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Penal Code 285 PC - Incest Laws in California

California Penal Code 285 PC is the law that makes incest a crime. Marriage or sexual relations between close relatives is a felony that carries up to three years imprisonment and a fine of up to $10,000.

The types of relatives who are prohibited from marrying or having sexual intercourse with each other include parents and children, grandparents and grandchildren, brother and sister, half-siblings, uncles and aunts, etc.

Penal Code 285 PC - Incest Laws in California
PC 285 prohibits incest, which is marriage or sexual intercourse between close relatives.

Notably, a lack of consent is not a factor in this crime, meaning you can be guilty of PC 285 incest even if both people consented to the sexual relationship.

One of the main reasons incest is a crime is that inbreeding between people who are too closely related genetically might result in birth defects. There are different parameters between states as to what constitutes an incestuous relationship based on morality, genetic similarity, etc. 

PC 285 says, “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.”

Simply put, marriage or sexual relations between close relatives are a felony crime even when there is consent from both parties. A conviction could result in a requirement to register as a California “tier-two” sex offender for at least 20 years.

What Factors Must Be Proven to Convict? 

California defines the crime of incest as either marrying or having sexual intercourse with a close family member. To convict you, the district attorney must prove all the elements of the crime beyond a reasonable doubt, such as the following:

  • You married or had sexual intercourse with someone.
  • You both were at least 14 years old at the time.
  • You and the other person were related in an incestuous way, such as a brother and sister, etc. 

Sexual intercourse refers to any penetration of the penis of one person with the vagina or genitalia of the other, no matter how slight. Ejaculation or an orgasm is not required. Notably, only sexual intercourse is a crime under the incest laws; other types of sexual activity are not, such as oral copulation, etc. 

However, other criminal laws might apply depending on someone's age, such as Penal Code 261.5 PC statutory rape and Penal Code 288 PC lewd acts with a minor under 14.

Incest – Quick Facts 

  • Incest is only defined as occurring between relatives aged 14 or older.
  • You may be charged with PC 261.5 PC statutory rape if you have consensual sex with a relative who is under 14.
  • Being married in an incestuous relationship is considered incest, even if there is no sexual activity.
  • A marriage ceremony between incestuous relationships is treated the same as sexual intercourse.
  • The reason for California's incest law is due to genetic inbreeding, which causes a high rate of birth defects.
  • Only sex acts (intercourse) that can result in pregnancy are considered incest.
  • Incest is a crime even if both parties consent to the relationship.

Which Type of Relationships Are Incestuous?

California's incest law is primarily concerned with sexual relations between people who are closely related genetically. Therefore, the law identifies sexual intercourse or marriage between any of the following relatives to be incestuous:

  • Parent and child.
  • Grandparent and grandchild.
  • Brother and sister.
  • Half-brother and half-sister.
  • Uncle and niece.
  • Aunt and nephew.

Some relations are not considered incestuous, such as those far enough apart genetically, such as the following: 

  • Stepparents and stepchildren.
  • Stepbrothers and stepsisters.
  • Adopted siblings.
  • First cousins.
  • Half-uncle and half-niece.
  • Half-aunt and half-nephew.

What Are the PC 285 Penalties?

Incest in California is a felony that carries the following penalties if convicted.

  • Sixteen months, two or three years in state prison.
  • A fine of up to $10,000.
  • Formal felony probation.
  • Required registration as a tier-two offender on California's sex offender registry for at least 20 years. 

California Senate Bill 384 created a three-tier registration system.  You must register with the local police, and it must be renewed:

  • Every year within five working days of your birthday and
  • Every time you move to a new residence.

Suppose you fail to meet this requirement. In that case, you could be charged with a separate crime of failing to register as a sex offender (Penal Code 290 PC).

What are Related Crimes?

Several California laws are related to Penal Code 285 incest, such as the following:

  • Penal Code 281 and 283 PC bigamy. This law makes it a wobbler crime to marry one person while you are still married to another, even when both parties consent. If convicted of a felony, you face up to three years in state prison.
  • Penal Code 288.5 PC continuous sexual abuse of a child under 14. This law makes it a crime to live with or have constant access to a child over three months or longer and commit three or more acts of substantial sexual conduct or lewd acts. A conviction carries six to 16 years in state prison.
  • Penal Code 261.5 PC statutory rape. This law makes it a crime to have sexual intercourse with someone under 18, regardless of consent, like incest. The penalties depend on the relative ages. It's a misdemeanor with a maximum jail sentence of six months if the age difference is three years or less. A wobbler (misdemeanor or felony)  with a maximum jail sentence of three years if the defendant is over three years older than the victim. A wobbler with a maximum jail sentence of four years if the defendant is older than 21 and the victim is under 16.

What Are the PC 285 Defenses?

Incest charges are serious, but our California sex crime defense attorneys can use different strategies to obtain the best possible outcome, such as the following:

  • Lack of knowledge.
  • You were a minor.
  • False allegation.

Of note is that a lack of consent is NOT an element of the crime to be found guilty of violating this law. In other words, even if both parties consented to the sexual relationship, you can still be found guilty.

Maybe we can argue that you did not know you were related. In other words, perhaps you were engaged in an incestuous relationship without knowing you were related to the other person. 

Maybe we can argue that you were under 18 when the relationship began, and the other person was an adult. This means you should be less responsible than an adult. The district attorney might be willing to drop the charges.

Maybe we can argue that you were falsely accused. Perhaps estranged spouses or family members are making false accusations of incest out of anger or jealousy. Perhaps we can persuade the prosecutor that they have insufficient evidence to obtain a conviction. Contact us for more information. The Hedding Law Firm is based in Los Angeles, CA.

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