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Penal Code 285 PC | Incest

Incest Laws in California – Penal Code 285 PC

What Constitutes Incest Under California Law?

California’s incest statute, Penal Code 285 PC, states:

“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.”

Breaking this down, the legal definition of incest under California law consists of:

  • Sexual intercourse between two persons
  • Who are related to each other within degrees that prohibit legal marriage
  • Where both persons are 14 years of age or older

Sexual intercourse is defined as any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required.

Related within prohibited degrees refers to blood relationships specified under Family Code 2200 as incestuous, including:

  • Parent and child
  • Grandparent and grandchild
  • Siblings and half-siblings
  • Uncles/aunts and nieces/nephews

14 years or older means that if one or both parties are under 14, it likely falls under a different sex crime like statutory rape or lewd acts with a minor.

In sum, incest requires an act of sexual intercourse between close adult blood relatives that would be prohibited from legally marrying each other.

Relationships Covered Under California Incest Laws

Let’s take a closer look at which family relationships are considered incestuous under Penal Code 285 PC:

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  • Parents and children – This includes biological, adopted, foster, and step-parents with their biological, adopted, foster, and step-children. Sexual relations between a parent and adult child over 18 is still considered incest.
  • Grandparents and grandchildren – This covers biological, adopted, foster, and step-grandparents with their biological, adopted, foster, and step-grandchildren. Great-grandparents with great-grandchildren are also included.
  • Siblings – Full, half, and adopted brothers and sisters are all covered. Sex between adoptive siblings is incest even if not related by blood.
  • Uncles/Aunts and Nieces/Nephews – Both full and half aunts/uncles are included with their full and half nieces/nephews. Great-uncles and grand-nieces/nephews also fall under the law.
  • Minors under 14 – Incest laws apply only to persons 14 and older. If one party is under 14, it may be charged under child sex crimes instead.
  • Cousins, in-laws, steps – First cousins, step-relatives, brother/sister-in-laws are not covered under California’s incest laws.

The key factor is a close blood relationship that would carry high risk of genetic defects in potential offspring. This informs which familial relations are prohibited.

Penalties and Sentencing for Incest

Incest under Penal Code 285 PC is a felony offense in California punishable by:

  • 16 months, 2 or 3 years in state prison
  • Up to $10,000 in fines
  • Mandatory sex offender registration under PC 290

Felony probation may be granted in lieu of prison at the court’s discretion. Probation terms can include counseling, community service, probation supervision, and other conditions.

California has a three-tier sex registry system with periods of 10 years, 20 years, or life for Tiers I-III respectively. Most incest convictions fall under Tier I (10 years).

Sentencing depends on factors like criminal history, aggravating/mitigating circumstances, and whether minors were involved. Prosecutors often seek harsh punishment for incest cases viewed as exploitative.

In cases involving minors under 14, other charges like child molestation may apply, carrying even lengthier sentences.

Defenses to Incest Charges

While incest allegations must be taken seriously, several legal defenses may apply to fight the charges:

  • No sexual intercourse occurred – The defense can argue the accuser is lying or mistaken about alleged acts of sexual intercourse. The strict definition of intercourse as penetration may be exploited here as well.
  • No knowledge of relationship – The accused can claim having no knowledge or reason to know they were biologically related to the other person. This is rare but could occur in some circumstances.
  • False accusations – The alleged victim may have motives to fabricate incest accusations, which can be exposed by the defense.
  • Consentual incest – Incest is criminalized even if the sexual acts were consentual. But consent may sway sentencing or public opinion on the matter.
  • Unlawful arrest – If the accused was arrested illegally, any evidence obtained may be suppressed.
  • Statute of limitations – Incest has a 6-year statute of limitations, providing a possible defense for older allegations.

An experienced criminal defense attorney can assess the prosecution’s case and identify the best defense strategy for an incest charge.

Related Offenses to Incest

Other sex crimes related to or charged alongside incest include:

  • Child molestation – Incest with a minor under 14 may also constitute lewd acts with a child under PC 288. This carries up to 8 years in prison.
  • Statutory rape – Incest with a minor under 18 but over 14 can trigger statutory rape charges under PC 261.5, punishable by up to 1 year in jail.
  • Continuous sexual abuse – Ongoing incest with a child under 14 could lead to charges of continuous sexual abuse of a child under PC 288.5, with up to 16 years imprisonment.
  • Domestic battery – Incest in a domestic relationship may involve additional charges like PC 243(e) battery against a spouse/cohabitant.
  • Bigamy – If incest occurs in the context of bigamy or polygamy, additional charges may apply under PC 281 PC.

Analysis of California Incest Laws

California’s incest laws have remained relatively unchanged for decades. However, some key issues around incest prosecutions are worth analyzing:

  • Constitutionality – While incest bans have been upheld as constitutional, some legal scholars argue they violate rights to privacy and marriage between consenting adults. But courts have ruled states have compelling interests in preventing genetic defects and protecting the integrity of the family unit.
  • Scope – Other states prohibit incest between first cousins, in-laws, step-relatives, and large age gaps between siblings. California’s more limited scope focuses on relationships posing the highest genetic risks. But this raises questions on where exactly the line should be drawn.
  • Motive – California courts have ruled incest is criminalized regardless of motive. But some argue incestuous relationships driven by mutual love and intimacy should be distinguished from clearly exploitative cases. The motives involved may impact public sympathy and sentencing.
  • Minors – Incest laws aim to protect vulnerable children from abuse and trauma. Yet cases between young minors, like a 16-year-old brother and sister, occupy an ethical grey area calling statutory rape laws into question.
  • Punishment – Like drug crimes, some believe harsh incest sentences do more harm than good. Counseling and rehabilitation may better serve families and society in many cases. But the desire to severely punish clear-cut abuse remains strong.

Reasonable minds can disagree on such issues. But current California law provides clear prohibitions on sexual relations between close adult blood relatives.


Incest should not be taken lightly given the severe penalties involved. But solid legal defenses are available if you or a loved one are facing incest allegations.

An experienced criminal defense lawyer can fully investigate the charges, build an effective defense strategy, and advocate for the best possible outcome in your incest case. Don’t hesitate to seek legal help and counsel on your options.

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