Factcheck: Mexican Laws Against Incest

by hilzoy

Yesterday, the Washington Post had an op-ed on rape which contains the following claim:

"In Mexico, for example, the rape of a teenage girl by her father is defined as voluntary until it is proved otherwise. Under most state criminal codes in Mexico, incest is considered a crime against the family, not against the physical integrity of the victim, and the underage victim is initially considered as much a criminal as the adult perpetrator."

This is appalling, if true. But is it true? It's hard for me to say: my Spanish might charitably be described as rusty, my Mexican legal research skills are nonexistent, and while I suspect that some worthy organization has a good database of international rape statutes, I haven't been able to find it. Still, I've written down what I've found. If I'm wrong, I hope someone will correct me. And if some one knows a good survey of the relevant laws, I'd be interested to read it.

The Mexican federal criminal code is here (pdf, sexual crimes are Articles 259-277). Unless I'm mistaken, the relevant section contains no presumption of consent:

"Articulo 272.- Se impondrá la pena de uno a seis años de prisión a los ascendientes que tengan relaciones sexuales con sus descendientes.

La pena aplicable a estos últimos será de seis meses a tres años de prisión.

And Article 266bis seems to say that the normal penalties for rape will be raised by half when various conditions obtain, including the rape of a child by his or her father.

As far as Mexican state law is concerned, I've checked the Federal District's (pdf, see Articles 174-182), Durango's (pdf, see articles 323 and 392-8) and Quintana Roo's (see Sec. 1, Title 4 and Sec. 2, Title 1) penal codes. (States chosen more or less at random from those that have their codes online.) In the Federal District, incest is defined as a crime against liberty, sexual security, and normal psychosexual development, not as a crime against the family. In Durango and Quintana Roo, it is considered under two headings: incest, which is a crime against the integrity of the family, and rape, which is a crime against liberty and personal security (Durango) or sexual liberty and its normal development (Quintana Roo). It is not true in any of these jurisdictions that having sex with one's children is defined solely as a crime against the family.

In all three states, incest is defined to include sex with one's parents; therefore, when someone above the age of consent has sex with her father, absent evidence of violence or coercion, she is considered to have committed incest, as is her father. If there is evidence that she did not consent, she is presumably not criminally responsible; if she did consent, however, that does not let her father off the hook for incest, as far as I can see.

Consent would, however, show that she was not raped. In all three states, sex with someone under the age of consent is defined as rape, and in all three states, as in the Federal Code, the penalty for rape is raised by half in the case of parents molesting children, but not for children who rape their parents. In all three states, however, consent by a person who is old enough to give it is a defense against a charge of rape, as one would expect.

The problem is the age of consent, which is twelve to fourteen in most of Mexico. That's why "in Mexico, for example, the rape of a teenage girl by her father is defined as voluntary until it is proved otherwise": because all sex by kids over twelve or fourteen is presumed to be voluntary. When I read the Post's op-ed, I took it to mean that Mexican law presumes that fathers have a right to have sex with their teenage children. In fact, it does not: incest is illegal even if both parties are over eighty, and rape is wrong at any age, though of course it can only be rape if the victim did not consent. What Mexican law does presume is that children of twelve or fourteen are competent to consent to sex. That is wrong, but it's wrong in a different way.

I checked this out because, as I said, I thought that if Mexican law did, indeed, say that teenagers raped by their parents are presumed to have consented, that would be appalling; but that if it did not say this, it would be worth correcting. Just as people ought not to be accused of certain things without good reason, so (it seems to me) entire countries should not be accused of having grotesque legal systems. (Obviously, though, enforcement is another matter entirely, and one that I have not been able to check.)

Comments

[CMatt]

I have a comment awaiting moderation in the, "The Disaster in Tennessee" thread.

[Pinko Punko]

Wow- that is still appalling on many levels because consent of course will always end up "he said/she said"- I guess the law just needs to be sensitive to all those dads seduced by their daughters. (sorry- this is just a gigantic WTF for me)

[Jesurgislac]

More to the point, because a girl is presumed to have consented to have sex, it can be extraordinarily difficult for a pregnant girl over the legal age to get an abortion. In Mexico, safe legal abortion is required to be available to women made pregnant by rape. But in practice, and especially when the rape victim is a young girl made pregnant as a result of incest that was presumed consensual, abortion is not permitted because, well, the law is that if it wasn't rape, the victim can't have an abortion.

From Human Rights Watch:

In theory, non-consensual sex between family members is penalized as rape. However, prosecutors do not always charge perpetrators of incest with rape, even where consent was clearly lacking or the victim was under the age of consent. In Guanajuato, for example, Human Rights Watch interviewed a woman who had been sexually abused by her father at least since the age of six – and who also faced criminal charges for “incest.” She had two children as the result of these rapes.

“Graciela Hernández” (victims’ names changed for protection), a 16-year-old girl in Guanajuato, was raped weekly for more than a year by her father. The official legal record from her complaint against her father in 2002 reads:

Then my father took me to a hostel.... He penetrated me, and it hurt a lot when he penetrated me. I cried and I said to my father that it hurt a lot.... I want to declare that I don’t want to have the child that I am expecting, because I will not be able to love it. Because it is my father’s, I will not be able to love it. (The authorities did not authorize a legal abortion.)

A triumph for the pro-life movement, of course. A tragedy, for anyone not a pro-lifer.

A similiar situation in Ireland a few years ago had a happier ending: a girl aged 14 who was pregnant as a result of repeated rapes by her father and uncles was a ward of the Irish government, and the Irish government, officially pro-life, took the position that the girl couldn't be permitted to leave Ireland to go to the UK because she would be doing so in order to have an abortion, and the Irish government couldn't support that. The end result was different from “Graciela"'s: the girl was allowed to go to London for an abortion, and it was definitely established that no EU government is allowed to prevent their citizens from leaving the country to seek medical treatment elsewhere.

But in Mexico, it looks as if the pro-life movement is in full control: forced pregnancy is the required penalty for having had sex, even (or especially) when the victim is a girl who clearly tempted her father to his undoing.

[Sapient]

The lead editorial lists spousal rape as the most prevalent problem. Even where it's criminalized, it's not prosecuted (or even reported by women who just endure it as a spousal duty). This is the ugly side of an institution we tend to idealize.

[Adrian]

I interpreted:
in the Federal Code, the penalty for rape is raised by half in the case of parents molesting children, but not for children who rape their parents.

to refer to adult children raping elderly parents. Which happens, and is rarely prosecuted anywhere. (Though other ways for abusive caregivers to take advantage of the helplessness that comes with old age are much more common.)

[Anne E]

This post got me wondering- how well does US law do in this area? My operating principle was, that given the power a parent has over a minor child there is no such thing as consexual sex between a parent and a child under 18. Since I'm not a lawyer, I used the Wikipedia article "Age of Consent in North America". This is what I found:

Thirteen states set the age of consent at less than 18 years, but set it at 18 years if one party is in a position of authority, including parents.

Six states set the age of consent at 18 years, period.

Two states have formulas for the allowable ages of sex partners that effectively prohibit parent/child sex (but might allow a loophole for a younger stepparent).

That's twenty-one states where a man can't have coercive sex with his daughter or stepdaughter.

Twenty-two states set the age of consent lower than 18 with no provision (at least according to Wikipedia) for prosecuting sex that results from abuse of parental authority.

Six states set the age of consent lower than 18, with a provision that forbids abuse of authority by school personnel, mental health professionals, foster parents, etc.- but do not extend the "abuse of authority" provision to parents.

That's twenty-eight states where you CAN have coercive sex with your 16 year old daughter or stepdaughter. Wow.

Two states were too confusing to categorize. Massachusetts sets the age of consent at 16, but it's illegal to seduce a 16 or 17 year old who leads a chaste life- how on earth can such a law be on the books in 2008? I'm incredulous.

Virgina appears to have conflicting laws- I couldn't figure out how Virginia law would work out in practice. However, one of these conflicting laws appeared to give a special exemption to ALLOW parent-child sex: "18.2-371. Causing or encouraging acts rendering children delinquent, abused, etc.; penalty; abandoned infant. Any person 18 years of age or older, including the parent of any child, who (i) willfully contributes to, encourages, or causes any act, omission, or condition which renders a child delinquent, in need of services, in need of supervision, or abused or neglected as defined in § 16.1-228, or (ii) engages in consensual sexual intercourse with a child 15 or older not his spouse, child, or grandchild, shall be guilty of a Class 1 misdemeanor." Who on earth, even in a previous century, thought that was an OK law to pass?

This is not a dead letter. I know of two cases where a man had sex with his 16 year old daughter/stepdaughter without legal consequences because it wasn't illegal where it happened. In neither case was the sex in any real sense voluntary on the teenager's part, but it wasn't forcible in the legal sense. Unfortunately, in both cases there was HUGE pressure from the teenager's mother to treat this as a private family matter (as if).

Bottom line: we need the law to say "no sex with your children or stepchildren before age 18" in all 50 states.

Jes, that's an unfair generalization about pro-lifers. I'm pro-life, and I'd regard both the cases cited above as unmitigated tragedies. (I'd agree that a young woman raped by a relative should be allowed an abortion, but it's still a horrible tragedy for both teenager and unborn child. Better by far to prevent the whole thing. And given the horrible history of allowing sexual abuse in chruch institutions in Ireland, I'm wondering if those fathers and uncles faced any consequnces?)

PS In the above summary, I ommitted the fact that many states allow "Romeo and Juliet" exemptions where people are not prosecuted for sex with someone under the age of consent if they are close in age. I didn't consider that relevant to the problem of sexually exploitive parents.

[Sapient]

Anne E is mistaken about Virginia law "allowing" parent-child sex. (I haven't researched other states, and doubt her conclusion about the other states are correct if her conclusion is that sexual activity between parents and minor children is allowed.) The provision she cites from Virginia law exempts parents because they are covered in at least one different statute, 18.2-370.

The real problem in the United States is not that instances of sexual abuse and spousal rape are legal, it's that the crimes are largely unreported, and when reported are difficult to prove. And of course they're difficult to prove! The nature of nuclear families is that they're intimate. When intimate relationships work well, that's very good. When they don't, it's very bad, and the victims are very isolated.

[Sapient]

Actually, I guess I should ask Anne E where the two instances of sexual abuse of fathers with teenage daughters occurred.

[Anne E]

Sapient, I did NOT say that Virginia law allowed parent-child sex. I specifically said that the different Virginia laws appeared to be in conflict, and that I COULD NOT DETERMINE what the result would be if a father/stepfather had sex with a 16 or 17 year old daughter. I quoted, verbatim (it was actually a cut-and-paste from Wikipedia) one Virginia law that said "this is a crime unless the minor is your spouse or child or grandchild". I mentioned specifically that it was one of several conflicting laws.

I don't think I should post the locations, as quite a few people know I sometimes post here, and the states could possibly identify the people involved. Instead I'll say, did you bother to read the Wiki article? If it's true, as Wikipedia seems to indicate, that many US states have 16 as the age of consent, without having a special provision for parents or people in a position of authority, and given that 16 year olds are under their parents' control- to me, that's a problem.

I'd also give you a case from the public record. Susan Smith, the woman in South Carolina who drowned her two children, had been abused by her stepfather at age 15. She had reported the abuse twice, first to a therapist and a year later to a school counselor. The therapist did not report it, and by the time the counselor did report it, she was 16 (the age of consent in South Carolina). The district attorney decided not to prosecute. And that was in a situtaton where the conduct was illegal at the time it occurred. If she had been over the age of consent at the time, under what statute could her stepfather possibly have been prosecuted?

[mythago]

Anne - you don't have to be a lawyer to search a state's laws online. Virginia makes sex between parent and child a Class 5 felony.

Re Susan Smith, prosecutors decide not to prosecute for any number of reasons that have nothing to do with whether the conduct alleged is lawful.

I'm not aware of any state that does not criminalize sex between a minor child and his or her parent.

[Jesurgislac]

And given the horrible history of allowing sexual abuse in chruch institutions in Ireland, I'm wondering if those fathers and uncles faced any consequnces?)

Impossible to say because in rape cases the victim's identity is protected. Just as in the US, though, it's much easier to tackle the victim (whether to help, or harm) than it is to prove rape and prosecute the man responsible.
Same thing happens in the US - it's a mistake to assume that this is an Irish problem, in fact the US teenage birth rate is 52.1 per 1000, while the Irish teenage birth rate is 18.7 per 1000.

(I'd agree that a young woman raped by a relative should be allowed an abortion, but it's still a horrible tragedy for both teenager and unborn child. Better by far to prevent the whole thing.

Well, I agree. Better sex education, better provision of contraception, and of course free access to free abortion as soon as possible for any teenager - no girl should have to say "I was raped by a relative" in order to get an abortion. She should just get one as soon as she asks...

[Joe]

I would be surprised if any state allowed sex between a parent and his/her adult child either. What state allows incest between close blood relations? Step-relations are barred in many states.

It should be noted that spousal rape was not a crime in several states in the U.S. until the 1980s, NY coming late to the party as well, it taking a court case to do the trick.

As to age of consent, the problem is not necessarily the age. It is the age difference. People here have sex at 14. If it is with a sixteen year old, it shouldn't necessarily be "rape." But, if 30? Well, quite different there.

[Orphan Morphan]

This entire article is the Theater of the Absurd. Ionesco would love it.It presumes conversations like this:
Boy: I want to make love to you, Julie.
Girl: Hey, how old are you?
Boy: Fifteen and a half.
Girl: Can you wait six months?