the meaning of the term ‘incest’ is ambiguous due to the numerous and varied definitions that are in use today. Expansion of the definition offers no solution to the stigmatic effect. Instead a preferable solution would include a reformulation of the offence, to concentrate on the wrong that has occurred and then embed this wrong within the definition. Scotland does not yet have a Sentencing Guidelines Council, though Part 1 of the current Criminal Justice and Licensing (Scotland) Bill74 makes provision for one. The establishment of such a Council is to encourage consistency in distribution of punishment. Such a council could easily establish ‘family connection or relationship’ as an aggravating factor for a crime such as rape and the sexual assault or coercion offences. Protection of the family as a justification for the offence also leaves open the possibility of enacting a familial sexual abuse offence, which has the potential through both the labelling and appropriate penalty, to highlight the wrong involved.

Conclusion

The discussion and recommendations before the Sexual Offences (Scotland) Act 2009 presented an opportunity to reassess the Scots incest provisions. The SLC and the Scottish Government, which conducted its own consultation, both failed to exploit the chance to amend the incest 66 67 68 69 70 71 72 73 74

Ibid. Home Office, Setting the Boundaries n 28 supra at [5.5.5]. Sexual Offences Act 2003 c.42 ss.25-29. See Senaeve P, ‘Incest in Belgian Criminal Law’ in Family Violence: an international and interdisciplinary study, eds. Eekelaar JM and Katz SN (Butterworths, Toronto, 1980) 529-536. Sexual Offences (Scotland) Act 2009 ASP.9 s.3. Sexual Offences (Scotland) Act 2009 ASP.9 s.4. Sexual Offences (Scotland) Act 2009 ASP.9 Part 4. Sexual Offences Act 2003 c.42 ss.64-65 replacing Sexual Offences Act 1956 c.69 ss.10-11. Criminal Justice and Licensing (Scotland) Bill SP Bill 24, introduced 6 March 2009. Contemporary Issues in Law is published by Lawtext Publishing www.lawtext.com

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Notes

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laws. Instead Scotland has a law which has changed little in its 445-year history. Yet the society which it is intended to regulate has certainly changed. The law is unfit for purpose. It breaches the guiding principles of the SLC review, notably sexual autonomy. The law is both over- and under-inclusive. It is unclear what the law on incest is setting out to regulate. The problem is thus the legal definition, its current formulation is discriminatory; again another breach of a guiding principle. Penetrated males in particular and non penile-vaginal familial relations are relegated beyond the protection of the offence. Research highlights the profound effect that incest has on males, which is surely exacerbated by the law’s ignorance of their plight. The legal definition is out of line with general literature, with views of therapists and workers in the field and with the general public perception of the offence. Once identified, an incestuous liaison carries a heavy burden – for the consensual participant or abused victim and other family members. The opportunity for change has been missed. Instead of adopting a knee-jerk reaction and expanding the definition, an assessment of the value of the criminalisation of incest should be made, including the potential cost-benefit to the victim of using such provisions. The likelihood is that any objective assessment would see that other legal and social responses are more effective at tackling the problem, protecting the vulnerable and punishing a true offender than the current formulation of the incest provisions does.



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Notes

