The Law on Incest: A New Legal Realist Approach to Understanding the English and Welsh Prohibitions

This thesis examines the prohibition of incest in England and Wales and is written within a New Legal Realist paradigm. The selection of the paradigm has freed the approach from a traditional black letter method and allowed for the use of multiple methodologies that are appropriate to the data being investigated. The thesis begins by exploring the legislative action taken against incest in England and Wales from the Anglo-Saxon period through to the 2003 Sexual Offences Act. It finds that there has been little consistency in the regulation of incestuous activity across differing historical periods. The investigation identifies the reasons why action was taken against incest and what changes to the nature of the offence, including prohibited kin and sexual acts, were made over time. Empirical analysis of the Report entitled Setting the Boundaries, which was the cornerstone of the incumbent legislation, was undertaken using Rhetorical Political Analysis. This allowed the discovery of stories and narratives which have supported the recommendations of the Report. These recommendations have ultimately become the incumbent legislation regulating incestuous sexual activity. The thesis also identifies a dissonance between the reasoning used when producing the recommendations, and that used to justify the recommendations during the parliamentary process. Data concerning the sentencing of individuals prosecuted for commission of actions infringing the 2003 Act is analysed and compared to the previous legislation, and concerns over the compatibility of the ‘incest’ provisions in the 2003 Act with rules governing sentencing are raised. The compatibility of the provisions and the need to register on the Violent and Sex Offender Register is also investigated, as are previous legal challenges concerning registration and the impact of registration upon the offender and their position within society. Finally, the position of the incumbent provisions is understood in light of current European Convention on Human Rights norms. Rather than using case precedent to argue for or against the compatibility of the domestic provisions, the cases are used as ‘data’ to investigate the provisions. An attempt to ascertain a European consensus on incest is also made. The investigation reveals that the reframed ‘incest’ provisions of the Sexual Offences Act 2003 may breach Articles 8 and, 8 + 14 of the European Convention on Human Rights.