As a young adult I was exposed, more or less willingly, to that inane, corrupting influence known as “Hee Haw” on weekend television. One delightfully disturbing recollection is the (novelty) song “I’m my own grandpa.” Remarkably, the unlikely familial relationship described within the lyrics was accomplished without the darkness of incest. But that was in a more innocent time.
In the novelty news this week is the tale (true or not) of a 68-year-old lottery winner from Florida (where else?) who went looking for love online and “accidentally” married his own granddaughter, a 24-year-old. The reader’s discomfort with that “accident” was compounded (in the news accounts) by word that the couple had no plans to divorce. I had to wonder whether the young woman and her grandfather were married at all and whether they were committing (or had committed) a criminal offense. This was definitely a worthy research project for the CLB.
I assume (without knowing) a Florida “wedding” ceremony. Here is the Florida statute regarding incestuous marriage:
741.21 Incestuous marriages prohibited. A man may not marry any woman to whom he is related by lineal consanguinity, nor his sister, nor his aunt, nor his niece. A woman may not marry any man to whom she is related by lineal consanguinity, nor her brother, nor her uncle, nor her nephew.
And here is the Florida criminal code statute on incest:
826.04 Incest. Whoever knowingly marries or has sexual intercourse with a person to whom he or she is related by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece, commits incest, which constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. “Sexual intercourse” is the penetration of the female sex organ by the male sex organ, however slight; emission of semen is not required.
There seems to be some tension in these two statutes. For instance, the criminal statute assumes a “marriage” which is criminal but not void while the marriage statute suggests that a marriage between a man and his lineal descendant is an impossibility and, consequently, a void action. Less uncertain is the criminal prohibition against sexual intercourse between a man and his lineal descendant. Sound advice to the Florida couple is to withhold comment about their sex life.
How might the Florida couple fare in Indiana? Could they marry? Could they have sexual intercourse without risk of criminal prosecution?
Any examination of Indiana’s law of “who may marry” has to acknowledge IC 31-11-1-1, unrepealed 1997 legislation prohibiting same sex marriage. Most CLB readers have heard of Obergefell v. Hodges, 135 S.Ct. 2584 (U.S. 2015), but our hapless, clueless General Assembly has yet to receive word. Sections like IC 31-11-1-1 call into question the reasonableness of the presumption of constitutionality of Indiana statutes.
Getting back to Indiana law relevant to my topic, here is the text of IC 31-11-1-2 prohibiting marriage between close relatives:
IC 31-11-1-2
Marriage to close relative prohibited; marriages between cousins; exceptions
Sec. 2. Two (2) individuals may not marry each other if the individuals are more closely related than second cousins. However, two (2) individuals may marry each other if the individuals are:
(1) first cousins; and
(2) both at least sixty-five (65) years of age.
While I am most amused by the exception for first cousins once they reach the age of 65 years, the relevant part of the statute requires consideration of how closely related a person is to one’s second cousin. The arithmetic is fairly simple though not necessarily intuitive. I ignore here any relationship based on marriage and consider only heredity. A starting point might be the premise that siblings are 100% related in that they share the same set of parents, grandparents, and so on. First cousins share two grandparents within a set of four grandparents, resulting in a 50% hereditary relationship. While first cousins share one pair of grandparents, second cousins share one pair (among four) of great grandparents, resulting in a 25% hereditary relationship.
So let’s apply the 25% standard to a woman and her grandfather. The woman has four grandparents, each of whom can claim a 25% hereditary contribution to the granddaughter. The unanticipated result here is that Indiana law does not prohibit marriage between a woman and her grandfather in that the two are no more closely related than second cousins.
But what about sexual intercourse between the two? Step over to the criminal code with me for a look at the Indiana incest statute:
IC 35-46-1-3
Incest
Sec. 3. (a) A person eighteen (18) years of age or older who engages in sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) with another person, when the person knows that the other person is related to the person biologically as a parent, child, grandparent, grandchild, sibling, aunt, uncle, niece, or nephew, commits incest, a Level 5 felony. However, the offense is a Level 4 felony if the other person is less than sixteen (16) years of age.
(b) It is a defense that the accused person’s otherwise incestuous relation with the other person was based on their marriage, if the marriage was valid where it was entered into.
While subsection (a) does expressly prohibit sexual intercourse between grandparents and their grandchildren, section (b) creates a “marriage defense” provided that the marriage was valid where entered into.
The Florida couple might choose to go into voluntary exile from that state to a locale less hostile to their forbidden love: INDIANA! If the Florida couple moved to Indiana, they could legally remarry here and then enjoy their marital intimacies without fear of criminal prosecution. This analysis should not be taken as an invitation to the Florida couple to become Hoosiers.
What does it all mean? That silly country song about being one’s own grandfather is testimony to the principle that humans will do the damndest, least imaginable things. A legislative body tasked with enumerating all that is prohibited needs an imagination untethered from cultural convention. By its lack of imagination the Indiana General Assembly has neglected to bar marriage between a man and his granddaughter. Each member of the General Assembly should be required to “binge watch” a couple of dozen “Hee Haw” programs before the next legislative session.
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