California Incest Laws

California Penal Code 285 defines and penalizes incestuous relationships. The statute punishes marriage or sexual relations between close relatives as specified under the law. Violation thereof is a felony punishable by up to 3 years in jail as well as registration as a sex offender.

California Penal Code Section 285 reads that:

"… 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…"

In determining whether relationships are considered incestuous relationships punishable under this statute, we have to reference Family Code 2200, which defines Family relationships for California incest law. The statute above states:

"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."

It should be emphasized that consent is immaterial in this offense. In effect, you may be penalized under this law even if both parties have consented to the incestuous relations.[1]

As per California Penal Code Section 285, persons found guilty of this offense may face imprisonment in state prison for sixteen (16) months, two (2) years, or three (3) years; and/or a fine of up to ten thousand dollars ($10,000).

Aside from imprisonment and fine, a person convicted for violation of PC 285 will also be required to register as a sex offender.

Sex offender registration now comes in tier levels with the effectivity of California Senate Bill 384. This means that the duration with which an offender is required to register will depend on the classification of his offense in terms of tier level. For example, a person convicted for violation of Penal Code 285 is classified as a Tier II offender; as such, they will now have to register as a sex offender every year for at least twenty (20) years. After complying with the registration requirement for a minimum of 20 years, persons convicted for violation of Penal Code 285 will become eligible to apply for a petition to terminate their duty to register. Failure to comply with such registration requirements during the period of minimum registration, on the other hand, will result in a separate violation of the Penal Code.

With the severity of the penalties imposed upon conviction of this offense, a competent attorney must properly assist you during the trial. Legal defenses for this type of charge will depend on a case-to-case basis; however, some of the most commonly used defenses are as follows: (1.) You were a minor when the incestuous activity took place; (2.) You did not know that you and the other person were related; and/or (3.) You have been falsely accused.

Let's take a closer look at the offense

1. When is a crime of incest committed?

For the prosecution of PC 285 to prosper, the following elements must be established:

1. Sexual intercourse with (or, in rare cases, got married to) another person;
2. Both parties to the sexual intercourse/ marriage must have been at least 14 years old at the time of the commission of the crime; AND
3. Relationship between parties must be between any one of the following:
   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.[2]

1^st element: Sexual intercourse

For violation of incest law to exist, there must have been sexual intercourse. This means any penetration—no matter how slight—of the vagina or genitalia by the penis. Moreover, statutes provide that ejaculation/orgasm is not required for one to be convicted of the offense.[3]

As such, other forms of sexual activity are not covered under this law. However, you may be charged for other related offenses for the commission of other forms of sexual activity.

2^nd element: Both parties must have been at least 14 years old at the time of the commission of the crime.

The offender may only be convicted of this offense if both parties are at least fourteen (14) years old at the time of the commission of the crime.[4] However, this does not mean that there is no crime committed when engaging in sexual intercourse with a relative who is 13 or younger. In addition, this act, while not considered incest, may fall under other related criminal offenses, which may be as follows:

1. Penal Code 261.5 statutory rape
2. Penal Code 288 lewd acts on a minor under 14 and/or
3. Penal Code 288.5 continuous sexual abuse of a child.

Note that the preceding crimes' conviction carries penalties as serious or even more severe than that imposed upon conviction with Penal Code 285 on Incest law.

3^rd element: Relationship between parties must be any one of that listed by law as incestuous

Lastly, this offense is only committed when the following relationship between parties are considered incestuous, such as between parent/child, ancestor/descendant, siblings, half-siblings, uncle/niece, or aunt/nephew.[5]

Sexual intercourse (or in rare instances marriage) between persons outside of the relationship above are not considered incestuous, even if they are related. However, it may fall as a crime under other related criminal statutes.

Penalties for a Penal Code 285 PC

The penalties which may be imposed upon conviction under this code may be any of the following:

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

In addition to the foregoing penalties, the offender will also be required to comply with California's sex offender registration for at least twenty (20) years, being classified as a Tier II offender.[6]

Registration must be made with the police of the city or county where you live; and will have to be renewed under the following circumstances:

1. every year, within five (5) working days of your birthday, and
2. every time you move to a new residence.[7]

Non-compliance with the registration requirement shall result in additional felony charges.[8]

Defenses to an incest charge

Being charged with a violation of incest laws can be extremely distressing. However, legal defenses may be available with the assistance of a competent attorney during trial. These defenses which can help your case may include minority, lack of knowledge of relationship at the time of the commission of the offense, or being falsely accused.

1. You were a minor when the alleged incest occurred

As already discussed above, one of the elements for the charge to prosper is that both parties must be at least 14 years old at the time of the commission of the offense. Hence, you can be absolved of the charges if you were under fourteen (14) years old at that time when the incestuous sex occurred

2. You had no knowledge that you are related to the other party

Relationship, listed as incestuous under the law, is an essential element for the conviction under this statute. However, If you can show that you did not know you were related to your alleged sexual partner, you are probably not guilty of incest.

3. You were falsely accused

There can only be conviction of a criminal charge when there is proof beyond reasonable doubt that the acts complained of constituting the offense have been committed. Considering that these types of offenses are usually done without the presence of a witness, it is possible that the charges could be entirely fabricated and that the accuser was merely motivated by jealousy, revenge, or ill-will towards you.

Offenses related or similar to PC 285

Criminal charges can still be had even if any one of the elements of an incestuous relationship as discussed is missing. Such as in cases when sexual intercourse between relatives not listed as incestuous; or even if listed as an incestuous relationship one of the parties thereto is a minor. Possible charges can be as follows:

1. Penal Code 261.5 - statutory rape

Consensual sex is punishable by California Penal Code under certain circumstances as in the case of incestuous relationships under Penal code 285 and Penal Code 261.5 on statutory rape. The difference is that statutory rape is consensual sex with someone who is a minor rather than someone who is a relative.

Therefore, in cases when sexual intercourse was had with a relative, not listed as incestuous —for example—having consensual sex with your stepchild, stepsibling, or cousin while s/he is under 18, you can be charged with statutory rape rather than incest.

Moreover, even in cases when the relationship is listed as incestuous, but one of the parties to sexual intercourse is under 14, you may be charged with statutory rape instead because California incest law only applies where both sexual partners are 14 or over.

Penal Code 261.5 – statutory rape is a "wobbler" offense which means that it may be charged as either a misdemeanor or a felony depending on the circumstances.[9]

Factors determining whether the crime is a misdemeanor or a felony will depend on the age difference between the defendant and the minor. If the defendant is 21 or older and the minor is under the age of 16, the penalties are likely to be most serious.

b.) Penal Code 281 & 283 bigamy

The crime of bigamy under Penal Code 281 takes place when a person marries during the validity of marriage with another person.[10] This crime is similar to that of California incest because it involves sex/marriage that two consenting adults can commit.

Violation of Penal Code 28 is a wobbler, and conviction carries a maximum felony state prison sentence of three (3) years.[11]

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

PC 288.5 is considered a more serious offense than incest. A conviction for this offense can include a prison sentence ranging from six (6) to sixteen (16) years.[12]

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.[13]