I. California Penal Code 285: Incest

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Legal Definition: 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.

For a person to be convicted of a violation of PC 285, the prosecution must prove the following:

1. You had sexual intercourse with another person;
2. When you did, you were at least 14 years old;
3. The other person was at least 14 years old at the time of sexual intercourse; AND
4. You and the other person are related to each other.

II. What does this mean?

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Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. In addition, the person you are having sex with must be related to you in one of the following ways:

1. A blood relationship between a child and a parent (father/mother);
2. A blood relationship between full siblings (brother/sister);
3. A blood relationship between grandparent and grandchild;
4. A blood relationship between great-grandparent and great-grandchild;
5. A blood relationship between aunt or uncle to niece or nephew;
6. A half-blood relationship between siblings (step-sister or step-brother); or
7. A half-blood relationship between aunt or uncle to niece or nephew.

Note: This section does not apply to sexual relationships or marriage between cousins, adopted siblings, or stepparent and stepchild.

III. Penalties

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If convicted of a violation of PC 285, you could be sentenced to State Prison for upwards of sixteen months, two years, or three years. You would be required to serve 50% of that sentence. The charge is not a wobbler offense, so you would not be able to obtain a misdemeanor under this code section. You would be required to register as a Sex Offender for 10 years under the Tier I system.

IV. Common Defenses

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1. Statute of Limitations
2. Insufficient Evidence
3. Mistake of Fact
4. Violation of your Rights
5. False Accusations
6. Coerced Confessions

The most common defense to these charges is a good faith belief that you were not aware of the relationship status between you and your family member. Although as of the writing of this post, there have been no proven cases in California that can show this having occurred. But it is of course probable, given how far back people’s lineage can be.

V. Call Today

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