Massachusetts Appeals Court Rejects Constitutional Challenge to Old Incest Statute

The Appeals Court of Massachusetts rejected an equal protection challenge to a superseded version of the state’s incest statute, brought by brothers who were convicted of incest for having sexual intercourse with their sister. Commonwealth v. Chau, 2010 WL 1655526 (April 27, 2010).

The court found that the charged acts took place before the statute was amended in 2002. Under the pre-2002 statute, incest could only be accomplished by penile-vaginal sex. The defendants argued that this violated equal protection by making the crime turn on the sex or sexual orientation of the perpetrator and the victim. Sex between the brothers would not be prohibited, but sex between the brothers and their sister would be prohibited.

According to the Appeals Court, prior decisions of the Supreme Judicial Court made clear that the official rationale for the statute was to prevent birth defects, and thus it was rational for it to extend only to sexual acts that could lead to pregnancy. As such, the Appeals Court found that there was a compelling state interest behind the statute, which was narrowly tailored to meet that interest.  The court noted that the Supreme Judicial Court has not yet determined whether a statute that discriminates based on sexual orientation merits strict or heightened scrutiny, but analyzing the matter as if such a determination had been reached, the court found that the statute would still survive judicial review.

Under this reading of G.L.Mass. 272(17), gay brothers could have sex with each other without being guilty of incest. However: under the 2002 amendment, the current version of the statute expands the range of prohibited sexual conduct between blood relatives to include "oral and anal sex, fellatio, cunnilingus, and other penetration of a part of a person’s body, or insertion of an object into the genital or anal opening of another person’s body, or the manual manipulation of the genitalia of another person’s body."  The court gives no indication why the legislature decided in 2002 to expand the definition of incest so radically as to include virtually every form of sexual contact, but it appears that the legislature disagreed with court rulings suggesting that the only purpose for the incest statute was to prevent birth defects.  As many jurisictions have asserted in passing broader incest laws, there is a strong concern about the disruption in families that can be caused by sexual relationships between parents and children or between siblings.

So gay brothers (or lesbian sisters) in Massachusetts had better refrain from fooling around with each other, because a violation of the statute is a felony that can lead to serious jail time.