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281 Section 130 OF THE CRIMES ACT 1961 (the ‘Crimes Act’) provides that:
(1) Incest is sexual intercourse between—
(a) Parent and child; or
(b) Brother and sister, whether of the whole blood or of the half blood . . . ; or
(c) Grandparent and grandchild—
where the person charged knows of the relationship between the parties.
(2) Every one of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 10 years.
282 The second schedule of the Marriage Act 1955 (Marriage Act) sets out forbidden marriages:
1. A man may not marry his—
(1) Grandmother: (11) Son’s wife:
(2) Grandfather’s wife: (12) Sister:
(3) Wife’s grandmother: (13) Son’s daughter:
(4) Father’s sister: (14) Daughter’s daughter:
(5) Mother’s sister: (15) Son’s son’s wife:
(6) Mother: (16) Daughter’s son’s wife:
(7) Stepmother: (17) Wife’s son’s daughter:
(8) Wife’s mother: (18) Wife’s daughter’s daughter:
(9) Daughter: (19) Brother’s daughter:
(10) Wife’s daughter: (20) Sister’s daughter.
2. A woman may not marry her—
(1) Grandfather: (11) Daughter’s husband:
(2) Grandmother’s husband: (12) Brother:
(3) Husband’s grandfather: (13) Son’s son:
(4) Father’s brother: (14) Daughter’s son:
(5) Mother’s brother: (15) Son’s daughter’s husband:
(6) Father: (16) Daughter’s daughter’s husband
(7) Stepfather: (17) Husband’s son’s son:
(8) Husband’s father: (18) Husband’s daughter’s son:
(9) Son: (19) Brother’s son:
(10) Husband’s son: (20) Sister’s son.
3. The foregoing provisions of this Schedule with respect to any relationship shall apply whether the relationship is by the whole blood or by the half blood.
4. In this Schedule, unless the context otherwise requires, the term “wife” means a former wife, whether she is alive or deceased, and whether her marriage was terminated by death or divorce or otherwise; and the term “husband” has a corresponding meaning.
283 The Adoption Act provides that the adoptive parents are the parents of the adopted child and the birth parents are no longer parents, except for provisions of the Crimes Act relating to incest and the Marriage Act provisions relating to prohibited degrees of marriage.[312]
284 Adoption creates new family relationships based upon legal and social ties rather than biology. The obscuring of family relationships creates some difficulties in interpreting the law of incest and the law relating to prohibited degrees of marriage.
285 The court has the discretion to consent to a marriage within the prohibited degrees if the relationship is one of affinity (by marriage) rather than of consanguinity (descended from the same ancestor).[313] Case law about the way that this discretion applies to adopted persons and the adoptive family has varied.
286 In an application by an adoptive brother and sister to marry (where the male had been adopted at age 20) Haslam J found that the effect of section 16 of the Adoption Act was to deem the pair “brother and sister”. As such, they fell within the prohibited degrees of marriage set out in the Second Schedule to the Marriage Act. Haslam J stated that:[314]
they are within the prohibited degrees of consanguinity appearing in the Second Schedule in that, in law, they are brother and sister. Furthermore, they do not fall within any degrees of affinity . . . it is all too clear that I have no jurisdiction to grant the consent sought.
287 In An Application by Barlow and Hohaia[315] the Court had to consider whether it could consent to the marriage of an adopted woman to her adoptive uncle. Gallen J noted that if he were to apply the reasoning of Haslam J, there would be no power to consent to the marriage as it would offend against the degrees of consanguinity. However Gallen J questioned whether the couple were in fact within the degrees of consanguinity. Section 16(2)(b) of the Adoption Act provides that for the purpose of the crime of incest and the prohibited degrees of marriage, the adopted child shall not be deemed to cease to be the child of his birth parents. Gallen J considered that this section was significant in that it suggests that the restrictions relating to forbidden marriage are considered necessary to prevent marriages where the blood relationship is too close. Gallen J concluded that for the purposes of the Marriage Act, the adoptive child does not cease to be the child of the birth parents, and therefore the applicants were not within the prohibited degrees.
288 What Gallen J did not examine was the possibility that section 16(2)(b) really creates two sets of parents for the purposes of the crime of incest and the
law relating to forbidden marriages. The retention of the natural parents in section 16(2)(b) for the purposes of incest and forbidden marriage does not necessarily mean that the adoptive parents are not also considered parents for this purpose. Otherwise there would be no barrier to an adoptive parent marrying an adoptive child, which instinctively seems wrong.
289 The application of the crime of incest to adoptive relationships is similarly obscure. Section 130 of the Crimes Act provides that:
(1) Incest is sexual intercourse between—
(a) Parent and child; or
(b) Brother and sister, whether of the whole blood or the half blood . . . ; or
(c) Grandparent and grandchild–
where the person charged knows of the relationship between the parties.
290 Where a person is adopted the requirement of knowledge may not be satisfied as an adoptive person may not be aware of the identity of all such relatives.
291 The status of the natural parents is preserved in section 16(2)(b) for the purposes of the crime of incest. If Gallen J’s reasoning in Application by Barlow[316] was applied then members of an adoptive family might not be able to be found guilty of the crime of incest.
292 New Zealand’s laws on forbidden marriage and incest derive from English legislation, which in turn derives from Leviticus 18:7–18. What is important is why the laws are on the statute book today. We suggest that there are two main reasons:
• the protection of the integrity of the family; and
• the genetic effects of incest.
293 It cannot be said that the laws of incest and forbidden marriage are maintained for one of these reasons alone. The categories are closely linked.
294 The genetic argument focuses on blood ties rather than the fact of a family relationship. Hereditary disabilities or diseases are believed to be more likely to occur through inbreeding, although statistics do not always bear this out. Therefore society places strict limitations upon the degrees within which related persons can marry and incest is prohibited.
295 Section 130 of the Crimes Act makes it clear that the genetic argument is an important factor. The section refers to brothers and sisters “whether of the whole blood or half blood”, and to the Marriage Act which provides[317] that persons not within the defined degrees of consanguinity but within the degrees of affinity may apply to the High Court for consent to their marriage.
296 Logically, genetics cannot be the sole determining factor, as contraception can prevent the birth of children to such relationships.
297 The integrity of the family is the element that needs to be added to the above reasoning in order to justify the prohibitions. The United Nations stated in 1994 that the “family constitutes the basic unit of society”. It is crucial to the development and nurturing of its individual members.[318]
For most people a family is a place where they wish to belong and feel secure, where they are accepted and acknowledged, loved and cared for. But the most crucial need is for society to ensure that families are stable and healthy, and that members accept responsibility for one another, as they are the most effective defensive structures against marginalisation, frustration and want. At times of crisis, social tension and personal problems the first place from which help is usually sought is within the family. The family has the potential for being the best institution for the nurture of children and for intimacy between adults.
298 Incest threatens the security and the stability of the family unit. Marriage within close family relationships is seen as undesirable for the same reasons. The Scottish Law Commission in its report on the law of incest observed that incest could give rise to psychological or other direct harm, a breakdown of trust within the family and may sometimes result in disruptive rivalries.[319]
299 These concepts apply equally to families linked by an adoptive relationship and those that are linked by consanguinity.
300 How adoptive relationships should be treated by the laws of incest and prohibited degrees of marriage is primarily determined by the weight given to the sanctity and integrity of the family relationship. The strength of feeling about these issues may vary according to the particular adoptive relationship. For example, there would be few compelling reasons to treat a child adopted at birth any differently to a child born to the same parents. However, if the situation involved a step-parent adoption, the child was 15 years of age at the time of adoption, there was a step-brother or sister who was of no blood relation to the child, and that sibling by adoption did not live within the family unit, it would be more difficult to explain why they should not be allowed to marry.
301 We believe that there is validity in deeming that adoptive relationships are relationships within the degrees of affinity for the purposes of the prohibited degrees of marriage. However, in any family, whether involving adoption or not, the relationship between parent and child is sacrosanct. We do not believe that there is any reason why the relationship between an adoptive parent and an adopted child should be treated any differently from that of a biological parent and child. As was stated by Fisher J in S v Police with regard to incest:[320]
[T]he essence of the offence is the negation of parental responsibilities assumed in this situation. The parents having adopted this child, it is unfortunate that it should even be suggested that in some way culpability is reduced merely because an adoptive relationship is involved.
302 The parent/child relationship should be an exception to the assumption that adoptive relationships are within the degrees of affinity, and should be deemed to be within the degrees of consanguinity.
Should adoptive relationships be deemed to be within the degrees of affinity but not consanguinity?
Should the parent/child relationship be considered an exception and be deemed to be within the degrees of consanguinity?
303 It would be possible to empower the High Court (or Family Court) to consent to a marriage between such persons in accordance with section 15(2) of the Marriage Act. However section 15(2) would need to be amended in the following manner in order that this occur:
• Remove from the text of section 15(2) the qualification that the High Court must be satisfied that “neither party to the intended marriage has by his or her conduct caused or contributed to the cause of the termination of any previous marriage of the other party”. Arguably this provision is archaic and serves no purpose – there is no longer requirement that a party prove fault in order to obtain a dissolution,[321] nor for most purposes[322] does the Court take into account a party’s conduct when determining matrimonial property shares.
• If, had the parties been biologically related, the relationship would be considered to be a relationship of consanguinity, the Court must consider:
– the age at which the child was adopted;
– the other party’s role and degree of participation in the family unit; and
– the need to protect the sanctity and integrity of the family relationship;
in order to determine that the proposed marriage is not repugnant to morality.
Should the court be required to take into account certain considerations when deciding whether to consent to a marriage between those related by adoption?
304 The crime of incest expresses society’s condemnation of sexual relationships between those related by blood because of the destructive nature of incest upon the integrity of the family unit. The applicability of the offence to adoptive relationships entails more difficult issues.
305 The parent/child relationship should be regarded as sacrosanct, whether adoptive or natural. No change should be made to the present law of incest in this respect. The provisions with regard to brother/sister incest are expressed in terms of blood relationships. As far as we are aware the issue whether an adoptive relationship would be encompassed by this provision has not yet been determined by the courts. Because of the varying circumstances of adoptive sibling relationships, it is difficult to set hard and fast rules. There are some circumstances in which a relationship between an adoptive brother and sister will be so repugnant to morality that society would want the crime of incest to apply, in others society might not have a problem at all.
306 One option is to apply the same recommendations contained in paragraph 303 when determining whether incest has been committed:
– the age at which the child was adopted;
– the other party’s role and degree of participation in the family unit; and
– the need to protect the sanctity and integrity of the family relationship;
in order to determine whether the sexual relationship is repugnant to morality.
307 But the criminal law needs to be certain. It would be wrong to define an act as criminal when it is not possible to determine its criminality until a court has assessed the circumstances. The fundamental criminal element of mens rea, or intent to commit the crime, would of necessity be missing.
308 On this basis we invite submissions whether, with regard to adoptive relationships the crime of incest be restricted to the parent/child relationship.
In the case of adoptive relationships, should the crime of incest be limited to the parent/child relationship?
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