Redrawing the Boundaries of Relational Crime
77 Pages Posted: 4 Dec 2017
Date Written: December 1, 2017
One person hits another repeatedly, causing bruising and pain. Two adults have consensual sex. Surely the first is the crime of assault, whereas the second is private conduct beyond the reach of the criminal law. Yet things are not so clear. In the first case, if a father is disciplining his child, then the assault is forgiven. And if the second case involves a brother and sister, then consensual sex becomes a crime. The relationship between two parties can erase criminal liability from harmful conduct or criminalize otherwise innocent actions. Legal scholarship has mostly neglected this phenomenon, which I term here “relational crime.” This Article offers an examination and critique of relational crime for the post-Obergefell constitutional landscape. It argues that the current scope of relational crime warps harm assessments and family status. By legitimizing serious harm, punishing harmless conduct, and importing anachronistic family norms into the criminal law, it results in punishment that is both over and underinclusive. Take these examples. A stepfather can beat his stepdaughter through her childhood, then have sex with her when she is an adult without being criminally liable for assault or incest. On the other hand, biological siblings who first meet in adulthood and have consensual sex are subject to prosecution and severe punishment. To remedy such distortions, this Article introduces a new theoretical framework that incorporates evolving notions of sexual harm, changed parenthood definitions, and the constitutional principles of equality and autonomy newly embedded in family law. Under this framework, categorization shifts so that corporal punishment is no longer forgiven, and a stepfather would be punished for sex with his stepdaughter because the power differential renders meaningful consent impossible. Conversely, sex between two consenting adult siblings is no longer criminal. In this fashion, my framework rightsizes the boundaries of relational crime.
Keywords: family crime, incest, corporal punishment, sexual harm, exploitation, parenthood, family equality, consent
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