Posted on 01/06/2011 5:17:20 AM PST by markomalley
The story of David Epstein, the Columbia University political scientist and Huffington Post blogger now facing criminal charges of incest, has launched a very interesting discussion. What is fascinating about it, and deeply disturbing, is the inability of some commentators to articulate what is morally wrong about the act of incest. It is almost equally disturbing that a legal argument for a “right” to engage in adult, consensual incest stands on surprisingly firm footing, thanks to precedents the United States Supreme Court has already established in other cases on the “autonomy of the person” under our Constitution.
Professor Epstein, 46, has been charged with third-degree incest for carrying on a sexual relationship over a three-year period with his daughter, now 24. From what little has emerged about the case, there are no charges that the relationship antedated the daughter’s eighteenth birthday, nor has it been alleged that the sexual relations were other than consensual. (The daughter herself has not so far been charged with a crime, however.) So powerful is the contemporary opinion that “consenting adults” may engage, in private, in any acts that commit no “harm” (narrowly understood in almost purely physical terms) to the parties in question or to others, that some observers have merely shrugged indifferently at the Epstein case, while others have striven to find grounds for condemning such incestuous acts but finally confessed their failure to find them.
After briefly describing the facts of the Epstein case, UCLA law professor Eugene Volokh asked, “Should it be illegal, and if so, exactly why?” The comments from his readers were not, in the main, terribly edifying. Volokh’s UCLA colleague Stephen Bainbridge cited the ethicist Leon Kass’s phrase “the wisdom of repugnance,” and said there was “definitely an ick factor” at work in his judgment of the case. But beyond this instinctual support for an ancient taboo, Bainbridge had little else to offer. And such an “ick factor” may be all most people can summon upon learning of this case. The taboo being so ancient, so much a part of “second nature” in people’s moral make-up, it has gone unarticulated for so long that when the need arises to articulate it, we may find ourselves speechless.
William Saletan made perhaps the most successful attempt to articulate a reason for condemning even consensual adult incest. He rejected the oft-cited risk of hereditary birth defects as a reason to prohibit incest, because such a risk is not present in some incestuous relations and is easily obviated in others. And violence and exploitation could not be said to be at work in truly consensual cases of incest between adults. Saletan finally settled, without much further elaboration, on calling incest a “cancer of the family” because it perverts already-existing relationships between family members.
It does indeed. Saletan might have consulted the analysis offered in C.S. Lewis’s 1960 book The Four Loves had he wished to develop the point. Lewis’s four forms of love are affection (the Greek storgē), friendship (philia), sexual or romantic love (eros), and charity or Christian love (agapē). Here we may stick to the first three—the “natural loves,” Lewis calls them—and observe that they are not so much variations of one thing as different species of love. Each has its own integrity, and is in an important way constitutive of human happiness. Some overlap among or progression through the various loves is possible, of course. Married couples, for instance, may begin as friends, become lovers, and finally find their relationship cemented in bonds of affection, that “humblest love” that as often as not involves a great deal of “taking for granted.”
But while such overlap is appropriate in some instances, in others it is inappropriate—indeed, it can be an outrage to mix loves or for one to intrude upon another. The relations of children to parents, and of siblings to each other, the most basic of familial ties, are intense and lifelong relations of affection, in which great variations on storgē are visible. Such close kinship, grounded in nature or even only in law and custom (as with step-siblings, for instance), is often its own justification and support. Surely many of us have been heard to say something like, “I don’t much like him, but I’m obliged to love him, because he’s my brother.” Introduce the element of eros, however, and affection is not reinforced; it is destroyed, and replaced by something unnatural to the relationship in its proper sense. The human good of parent-child love, or of sibling intimacy, is sacrificed to a misplaced passion that cannot achieve its own rightful end.
Much more could be said on this score, about the natural hierarchies, duties, and trusts that are shattered by incest, even between “consenting adults.” But the recent discussions of this matter reveal how decayed is our moral vocabulary for considering it, how nearly lost is any understanding that our various loves have their natures and purposes, which must be respected if those loves are to conduce to our happiness. Only such decay can account for the failure to grasp that a man cannot be a father to his lover, or a lover to his daughter.
The degradation of our moral sense about these things has been driven by the elevation of eros above all other loves, by the reduction of eros almost entirely to sexual behavior alone, and by a notion of untrammeled freedom to seek sexual satisfaction. In this development, the Supreme Court has played a pivotal destructive role. In its 2003 decision in Lawrence v. Texas, invalidating laws against homosexual sodomy, the Court referred to “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” As Justice Anthony Kennedy went on to say:
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.
As I had occasion to write several years ago in the context of another case of incest, if this is sound constitutional reasoning about the “liberty” protected by the due process clause, then it is as sound for the invalidation of incest laws as it is for the invalidation of sodomy laws. By declaring that a law prohibiting a sex act between consenting adults could not even pass the “rational basis” test, the least stringent of the constitutional standards the Court applies, Justice Kennedy in fact invented a kind of super-fundamental right to the sexual satisfactions of one’s choice, so long as one had a willing partner (or partners) past the age of majority. While a federal circuit court and a state supreme court have attempted to divert the reach of the Lawrence precedent from its obvious impact on incest statutes, their arguments unconvincingly deny the plain inferences to be drawn from Justice Kennedy’s reasoning.
Saletan insisted that there is “a rational basis to forbid” incest, even when it is the act of consenting adults—although he seemed also to want to leave his own moral strictures largely unenforced in such cases. The burden of his argument, however, was to distinguish between homosexual relations and incest, giving moral approval to the former while retaining condemnation of the latter. Indeed, as a supporter of same-sex marriage, Saletan argues that while incest is a “cancer” that eats away at the family, homosexuals should be encouraged to marry in order to “form . . . stable famil[ies].”
For our present purposes we can leave aside the question whether same-sex couples can form unions that deserve to be called “marriages,” or whether homosexual relations correspond to the nature or purposes of any of the “natural loves,” as Lewis called them. (On the nature of marriage, see the articles collected here on the debate begun recently by Sherif Girgis, Robert P. George, and Ryan T. Anderson.) What we must notice is that Saletan’s strictures against incest rest on moral arguments of a kind that the Supreme Court has already rejected in the Lawrence case. Above all other considerations, the Court has elevated autonomy, choice, a freedom from being trammeled in one’s private preferences regarding intimate matters of sexual partnering, and even a freedom from being “demeaned” by public disapproval in law or policy of one’s choices in such matters. A majoritarian moral preference for the integrity of the family cannot, in this arena, claim a “rational basis” in the law as against the autonomous choices of free individuals to disregard that integrity if it suits them. There is no such thing, by the inexorable logic of Lawrence, as “the family.” There are only “families,” constituted by the choices of individuals to make them, unmake them, and bend their purposes to their own will.
Whatever the fate of Professor Epstein, his case forces us to choose between alternative courses of reasoning regarding the morality we embody in our law. Do we believe in the “autonomy of the person,” as a constitutionally protected freedom to live as though human relationships were clay in our hands, to be molded as our desires imperiously demand? Or do we believe that sexuality, love, and family are things that constitute us, possessing their own natures and purposes and calling us to answer to them? On our choice between these two understandings, much of our future happiness depends.
I hear that Lot’s wife was a salty tongued old gal.
It is a concern of ‘We the People’ and thus so the state.
You say that the state exists to protect for one ‘the rights’ of the people. Do you not believe in the ‘right to representation’ though? If the people of a state believe that sodomy or incest are harmful would you deny their ‘right to representation’ on the issue?
I understand your point of view, and I think voters should tread carefully before enacting any law. However, I also agree with TheBigIf that states have the right to enact laws governing morality. You may not agree, and you’re entitled to vote against restrictions on prostitution, incest, or whatever, but there’s simply no constitutional prohibition against such laws.
As I’ve argued here before, pretty much every law has some basis in morality anyway. Even laws against speed limits make a moral judgment that safe travel is more important than the guy with the fastest car having the right of way. Equal treatment under the law and the concept of the rule of law itself are based on moral judgments. You seem to want to cordon off sex laws (and maybe more) for special treatment.
It’s not that I don’t sympathize with the concept that consenting adults should be generally free to do whatever they want with their own bodies, but what goes on in the bedroom often can and does affect things outside of the bedroom. In our country, voters, not black robed tyrants, should be making these decisions. You might even overturn a great number of laws restricting sex practices if you garner the support of a majority of voters, while my state might enact even stricter provisions. That’s how it’s supposed to work in a constitutional republic.
I forgot that Lot’s daughters tricked him into sleeping with him, but the reference seemed fitting. Lot was a moral man who was rescued from Sodom’s destruction. He was hunkered down with his family, literally surrounded while the sodomites paraded around his home. The sodomites themselves took great pride in their sinfulness and paraded about without shame. Such awaits this country.
No argument in principle. Unfortunately, the practice these days is not the same as the principle. Nowhere near it.
Yes. Do you know what a "Right" is? I don't think you do.
Do you not believe in the ‘right to representation’ though?
Probably not the way you do.
If the people of a state believe that sodomy or incest are harmful would you deny their ‘right to representation’ on the issue?
Define "harm". I think you're confusing "harm" with "most of us don't like it."
What if the people of a State think that Jews are harmful? How about if they think steak dinners are harmful? Should they be able to criminalize eating steak? What if they think Catholocism is harmful?
Many people "think" (they don't really think it, they just believe it) that Carbon Dioxide is harmful and therefore the Government has to strictly regulate and in some cases criminalize the emmission of it. Are those people right in their thinking?
Some people "think" that the lack of having a health insurance program is harmful and that it should be criminalized. Are they right in their thinking?
Here's a hint for you. You're not really thinking. You're believing. There's a big difference.
L
“Palin-Hating Columbia Professor, Huffington Post Blogger, Busted for Incest”
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"Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams
How and when, specifically if you please.
L
How and when, specifically if you please.
L
These sorts of things are instigated by people who do not have enough to do. If they had to wonder each day where their next meal was coming from, and actually WORK to insure it, that would be a start. The children in these cases, although adult in body, are still at an extreme disadvantage due to the parent always being an authority figure throughout their lives - and never thereafter being able to develop a healthy relationship with anyone else because of the initial “ownership” claim staked by the parent. - When this sort of thing becomes legal, as the liberals want to fix the Supreme Court where it will be - the proper regard for it will no longer be the disgust and outrage it deserves. - This man is a DEPRAVED, DISGUSTING HOG and his daughter is the VICTIM of rape by the pig.
Principles are what matter after all.
Unfortunately, the practice these days is not the same as the principle. Nowhere near it.
Who's fault is that?
“Such awaits this country.”
////////////////////////////////////////////////////////////
Such IS this country.
A popular Columbia professor was charged Thursday with incest – accused of a sick sex relationship with a female relative, prosecutors said.
Political science Prof. David Epstein, 46, bedded the young woman over a three-year period ending last year, according to court papers.
He was arraigned before a Manhattan judge on a single felony incest count.
Sources said the victim was over 18 when the relationship began in 2006 and that the two often exchanged twisted text messages.
Epstein faces up to four years behind bars if convicted.
This is the guy who called Sarah Palin “weak” and “self-centered.”
Project much, professor?
UPDATE: Oooh, details emerge of Professor Pervo’s (alleged) crime:
He had relations with his daughter, now 24, from 2006 through 2009, the complaint said.
So, according to his own daughter, Professor Pervo was engaged in this twisted behavior the whole time he was blogging at HuffPo.
UPDATE II: “Police say the relationship between Epstein and his daughter was consensual.”
All together now: Eeeeewww! Yuck!
Based on an article in the Columbia Spectator, it would appear that Epstein and his wife, Sharyn O’Halloran (chairwoman of the executive committee of the Columbia University Senate and a tenured professor) have split up. And I’m going to go out on a limb here and guess that Professor O’Halloran was the one who reported this “consensual” relationship — Eeeeeww! Yuck! — to the police.
UPDATE III: A writer at Salon examines the legal aspects:
It has all the sordid ingredients to supply tabloid headlines for days, but far more interesting — at least in my nerdy universe — are the laws behind this case and others like it. After all, the relationship in this case allegedly began after Epstein’s daughter reached the age of consent. It isn’t a clear-cut case of child abuse, and there are no allegations that the three-year-long relationship carried on without the daughter’s consent. . . .
Most courts are concerned about parents preying on their children, [University of Akron law professor J. Dean Carro] said. “Regardless of the age of the child, there’s still a theory that a parent is always a parent, a child is always a child and, as a result, there truly can’t be a consensual sexual act.”
To repeat: Eeeeeww! Yuck!
UPDATE IV: Jammie Wearing Fool: “To no surprise he’s an Obama donor.” And here’s the video debate with Peter Schiff from last November, in which Epstein gave a presentation entitled: “How Obama’s Policies Are Saving the Economy.” (Not to be confused with “How Obama’s Supporters Are Having Sex With Their Daughters.”)
UPDATE V: This is what I get for not checking around the Internet before blogging like I’m the first right-winger to discover a story: Ace of Spades posted on this story two hours before I did — and already has more than 300 comments.
UPDATE VI: Noel Sheppard at Newsbusters was all over this story today, highlighting Epstein’s cluelessness and, among other things, how Epstein accused Republicans of ”taking hypocrisy in their personal lives to new levels of self-indulgent weirdness.”
Obviously, Epstein’s an expert on “self-indulgent weirdness.”
UPDATE VI: Donald Douglas has an excellent aggregation including Kathy Shaidle’s headline:
Liberals: your moral and intellectual superiors!
Elie Mystal at Above the Law: “Columbia Poly Sci Professor Accused of Diddling His Daughter.”
Epstein’s lawyer wants you to know that his client “is a respected member of the Columbia University and national academic communities.”
Yeah. That’s kind of the point here: Even a “respected” Ivy League professor can still be a total creepazoid.
UPDATE VII: Welcome, Instapundit readers!
UPDATE VIII: West Virginian Don Surber is probably wondering when the intellectual elite will apologize for all those hillbilly incest jokes.
UPDATE IX: Over at The American Spectator:
[W]hile incest remains illegal in New York State, some commenters at the Columbia University student newspaper Web site are mystified as to why it’s illegal: “Wait, why is consensual incest a crime? It might not be appealing to everyone, but if they’re adults and they consent, who cares what they do?”
Readers might suppose that arguments involving phrases like “thou shalt not” and words like “abomination” are sternly frowned on at Columbia University, so that the faculty would have a hard time answering such a question from their students.
And there’s now a Memeorandum thread.
UPDATE X: Curt at Flopping Aces points out that commenters at HuffPo also have a hard time dealing with this “thou shalt not” problem:
It is kinda sick, but I think a four year prison sentence is extreme – considerin g they are both consenting adults. . . .
If he is being prosecuted then so should she and anyone who doesn’t agree clearly is not in favor of equal rights for women. . . .
They are two consenting adults. Am I missing something here? . . .
I don’t understand how it is a crime.
Perhaps they should get Judge Roy Moore to give a lecture at Columbia University? I mean, after all, they’ve already had Mahmoud Ahmadinejad lecture at Columbia.
There is something profound here that seems to have been missed. If you accept (1) that incest is innately immoral and (2) that there is no moral reason to oppose adult-adult incest outside of the prohibitions in God's word and in nearly universal community values, doesn't that mean that faith and values are essential in understanding morality? I don't have a logical case for adult, consensual incest being wrong, beyond God's word and the massive societal harm, but we all know that it is very wrong. We should learn from this example and stop backing down when the thugs and libs try to bully us into keeping God out of the public arena. God belongs in the public arena, as does his word, not as a method of boasting about our virtue but as a guide to living virtuously.
All morality comes from God. This is a perfect example of what happens when God is denied.
How many marriages break up because of adultery? I suppose you think voters should have zero interest in divorce and one of its primary causes.
Diseases like AIDS and hepatitis? I guess you think voters have no right to be concerned about the spread of diseases into their blood or food supplies.
Children of single mothers being raised by the state? Again, no voter interest there either.
Prostitutes plying their trade in front of businesses or homes? Better not regulate that, ‘cause it only involves transactions between consenting adults.
Again, show me in the US Constitution where the right of consenting adults to do whatever they want is enshrined. It isn’t there, and VOTERS have not only the legal right but the moral authority to set standards for their communities.
I don’t know. Any “unviable tissue mass”, as they would term it, generated by such a relationship would be aborted anyway, just as are now so many healthy lib babies without incest.
They are already well on the road to libocide without the degenerative effects of incest.
The NappyOne
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