INCEST. - I. NOTION. - From incestu (non castus) comes the carnal sin between blood relatives or relatives by marriage, who, according to natural and ecclesiastical law, cannot validly contract Marriage with one another (v. AFFINITY; CONSANGUINITY).
St. Augustine rightly observes that, if at the beginning of the human race the union between brothers and sisters was a necessary condition for the propagation of the human race, once this necessity ceased, such a union was condemned by religion (De civit. Dei, bk. XV, ch. 16, no. 1: PL 41, 457-58). Consequently, at the beginning of the human race, the union between brother and sister must not be considered an incestuous union, since the Creator had so disposed it for the propagation and preservation of the human race.
II. HISTORY
1. Among primitive peoples
For a long time, regarding the totemistic culture of Australia as the most ancient, it was maintained that the most ancient form of the prohibition of incest is that of the totemic clan, defined by Durkheim as "a group of individuals who consider themselves related to one another, but who recognize this kinship exclusively from this very particular sign, that they are bearers of the same totem" (v. TOTEMISM). The starting premise, in short, was that the most ancient humanity, not knowing marriage, lived in promiscuity of the sexes and then, to remedy this, worked out the division of the clan first into two and later into several marriage classes with the law of exogamy. Whence the prohibition of incest. Frazer explains it clearly thus: "Put briefly, the two-class system has the effect of prohibiting marriage between brothers and sisters, but not always marriage between parents and children, nor between the children of a man and those of his sister. The four-class system has the effect of prohibiting marriage between brothers and sisters and between parents and children, but not marriage between the children of a man and those of his sister. Every successive dichotomy therefore has the result of cancelling a new class of relatives from the list of persons with whom marriage may be contracted, that is, of adding one more to the list of prohibited degrees." This purely evolutionist theory has been superseded by modern ethnology through broader and more precise research, from which it emerges that the most ancient form of marriage, as the great scholar of the psychology of peoples W. Wundt already acknowledged in 1912, is monogamy, and the social organization of the Australian totemists with the prohibition of incest connected to it is not the most ancient.
Today, in accordance with the great advances of the sociology of primitives in ethnology, many forms of the prohibition of incest must be distinguished, of which the totemistic is only one among the many forms that vary in extent and effects, just as the different characteristic forms of kinship by consanguinity and by affinity vary, with which the prohibition of incest is closely connected (v. KINSHIP). The Andamanese, for example, counted three generations of relatives; they observed the exogamy of a large family: parents, children and children of children, the grandchildren; in the collateral line: brothers and sisters and their offspring. There was no prohibition against marrying a person of the same name, whether from another tribe or from one's own community. Thus it is more or less among gathering peoples, who, ethnologically, are the most ancient of humanity. Among the Mongols, on the contrary, the prohibition of incest comprises many generations of consanguineous relatives, that is, all the persons of the clan, until the latter, in case of necessity, divides to form a new exogamic unit; therefore the clan often practically amounts to a tribe having a great number of generations of consanguineous relatives. Kinship by affinity, on the other hand, ends at the first degree, because marriage between first cousins, children of a brother and of a sister, is permitted. Thus it is generally among nomadic pastoral peoples.
It would be too long to speak of the other characteristic forms of incest; here one must only note a form of the prohibition of incest that is universal, that is, observed among all peoples. It concerns consanguineous relatives in the direct line, in the collateral line with some variation, and the closest affines. Among these relatives incest is held to be grave and is often punished with the death penalty.
In judging incest, primitive peoples are guided by the moral sense, whereby they clearly distinguish the juridical prohibition of incest, which may comprise many generations, from the moral one. Fr. Schebesta noted this among the Pygmies of Kivu; Shirokogoroff among the Tungus and the Manchus; Malinowski among the inhabitants of the Trobriand Islands in Melanesia; as is also observed among the peoples of the Tibeto-Chinese linguistic family. Thus among the latter and the Tungus and the Manchus a new exogamic unit can be formed by dividing the patrilineal descendants who can be traced back to a common ancestor within the five degrees of kinship, which are counted in the Chinese manner, that is, beginning from one's own person. This leads back to a large family: parents, children and children of children; three generations of consanguineous relatives. Malinowski, after distinguishing seven degrees of aversion to incest among the aforementioned peoples he explored, expressly notes that there is no doubt that the taboo separating the members of the same family is, in the reality of tribal life if not in legal theory, a distinct force added to the exogamic taboo. Its influence is observed not only in the separation of father and daughter, but also in the fact that incest with one's own mother and sister excites a moral indignation (there is the death penalty) incomparably greater than incest with a cousin, not to mention incest with a "classificatory" mother and with a "classificatory" sister, which is easily condoned.
From the study of kinship it emerges that peoples distinguish and recognize the progenitor of the family, of the clan, of the tribe, of the people and of all humanity, and yet of these progenitors only the last, the nearest, and his offspring are the object of the most rigorous prohibition of incest, and it is truly universal. Similarly it is so for that of collateral consanguineous kinship with respect to universal human brotherhood and that deriving from the different progenitors. Like consanguineous kinship, kinship by affinity is judged.
How is the prohibition of incest explained? A distinction is made between the explanation of the particular forms of this prohibition, tied to the different types of kinship, and the universal one. That of the particular forms finds its explanation in the formation of the type of civilization to which they belong; the latter, on the other hand, comes down to the search for why marriage and every sexual relation between parents and children and between brothers and sisters is prohibited.
Once Durkheim's explanation is set aside, according to which totemism gave rise to the belief that blood, especially the menstrual blood of women, is the seat of magical virtues, a belief he holds to be the primary cause of exogamy, especially because the prohibition of incest proves to be prior to magical beliefs, and because the evolutionist primitive promiscuity of the sexes is untenable, Mc Lennan's explanation too, founded on the infanticide of female children, and Lord Avebury's on the abduction of women, etc., also fall.
Westermarck, Darwin, Havelock Ellis and Crawley adduced a psychological reason, according to which between persons, especially relatives, who live and grow up together from the tenderest age, those stimuli that lead to the passion of love and to marriage do not develop at all or develop with difficulty. This explanation, as Fr. Schmidt has rightly observed, may at most serve to justify the prohibition of incest between persons of the same age or generation, not that between parents and children, which is the gravest and most opposed everywhere. In it there may be something true; the lack of attraction of the sexes that can lead to marriage is found even more in the difference of age between ascendants and descendants. But really the deeper reason is moral: the fact of having to exercise their authority prevents parents from contracting marriage with their children; the reverential fear of children toward their parents does not let the desire to unite in marriage with their parents arise in them. The ethnologist well knows how much importance the elders have in primitive societies, so that the young count for little or nothing and must learn and receive everything from the elders.
The ethical nature of exogamy among close relatives is then very clear from the prohibition of incest between close relatives by marriage.
The reason given by primitive peoples for the prohibition of incest is a religious one. Thus the Semang of the Malay Peninsula, when incest or adultery is committed, say: Lawaid Karé, that is, a sin against Karé (God). Likewise among the Tungus, when it is necessary to form a new exogamous unit by dividing the clan, counting five generations, a sacrifice is made to Buga, the Supreme Being, the author of the moral order, to announce to him the fact of the exogamous division.
The prohibition of incest must have existed from the very beginnings of humanity. Granted the unity of origin of the human race from a first human couple, as most anthropologists, ethnologists and linguists hold today, one must also necessarily admit that the first marriages were between brothers and sisters. This, however, not as understood by the evolutionists who suppose a primitive promiscuity of the sexes, but as an exception to the rule, an exception required by necessity, because the prohibition of such marriages must then have intervened immediately. This is indicated by many reasons. The family, as Father Schmidt has rightly observed, is in itself centripetal, it tends inward, but society, in order to grow, needs a centrifugal tendency. Now, if at the beginnings of humanity exogamy among close relatives had not existed, the source of the increase of the human race would, in the long run, have dried up even physically, through the infecundity of marriage. This is observed among peoples reduced to small numbers, as, for example, among the Ainu, in whom an extreme nervous irritability develops and who are heading toward rapid extinction.
Also from the moral point of view, if the prohibition of incest were lacking, the authority of parents would, as has been said, have been lacking. With this, the most powerful basis of every true culture would have been destroyed; tradition, with the transmission of what previous generations have done, would have become impossible.
From the purely social point of view, moreover, the consequences of incest, observes the same Father Schmidt, would have been fatal. Those great social groupings, which are indispensable to the full development of all of man's faculties, could never have come into being.
Ethnologically, from the unity of form of the prohibitive law of incest, which has been called universal, one deduces its existence at the beginning of humanity. Indeed, if the prohibition of incest in this form had not existed from the beginnings of humanity, but had been devised after the separation from the common center, there would have been not one but multiple forms of prohibition of incest, as is observed in the different types of civilization.
Bibliography20 works
2. Jews
In Gen. 19:31-38 the incest of Lot with his two daughters is recorded in order to condemn it. Then in the Mosaic legislation there were prohibited the unions of mother with son, of son with the father's wife, of brother with the uterine or full sister, of grandfather with granddaughter, of nephew with the sister of the father or of the mother, because, as the law observes, it is a matter of the same flesh (Lev. 18:7-15). Among relatives by marriage there were forbidden the unions between nephew and the wife of the uncle, between father-in-law and daughter-in-law (ibid. 18:14-15). The penalties established against those guilty of incest were severe: thus whoever sinned with his stepmother, with his daughter-in-law, with his stepdaughter, with his full or uterine sister had to undergo the penalty of death together with the woman (ibid. 20:11, 12, 14, 17). Of the nephew who commits incest with his paternal or maternal aunt it is said that together with the woman he shall bear the penalty of his crime (the penalty is not specified). If one defiles himself with incest with the wife of his paternal or maternal uncle, he shall die with her childless (ibid. 20:19-21). In Deuteronomy curses are hurled against those guilty of incest and the gravest incests are recalled (Deut. 27:20, 22-23).
Holy Scripture further recalls the incestuous relations of Amnon, son of David, with Tamar, sister of Absalom (II Sam. 13:11-22), and of Absalom with David's concubines (ibid. 16:21-22), etc. St. John the Baptist was imprisoned for having reproached Herod Antipas, who had, against the law, taken as wife the wife of his brother Philip while the latter was still living (Mk. 6:17-18).
3. Romans
In ancient Roman law there was considered incest, besides union with a vestal, every union between persons between whom there existed a prohibition of marriage, based on that body of traditional and religious norms which go under the name of fas. Also in the lex Iulia de adulteriis, according to recent doctrine, the concept and the cases of incest are traced back to the veteres mores (cf. D. 23, 2, 29, 1); in the classical age, however, not all violations of marriage prohibitions constitute incest, some of them falling within the concept of stuprum. On the basis of this new concept, incest is the union between ascendants and descendants, even if the kinship is only adoptive, the union between brothers, that with the paternal or maternal uncle or aunt, the union between relatives by marriage in the direct line, even after the dissolution of the marriage that gave rise to the affinity; alongside these, which are undoubted cases, it is probable that classical jurisprudence placed others, such as, for example, the union of a spouse with the children born to the other spouse after the divorce, that of the son with the father's concubine.
The imperial legislation of the postclassical era fixed new marriage prohibitions that can be connected to those anciently established by the mores and thus be brought within the concept of incest; thus we see prohibited the unions between relatives by marriage in the collateral line within the second degree, those between cousins and, through the influence of the new religion, those between Christians and Jews.
According to recent doctrine, not great importance should be attributed to the distinction between incest iure civili (prohibited legibus) and incest iure gentium (prohibited moribus), a distinction that is probably post-classical, originating from the constitution of Caracalla which extended citizenship to the whole Empire, and therefore also to those eastern provinces in which unions condemned by Roman custom were quite widespread.
III. DISCIPLINE OF CHRISTIANITY
1. Before the CIC
At the Apostolic Council of Jerusalem fornication is prohibited, and therefore also all incestuous unions condemned in the Pentateuch (Acts 15:19-21). St. Paul excludes from the community of Corinth a man who had taken his stepmother as his wife (1 Cor. 5:1-8). From the 4th century onward the Councils sanction grave penalties against those guilty of incest. Thus the Council of Elvira, at the beginning of the 4th century, in can. 61 ordained that if a man married a Christian sister of his wife, both were deprived of communion for five years, except for an early reconciliation in case of danger of death (Mansi, II, 15-16). The Council of Neocaesarea (314-25) in can. 12 excommunicated until death the woman who successively married two brothers, and, in the event of the death of one of the parties, the other had to continue the penance (ibid., 239). The Trullan (Quinisext) Council of 692, in can. 54, annulled incestuous marriages, excommunicating the transgressors for 7 years (ibid., XI, 698). The Council of Worms of 888 in can. 32 prohibited incestuous marriages, but left the freedom to contract marriage when there was doubt as to the prohibited degree. The Fourth Lateran Council of 1215, with can. 50, removed the prohibition for the 3rd and 2nd degree of affinity and restricted consanguinity to the 4th degree, because of the difficulty of observing the prohibition in more remote degrees (Mansi, XI, 1035-38).
2. Current canonical discipline
The CIC has restricted the notion of incest. In fact, previously affinity arose even from an illicit relationship, whereas such affinity is at present excluded. However, while previously from a ratified and non-consummated marriage there arose only the impediment of public honesty, but not incest, today on the other hand affinity arises from every validly contracted marriage, even if it has not been consummated, and therefore, in our case, there would be incest if two affines committed carnal sin. There is no incest in the union between those who are joined by legal kinship, however such an impediment may be regarded in individual places, that is, as diriment or impedient, because the bond is merely legal or spiritual.
3. Canonical penalties
St. Paul and the Councils punished incest with severe penalties such as perpetual or temporary excommunication, corporal punishments, prohibition of contracting a new marriage, and with penance of several years, as may be gathered from the penitential books of the 8th and 9th centuries (H. Wasserschleben, Die Bussordnungen der abendländischen Kirche, nebst einer rechtsgeschichtlichen Einleitung, Halle 1851, passim; M. Schmitz, Die Bussbücher und die Bussdisziplin der Kirche, I, Mainz 1883; II, Düsseldorf 1898, passim).
The Decretals inflicted excommunication latae sententiae on anyone who contracted marriages within the prohibited degrees. Moreover Clement V made the civil penalties of confiscation of goods, exile and flogging canonical. In 1869, Pius IX abrogated the excommunication. On the other hand, the prohibition of contracting a subsequent marriage, established by the councils for those guilty of incest, appears to have been abrogated by custom; certainly before the CIC it was no longer in force (P. Gasparri, Tractatus canonicus de Matrimonio, Rome 1932, p. 436, n. 713).
The CIC in can. 2357 § 1 sanctions: "Laypersons legitimately condemned... for incest are ipso facto infamous, in addition to the other penalties that the Ordinary shall deem it right to inflict upon them." In can. 2358, against minor clerics who stain themselves with incest, not only is infamy ipso facto established, but it is declared that they must be punished according to the gravity of the fault; indeed, if the circumstances are very grave, they can be dismissed from the clerical state. Can. 2359 § 2 ordains that clerics in sacris who commit incest in the first degree of consanguinity or affinity must be suspended, declared infamous, and if they hold an office, benefice or dignity they must be deprived of it, and in the graver cases they must be deposed.
An incestuous union can become a legitimate marriage when the impediment (if it is of ecclesiastical law) is dispensed by the competent authority. It should be noted that in petitions for dispensation from matrimonial impediments it was formerly necessary to declare the incest, otherwise the dispensation was null, until the Sacred Congregation of the Inquisition abrogated that sanction of nullity and declared that it was not even necessary to disclose the incest. Today, on the other hand, incest constitutes one of the grounds for granting a dispensation in cases of ecclesiastical impediment.