The State of California considers incest to be a criminal act. According to the California Penal Code § 285, marriage and sexual relations between two parties related in degrees specified by the California state law are prohibited. The law might seem simple enough at first glance.
However, upon closer examination, it raises a lot of significant questions: Who exactly are the family members defined by the incest law? Does the law apply to sex to different degrees, or does it only apply in the context of marriage? What is the status of half-brothers? What if one party didn’t know they were related?
Once again, it is interesting to note that California’s incest law goes hand in hand with the California’s Family Law which defines the family relationships recognized as incestuous and void in marriages.
In addition to that, California criminal jury instructions clarify the components of the offense under the California Penal Code § 285. This guide will cover the topic, explaining California incest laws, relationships, ways of violation, penalties, restrictions on marriage, relationships among half-kin, and many other relevant legal aspects as simply as possible.
Table of Contents
Incest in California: Understanding the Law and Its Restrictions
Indeed, California does not take it lightly. According to Penal Code 285 PC sexual intercourse or marriage between someone who is within the degrees of blood relationship specified by law is considered incest. This law:
Involves liability for permission even when both are consenting adults. In other words, incest happens in California if one is blood related and has sexual relations with another in the age of 14 or older.
Defining Incest Under California Law: Key Legal Rules
For a charge to be valid, all three criteria must be satisfied:
The last criterion is of primary importance since the state does not criminalize intercourse between every relative but only some of them.
One interesting detail involved relates to the narrow definition of “sexual intercourse” penetration of the vagina or female sexual organ by the male one.
Other sexual conduct between relatives may not be a subject of criminalization per this law but may fall under other California laws regulating sex crimes depending on multiple factors like age or consent.
Family Relationships Prohibited Under California Incest Laws
Here’s the fastest way to check where a relationship stands under California incest law:
| Relationship | Covered Under PC 285? |
| Parent and child | Yes |
| Grandparent and grandchild (any degree, including great-grandparents) | Yes |
| Full siblings | Yes |
| Half-siblings | Yes |
| Uncle/aunt and niece/nephew | Yes |
| First cousins | No |
| Stepparent and stepchild | No |
| Stepsiblings | No |
| Adopted siblings | No |
| Half-uncle/half-aunt and half-niece/half-nephew | No |
The question is whether it is unlawful to be in a relationship with your sibling in California. The answer is yes because sexual intercourse or matrimony between half siblings and full siblings make for criminal incest whether consent is given or not.
Relationships such as that of stepsiblings and first cousins might seem wrong to some people, but they are not covered by the relevant law. Other applicable laws may still exist, but not the incest laws listed in Penal Code 285.
California Incest Law: Marriage vs. Sexual Relations
In California, there is actually a split of this issue into two separate laws:
Penal Code 285, the criminal law, makes sexual intercourse or marriage between close relatives a felony while Family Code section 2200 the civil law declares marriages involving close relatives incestuous and void at the outset, regardless of the nature of their relationship.
This means that in the event that two people who are closely related get married, this marriage is treated by California as if it never existed in a legal sense, as it is considered automatically void from the very start without requiring a lengthy annulment process.
Penalties for Incest in California
This is where it becomes complicated: consent is not applicable in the incest laws of California.
Unlike most sex offenses where proving consent is necessary to secure a conviction, incest laws are not dependent on the fact of consent or lack of it.
If one of the partners is younger than 14 prosecutors would prefer to charge him with much more severe crime like lewd conduct with minor or continuous sexual abuse of a child which lead to longer prison terms than the incest charge.
If the accused was minor when the incest began and the other person was an adult, this means that the relationship is not a crime in California, regardless of the fact that the couple continued their incestuous relationships even after the accused turned 18.
California Incest Laws: The Role of Age and Consent
This is where it becomes complicated: consent is not applicable in the incest laws of California.
Unlike most sex offenses where proving consent is necessary to secure a conviction, incest laws are not dependent on the fact of consent or lack of it.
The legal authorities are only interested in whether the people have a family tie and consents or not does not matter.
If one of the partners is younger than 14, prosecutors would prefer to charge him with much more severe crime like lewd conduct with minor or continuous sexual abuse of a child, which lead to longer prison terms than the incest charge.
If the accused was minor when the incest began and the other person was an adult, this means that the relationship is not a crime in California, regardless of the fact that the couple continued their incestuous relationships even after the accused turned 18.
California Incest Laws: How They Apply to Half-Siblings
Half-sisters and half brothers cannot be classified as exceptions to the law. They are definitely included in the number of related persons. Legal provisions in section 285 of the Penal Code provide equal treatment to siblings/half siblings.
The complexity arises with the cases of disputed parentage. According to the law in California, the legal father of a child is presumed to be the husband’s to be who is married to the child’s mother at the time of conception of the child.
This presumption on parentage makes it possible for the law to define whether two people are related regardless of the fact that the DNA testing confirms that they are not.
Is an Incestuous Marriage Legally Valid in California?
Legal Defenses in Incest Cases
Incest cases often turn on family history and relationships rather than physical evidence, so a few defense strategies come up more often than you’d expect:
None of these guarantee a particular outcome. How they play out depends heavily on case specific facts, which is exactly why anyone facing these charges should work with a qualified criminal defense attorney rather than navigate it alone.
Frequently Asked Questions
Q. Is incest a felony in California?
Yes. Incest is always charged as a felony under Penal Code 285 and never as a misdemeanor.
Q. Does the law specify sexual intercourse, or is any sexual contact also included?
The law only applies to sexual intercourse (or marriage), but other forms of sexual activity may break other California laws depending on the circumstances.
Q. Are cousins included in California’s incest law?
No. First cousins are not listed as prohibited under Penal Code 285.
Q. What if a person has no knowledge of being related to their partner?
Lack of knowledge can be a defense, although California law on that is not fully definite.
Q. Do both people have to be adults to be charged with incest?
No. Incest applies to anyone who is at least 14 years old, though special protection exists for minors who are involved with adult relatives.
Final Thoughts
In California, incest is against the law, and California Penal Code § 285 creates legal consequences for incestuous marriages or other sexual contacts between individuals in unlawful degree of kinship.
The law may become more complicated in the presence of additional factors such as age, particular family relations, and the specifics of the relationship.Should you be looking to understand a particular case, it is important not to rely on generic information only.
There are many cases where incest laws of California may intersect with other criminal laws, especially when there is a minor or other factors involved. Following the exact nature of the relationship and actions taken is crucial for determining the pertinent law.
