Request By:
Mr. Richard C. Phillips
Assistant Regional Attorney
Department of Health, Education
and Welfare
101 Marietta Tower
Atlanta, Georgia 30323
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask for an interpretation of the incest statute, KRS 530.020(1), and whether or not KRS 530.020(1) prohibits the marriage of a father and his adopted daughter.
KRS 530.020 reads:
"(1) A person is guilty of incest when he has sexual intercourse with a person whom he knows to be an ancestor, descendant, brother or sister. The relationships referred to herein include blood relationships of either the whole or half blood without regard to legitimacy, relationship of parent and child by adoption, and relationship of stepparent and stepchild.
"(2) Incest is a Class C felony."
The former statute on incest was KRS 436.060, which read:
"Any person who carnally knows his or her father, mother, child, sister or brother, knowing such a relationship to exist, shall be confined in the penitentiary for not less than two nor more than twenty-one years."
KRS 436.060 was repealed by Acts 1974, Ch. 406, § 336, effective January 1, 1975. That statute is identical with Carroll's Kentucky Statute § 1219 (1893, Ch. 182, p. 756, § 92).
KRS 530.020 was enacted in Acts 1974, Ch. 406, § 258, effective January 1, 1975.
Under KRS 436.060, where a man was convicted of incest practiced on his daughter, the court wrote this, in
Cecil v. Commonwealth, 140 Ky. 717, 131 S.W. 781 (1910), at page 782:
"This statute was passed for the good of society - the elevation and betterment of mankind. It cannot be that it was intended to punish illicit intercourse between father and daughter if the daughter was born in lawful wedlock, and not punish such intercourse where the daughter was born out of lawful wedlock. In each case the relationship is the same, and the statute was intended to prevent sexual intercourse between persons occupying this relationship."
As concerns KRS 530.020, it is our opinion that the statute provides that a person is guilty of incest when he or she has sexual intercourse with a person whom he knows to be an ancestor, descendant, brother or sister. The prohibited relationships involved in sexual intercourse include three categories: (1) blood relationships of either the whole or half blood without regard to legitimacy; (2) the relationship of parent and child by adoption; and (3) the relationship of stepparent and stepchild.
This is the only construction which makes good sense. It can be seen that the new statute carries forward the construction of the earlier statute in Cecil v. Commonwealth, above, in connection with the legitimacy issue. The statute makes it clear that if the relationship involves whole or half blood, the question of legitimacy of issue is immaterial. The word "legitimacy" is an object of the preposition "to" following the word "regard".
Thus it can be readily seen that in the second sentence of KRS 530.020(1) there are three categories in series which are the objects of the verb "include": (1) The blood relationship category; (2) the parent and child by adoption; and (3) the stepparent and stepchild relationship.
The 1974 incest statute, KRS 530.020, as the commentary suggests, extends the prohibited relationships to include not only blood and half blood relationships but the affinity (marriage) relationship of stepparent and stepchild and the affinity or nonaffinity relationship of parent and child by adoption. In Kentucky any person over 18 may adopt a child or adult.
We come now to the question as to whether the criminal incest statute, KRS 530.020(1), would prevent in practical effect a valid marriage, when considering KRS 402.010, the marriage incest statute.
KRS 402.010 provides that no marriage shall be contracted between persons who are nearer of kin to each other by consanguinity, whether of the whole blood or half blood, than second cousins.
Baker v. Thomas, 272 Ky. 605, 114 S.W.2d 1113 (1938). Such prohibited marriages are incestuous and void as a civil matter. See the earlier form of this statute, Carroll's K.S. § 2096 and 402.010, enacted in 1942.
In 41 Am.Jur.2d, Incest, § 1, p. 512, this is written concerning the underlying public policy in regards to incest laws:
"The laws against incest are designed to protect the family relationship, and its rights, duties, habits, and affections, from the destructive effect of family intermarriages and domestic licentiousness. To provide the family with such protection, the nations of the world, following the Levitical law, have, by specific statutory enactment, prohibited marriages and sexual intercourse between those closely related by blood or marriage. "
The dramatic difference between KRS 402.010 and 530.020 is that the criminal statute is designed to protect against blood relationships and the adoption and stepparent situation. The marriage statute covers only the blood relationships.
The practical question here is whether a person legally married under KRS 402.010 could be legally subject to prosecution under KRS 530.020? For if so, a person could not validly pursue the ordinary course of marriage. In other words, is a valid marriage under KRS 402.010 a defense to a charge of incest under KRS 530.020?
Here are reasons that a valid marriage under KRS 402.010 would be a defense for a prosecution under KRS 530.020. The marriage statute should be held efficacious since a valid marriage implies freedom of sexual intercourse. The criminal statute is concerned with sexual abuse of young dependent persons by their relatives. The marriage statute, standing alone, would permit the marriage of a person in the stepparent or adoption relationship, provided the kinship is no closer than that of second cousins. A fortiori it would permit such relationships where there is no blood relationship. Under KRS 510.010(3) "marriage" means persons living together as man and wife. Under KRS 510.010(8) "sexual intercourse" is limited to sexual intercourse between persons not married to each other. It is true that Chapter 510 relates to sexual offenses, but so does Chapter 530 in part in dealing with family offenses.
The courts are inclined to uphold a marriage unless statutes or public policy dictate to the contrary, since it is favored by public policy and the law. "A statute will not be construed to make a marriage void unless the legislative intent to such effect is clear and unequivocal." 52 Am.Jur.2d, Marriage, §§ 3 and 103.
A support of the view that marriage would negate the existence of the incest offense is the principle that a statute imposing criminal sanctions should be strictly construed against criminal liability. See
United States v. Dalpiaz (U.S.C.A. -6, 1975) 527 F.2d 548, 552; and
United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971).
The other side of the coin is that the definitions of "sexual intercourse" and "marriage" in KRS 510.010 are expressly declared to apply to KRS Chapter 510 [sexual offenses]. Nothing is said about KRS Chapter 530 [family offenses]. Thus the marriage of such persons in the described relationships is one thing, and the incest law, KRS 530.020, is another. Under that view, the potentiality for prosecution of such married persons under the incest statute would practically deter such persons from ever marrying each other. There is nothing in KRS 530.020 suggesting that marriage is a defense. See 41 Am.Jur.2d, Incest, §§ 1 and 11 as to defenses to a charge of incest.
Since KRS 530.020 extends incest beyond the blood relationship concept covered in KRS 402.010, and since it is the later expression of legislative will, KRS 530.020 should govern in this ambiguous situation. For the statutes are wholly irreconcilable. It is an elementary rule that whenever in the statutes on any particular subject there are apparent conflicts which cannot be reconciled, the later statute controls.
Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400.
KRS 402.010 should not be used as shield to circumvent the clearly expressed criminal law of KRS 530.020.
When considering that in KRS 530.020 the legislature clearly prohibits sexual intercourse between persons in the relationship of parent and child by adoption and of stepparent and stepchild, the courts might very well hold that persons in those relationships engaging in sexual intercourse would come under the statute, regardless of whether they are living under a marriage incestuous or non-incestuous under KRS 402.010 [marriage law].
Under this state of the law, we decline to rule on the precise point of whether a valid marriage under KRS 402.010 would be a perfect defense for incest under KRS 530.020. We believe that is a matter for the courts, or the legislature (if they wish to amend KRS 402.010 to include in prohibited marriages the parent and child relationship by adoption and stepparent-stepchild.