The PJ Tatler

Australian Judge Asks, If Homosexuality and Adultery Are Now Ok, Why Not Incest?

When the taboos start to fall, who’s to say that yours will stand?

An Australian judge suggests that a 1950s court would have found sex between two men “unnatural,” and sex outside of marriage a violation of English Common Law.

So, now that more nations and states have declared what was taboo to be not just normative but a civil right, Judge Garry Neilson asks, why not incest? He then deals with the objection that birth defects may occur in the spawn of close relatives by noting that contraception is widely available and abortion socially acceptable.

The comments were labelled misogynistic and “completely disgraceful” by Sally Dowling, the crown prosecutor, who has asked an appeal court to appoint another judge.

“The reference to abortion is particularly repellent,” she said.

Dr Cathy Kezelman, an advocate for preventing child sex abuse, said incest was horrific, regardless of the ages of those involved.

“The relational betrayal of the horrors of incest between a brother and sister of any age is abhorrently criminal,” she told The Sydney Morning Herald.

But why the outrage in our postmodern, progressive era? Let’s think it through for a moment based on our spinning moral compass.

For the sake of this legal exercise, let’s assume society continues to condemn sexual acts involving the use of threats and violence, against the will of at least one party. Beyond that, who’s to say that sex, and/or marriage, between consenting members of a nuclear family is impermissible under law? On what principle can we continue to forbid it?

And if, as we’ve been told, the only significant question regarding marriage is “who do you love?”, then it seems that all other societal sexual restraints (beyond those on nonconsensual coercion and compulsion) must be lifted.

However, human experience shows that sexual relations need not involve “love” at all.

Mere momentary pleasure, with no commitment, has become the accepted standard for many people. Since we’re not willing to jail (or judge) people who engage in consensual one-night stands — even if one of them is married to a third party and thus in breach of contract — then the question really has nothing to do with “who you love,” does it?

As you follow that thread, you quickly arrive at the end where you must admit: The law should be what I feel it should be, at least for me. If you’re particularly democratic, you might amend that to say, the law should be what the majority decides from time to time.

This is tantamount to the statement: there is no law.

Now, some of my libertarian friends would have said “Amen” to that, if they didn’t fear it might sound too religious. (But, oddly enough, most libertarians are not so libertine nor antinomian.)

If the law literally has no business in the bedroom, or wherever intimate encounters occur, then who dares to prevent or punish sexual relations between a consenting adult and, for example, a consenting minor? So long as no one gets hurt, what’s the legal issue?

You might say, “Well, a minor cannot grant consent.”

Well, he can’t sign a binding contract, but he certainly can grant consent when an adult says, “Do you want some candy?” (We have an almost-universally observed holiday in October built around that transaction.) Parental warnings to the contrary, it’s not illegal to offer candy to a child.

In any case, the age of consent is merely an arbitrary construct of law (fashioned by old white guys, no doubt). We have decided as a society that a minor may not grant consent, but we could decide otherwise. In fact, we’ve changed the age of majority in several instances — drinking, voting, eligibility for possible compulsory military service.

Of course, one may forbid it on the grounds that a child in a consensual sexual relationship with an adult could sustain psychological damage, but by whose standard?

Are there not homosexuals and heterosexuals who suffer mental trauma and neuroses for years as a result of relationships between consenting adults? Humans have practically made a sport out of messing with each other’s emotions through awkward sexual encounters that prove psychologically devastating to one or more parties.

Remember, society has not always agreed that homosexuality is merely an alternative lifestyle. Until 1973, the American Psychiatric Association classified homosexuality as a mental illness, the American Psychological Association did until 1975, the World Health Organization until 1990.

So who gets to decide what’s acceptable, normal and healthy, and what’s unnatural, harmful and illegal?

Judge Neilson’s musings from the bench raise the question: Should we have a standard other than evolving preferences, or is all law arbitrary — merely a method to subject oppressed minorities to the wishes of the majority?

If there should be a standard, beyond the latest opinion poll, then where shall we find it?