FEBRUARY 11, 2015
THERE ARE FEW moral absolutes left to us these days, but one we all seem to accept, nearly without question, is that incest is absolutely wrong. Incest evokes in us a visceral disgust that escapes easy explanation. But this is not to say that many thinkers have not tried to explain it. Freud, who has taught us more about incest than anyone else, wrote in Totem and Taboo that “we are ignorant of the origin of the horror of incest and cannot even tell in what direction to look for it,” in part because we choose to obscure its origins. Other contradictions seem at play, too. “Distaste or disgust involves a rejection of an idea,” Immanuel Kant wrote in 1798 in Anthropology from a Pragmatic Point of View, “that has been offered for enjoyment.”
This was certainly the case a few weeks ago when New York magazine published a voyeuristic interview with an anonymous 18-year-old woman from “the Great Lakes region” who claimed to be engaged in a consensual sexual relationship with her father, a relationship that she said would lead to marriage and children. Incest produces disgust and moral revulsion when abusive and/or reproductive, but there seems to be a special kind of disgust reserved for consensual incest, an incest marked not by trauma but by love and sentimentalism.
The New York Magazine story has become a national and international sensation (I was first informed of it when someone sent me an article from the Daily Mail in England), but the voices of disgust were loudest in New Jersey, where the woman said she and her father-lover-husband were planning to move. As she put it, “We plan to move to New Jersey where we can be safe under the law, since adult incest isn’t illegal there, and once I’m there I’ll tell everyone.”
Less than a week after the interview was published, Republicans and Democrats announced plans to introduce legislation banning adult consensual incest, which had been decriminalized in New Jersey in 1979. “Obviously,” said one Republican legislator, “these types of relationships violate our acceptable moral standards and should be banned.” A Democrat agreed, saying, “prohibiting this is certainly something everyone agrees upon.” And days later another Republican said incest is “so absurd and so offensive that no one would expect to have it.” A columnist for the Asbury Park Press titled her column “Incestuous ‘love affair’ is absolutely horrific.” The horror, the disgust, the necessity for a legal ban is treated as axiomatic, but, perhaps unsurprisingly, no one wonders why.
But it is worth wondering why. That does not mean we should object to the incest prohibition itself. What I do mean is that, despite our sense that the incest taboo is universal, beyond question, it is in fact neither consistent nor universal. Its meaning varies over time. Despite the general response, New Jersey is not alone in allowing such relations — both Michigan and Rhode Island have actually repealed laws prohibiting consensual incestuous sex. And this is not a unique development. The prohibition of incest has existed across cultures and epochs, but it has varied in significant ways to perform specific political, social, and moral work at specific moments. And we should be willing to ask: what cultural work does our incest taboo perform?
Since the 19th century, incest has been wrapped up in particular changing ideas about the liberal individual and bourgeois family. Counter to some conventional assumptions about 19th-century prudery, this bourgeois family was highly eroticized in ways we are still coming to terms with today. Our unwillingness to question this history plays out in the vague reporting of how New Jersey came not to have a prohibition on consensual incest — most news reports quote a New Jersey attorney who claims surprise that the statute was not enacted and suggests that it was simply left blank when the law was reformed in 1979. This vagueness, in turn, obscures the way in which incest was remade as a form of sexual violence by feminist psychologists and legal activists in the 1970s and 1980s.
Thus, this seemingly universal prohibition that sustains moral order in the world is nothing of the sort. Incest prohibitions, in other words, change over time and express different social and cultural meanings when they do. Perhaps for us, the horror and disgust of incest serve to assure us that in these troubled times of relativism there is at least one thing, across cultures and epochs, that we can rely on.
The 19th-century family and the liberal individual
In the 19th-century United States, the meaning of incest had to do with complicated concerns about the middle-class family. Now a cornerstone of US political life, the middle-class family — in its modern form as a cultural center of feeling, class, and consumption — had not existed in previous eras. And this new bourgeois experience of family, in its sentimentality and its encouragement of effusive affection, was both valued as a source of national morality and feared as a dangerous nest of eroticism. Freud’s famous “Oedipus complex” offers the most famous articulation of what might generate this fear; he described the family as engaged in the constant solicitation and refusal, through repression and foreclosure, of incest. As Freud wrote in Three Essays on the Theory of Sexuality, “sexual love and what appears to be non-sexual love for parents are fed from the same sources; the latter, that is to say, merely corresponds to an infantile fixation of the libido.”
Freud’s were not just arcane theories. Although 20th-century moralists like Christopher Lasch would describe the family as an innocent escape from vice, a “haven in a heartless world,” 19th-century United States was rife with evidence for the sexual tensions Freud described. In 1827, for example, the Dutch Reformed minister Alexander McClelland figured the family as an incestuous brothel:
Let us imagine such a Society, differing in no respect from ours, but in the circumstance, that these persons [family relatives] are allowed to intermarry, without the least opprobrium or criminality being attached to such a connection. That is to say, they are taught from earliest infancy to view each other in reference to the sensual appetite, exactly as they view strangers of a different sex, whom they are forbidden to touch indeed now, — before certain forms and ceremonies are passed through, called the “Marriage rite”; but after that, gratification is perfectly innocent and even praiseworthy. Would not every family become a school of abominable impurity, where the youthful mind would be initiated in the worst mysteries of vice, and long before it obtained years of discretion, turn out a giant in profligacy? What natural virtue could resist the constant, the ever pressing temptations of such a situation?
McClelland, it’s worth noting, wrote this in response to a controversy that wracked Protestant churches in the early 19th century concerning whether or not the marriage of a man to his wife’s sister was incestuous, which suggests both the historically shifting parameters of the prohibition and the anxieties attendant upon the family romance. Moreover, his suggestion that the only thing stopping constant sex between family members was a clearly articulated incest prohibition points just how closely intertwined family and sex had become.
If McClelland was worried that the family was already too eroticized, from another precinct we find a concern that the family was not nearly eroticized enough. By the middle of the 19th century, phrenology, the science of measuring the skull to determine the inner constitution of humankind, had achieved wild popularity among the middle class. One of the key personal qualities phrenologists tracked was “amativeness,” or sexual desire. And some of the most prominent phrenologists were concerned that amativeness was not prominent enough.
Orson Fowler, perhaps today the most famous of the 19th-century phrenologists, actually encouraged erotic relations between parents and children to prevent the diminution of this “amative” faculty. While analyzing “a really superior female head,” the woman attached to the head informed Fowler that despite her perfect head, she had trouble maintaining relationships with men. Fowler immediately deduced that she had had a distant relationship with her father, which she confirmed. “Your love sentiment has thus become, from pure starvation,” Fowler told her, “quite like a dyspeptic’s stomach — craving, yet qualmish.” The woman asked if there was any remedy to this situation, and Fowler responded affirmatively. “Sweeten up,” he told her, “Make love to your father. Turn coquette.” Fowler’s advice comes from a place similar to Freud’s observation that sexual and nonsexual love of parents derive from the same source.
Nineteenth-century examples of incest, as both threat and possibility, are legion. In Herman Melville’s Pierre; or, The Ambiguities, we learn, among many other things about incest, that “much that goes to make up the deliciousness of a wife, already lies in the sister” and that “a reverential and devoted son [is] lover enough.” Or, to take but one other example, Richard Hildreth’s 1836 antislavery novel, Archy Moore, the White Slave, where the eponymous character describes his mother “more like a lover than a son … and many an hour have I watched her, almost with a lover’s earnestness, while she fondled me on her lap.” The bourgeois, sentimental family teetered, precisely in its affections, its loving cathexes, on the precipice of incest.
What was different in the 19th century that made the pressure of incest seem so vivid? It’s not so much that families in earlier periods were not confronted with incest. Instead, it’s that the feeling meant something different to those families. Nineteenth-century cultural norms that emphasized sentimental affection and effusive love had not been animating features in earlier times.
But that sentiment and effusion are still with us now. This is because the modern subject, the individual whose political relevance both the right and the left, though in different ways, extoll, is fundamentally conditioned by the bourgeois family. The bourgeois family cannot be the site of intimacy that it is without the hovering threat of incest; thus, the modern individual, too, is never free from the threat of incest. And it is this complicated relation to the eroticized family that contemporary axioms of disgust repress.
Evidence of the eroticized family’s continued cultural relevance is easy to find. Take for instance a 2005 account of familial affection in the “Modern Love” column in The New York Times. “In restaurants I often feel as if my son and I are participating in an elaborate courtship ritual,” the journalist Linda Baker writes, “one that is better suited to the one-horned rhinoceros or some such species.” Not only does Baker suggest that this affection is incestuous — “I entertain the occasional worries about playing Jocasta to my son’s Oedipus,” she writes later — but the invocation of the rhinoceros suggests that she may be toying with the limits of being human. To ensure that her family is not incestuous and that she is fully human, Baker institutes a set of regulations disciplining physical affection. It is traumatic for all, and it barely conceals the erotic longing. Her children are angry with her, and she wonders, “When will I stop taking such delight in my children’s bodies: the perfect legs, the arms, that hair, those eyes?”
The specter of incest haunted the bourgeois family, but it did not always lead to calls for prohibition. In fact, for some commentators, prohibition was taken to unfairly limit the inalienable rights of the liberal individual, the political subject of Western modernity. The conflict between the safety of the family and the rights of the individual are to this day at the heart of discussions of incest. In Germany, for instance, where there have been not infrequent petitions to courts to allow sibling marriages, the German Ethics Council, an advisory body to the federal government, stated in 2014, “the fundamental right of adult siblings to sexual self-determination is to be weighed more heavily than the abstract idea of protection of the family.” Put differently, the liberal individual has the right to incest.
The German Ethics Council is an anomaly, in some sense, in that it prescribes incest as a right of the individual citizen. Which is not to say others have not associated incest with the liberal individual — it’s just that most see it as a problem, not a right, of unrestrained freedom. But the conflict is there. This was perhaps best captured in an anonymously authored 1848 novel, The Life of Dr. Richard Jennings, the Great Victimizer. The titular character vowed himself an enemy of all society and set about robbing, poisoning, murdering, and seducing everyone he came across. In a particularly telling passage, Jennings likened himself to the common man of mid-19th-century America, the liberal individual. Jennings trumps his absolute freedom: “I act according to will, feeling, and passion, respecting law and custom only inasmuch as they served to assist me in carrying out my grand designs.”
That his life of crime ends when he accidentally seduces his younger sister, whom he had not seen for 15 years, brings us to the current controversy in New Jersey. Why was it that Jennings was willing to do anything, but not incest? The revelation that the sex of the family finds you, even years after you have left your family behind, was, apparently, too much to bear for Jennings.
To move into the world as individuals, we must leave our families behind — but this raises the concern that we will find our families again, and feel differently about them than we did before. In our era, anxiety about natal alienation emerges in concerns about incest and sperm donation, for example. As the popularity of sperm donors increases yearly, some worry about “a risk of unwitting incest between half-siblings.” Since the 19th century, then, freedom from the burden of being overdetermined by one’s natal origin is as incestuous, it seems, as life in the prison house of the family.
Dwelling in this 19th-century history can show us how the universality of the incest prohibition — and, with rare exceptions, the prohibition of incest has existed in all cultures — can obscure its specific meanings at specific times. The political and cultural work the prohibition does in the modern United States is not the same work it is doing among the so-called “primitive” cultures that were the subject of early anthropology or Roman Egypt, where brother-sister marriage was prescribed.
Incest’s historicity is also apparent in the 1970s revision of incest law, which gave rise, among other things, to the situation in New Jersey. For the sake of convenience, we can discern two major moments of transformation: the long 19th century, in which laws prohibiting incest were shorn of their foundation in the Book of Leviticus; and the 1970s, when most of the incest laws in the United States were rewritten as a result of feminist activism, bringing incest, which had long been treated, in law, as a consensual act, under the penumbra of sexual assault statutes. The 1970s legal transformation, emphasizing incest as sexual violence, worked, inadvertently perhaps, to normalize, in fits and starts, consensual adult incest.
That New Jersey’s law differs from most other states regarding adult consensual incest should not, in and of itself, come as a surprise to anyone familiar with US family law, which is, for the most part, state based. In the 19th century, when, state-by-state, the biblical basis of the law was given up, the variation could be extreme. New York, for instance, had no law prohibiting incest until 1830. Colorado, instituting a law prohibiting incest upon becoming a state in 1876, actually had two separate incest prohibitions, one for residents of Colorado and the other for anyone living in the area of Colorado that had been part of Mexico prior to the Mexican-American War, who were to marry “according to the custom” of Mexico. (This bifurcation remains in part, the exception now for “Established customs of aboriginal cultures.”) The 1877 Ohio criminal code called seminal emission “an essential ingredient in the crime of incest,” thus making incestuous sex a crime only if the man reached orgasm. All of which is to say, if incest was prohibited in every state, what actually constituted incest was a rather ambiguous matter. In a world in which the family and the individual were increasingly figured as incestuous, anything like a unified incest prohibition was becoming more and more difficult to articulate.
Incest law in the 19th century, for the most part, treated incest as a consensual act — if convicted, both parties were guilty. While some states, like Ohio, had so-called “rape of daughter” statutes, these were anomalous, and were part of rape law, not incest law. While there were some changes in the law in the 20th century, the language of morality and biblical phrases like “carnal knowledge” continued to suffuse statutes. However, feminist activism in the 1970s led to a wholesale transformation of incest law as part of the reform of rape statutes.
Feminist activists in the 1970s and ’80s worked tirelessly to reform sexual assault law to better address the victims of sex crimes. While incest had been primarily a part of the civil law, which prohibited and continues to prohibit incestuous marriages, the reform of rape legislation worked to include incest in the criminal code. To take the case at hand, prior to rape reform legislation, father-daughter incest fell under three statutes: incest, statutory rape, and child abuse. It was not, in most states, a subject of the statutes concerning the most serious cases of sexual assault. Michigan was the first state, in 1974, to pass comprehensive rape reform legislation. Incest became a subcategory of rape, the most serious category of sexual assault, but only if the victim was between 13 and 16 years of age. Other incestuous relations with children younger than 13 were treated not as incestuous rape, but under statutory rape laws, which carried lesser punishment.
Unlike most states that followed, Michigan repealed its criminal incest statute in its entirety. New Jersey was one of the few states to follow suit, effectively decriminalizing adult consensual incest. This was perhaps the most radical effect (concerning incest) of rape reform legislation, but it was limited to just a few states. More states decriminalized consenting sexual activity between teenage relatives, provided the age gap was no more than three to four years, effectively legalizing brother-sister incest, at least for a short period of time. This situation remains in effect in several states, joined in 1989 by Rhode Island, which repealed all of its criminal incest laws (leaving the civil marriage prohibitions intact).
While New Jersey and Michigan were exceptions, the reconstitution of incest as sexual violence in the law was part of a self-conscious political strategy. The laws became sex neutral and the language was more clinical than moral, putting them in line with feminist psychology and social work, exemplified by Judith Lewis Herman’s landmark 1981 book Father-Daughter Incest. Consensual sex between relatives, while still prohibited in many states, was marginalized in favor of a legal attention to assault and abuse. And this emphasis on coercion worked to make consensual incest’s status as a transgression more and more ambiguous. Indeed, a 2006 Harvard Law Review article called for an exclusive focus on “nonconsent” in incest law, claiming that “incoherent or tautological references to ‘marriage’ and ‘family’ […] hinder the law’s ability to operate on the basis of legally coherent and normatively preferable scheme premised on nonconsent.”
The pending legislative action in New Jersey is symptomatic of our desire for foundational, unchanging moral absolutes governing sex and the family. The New York Magazine interview — which trades in nearly every trope of rural poverty and incest — threatens a middle-class fantasy of the family and sexuality — chaste and restrained — with the coming of incest. The ways that our disgust and moral revulsion have been expressed work to police the family, effectively obscuring the historical variation of the incest prohibition.
The absence of a ban on adult consensual incest, however revolting some might find it, is not an anomaly but the effect of the eroticized bourgeois family and liberal individual, both of which have been with us for more than two centuries. As states like New Jersey, Michigan, and Rhode Island decriminalize consensual adult incest, as the German Ethics Council claims incest is a fundamental right of the individual, as New York Times columnists speculate openly about the potentially incestuous quality of familial affection, we have to confront the fact that incest is, perhaps, becoming something new. If this is the case, it is not without precedent. Incest, I have been arguing, always has to be understood in its historical context. And our current context makes its own demands on what we expect the family to be, and not be.
 This idea has been most famously described by the French historian-philosopher Michel Foucault in The History of Sexuality, Volume I: “that since the eighteenth century the family has become an obligatory locus of affects, feelings, love; that sexuality has its privileged point of development in the family; that for this reason sexuality is ‘incestuous’ from the start.”
 Although unusual, the council was not the first to espouse this view: In 1795, in the midst of the revolutionary upheavals that gave us the modern liberal subject, the Marquis de Sade charted a similar course for the citizen, although the German Ethics Council would likely disavow this affinity. Writing in the bizarre pamphlet “Yet Another Effort, Frenchman, If You Would Become Republicans,” tucked away in Philosophy in the Bedroom, Sade argued that incest “loosens family ties and the citizen has that much more love to lavish on his country …. I would venture, in a word, that incest ought to be every government’s law — every government whose basis is fraternity.”
 The following draws heavily on Leigh B. Bienen, “Defining Incest,” Northwestern University Law Review 92 (Summer 1998), 1501-1640.