Incest to have sex in VA with minor stepchild says Fairfax criminal lawyer

Incest law applies to sex with a minor stepchild in Virginia, says Fairfax criminal defense lawyer

Incest law is commonly known to apply to relatives closely related by bloodline. As a Fairfax criminal defense lawyer, I know that Virginia law also criminalizes having sexual intercourse with one’s minor stepchild. Specifically:

“[I]f a parent or grandparent commits adultery or fornication with his or her child or grandchild, and such child or grandchild is at least thirteen years of age but less than eighteen years of age at the time of the offense, such parent or grandparent shall be guilty of a Class 3 felony.” Virginia Code § 18.2-366(B)  (incest statute). For the foregoing statutory provision, “parent includes step-parent, grandparent includes step-grandparent, child includes a step-child, and grandchild includes a step-grandchild.” Va. Code § 18.2-366(C). . 

Virginia’s incest statute does not seem to make it a crime to have sex with one’s adult stepchild Code  18.2-366 does not appear to criminalize having sex with one’s adult stepchild, versus minor stepchild. The closest statutory prohibition against such behavior — which does not look like a prohibition in the first place — provides that: “Any person who commits adultery or fornication with his daughter or granddaughter, or with her son or grandson, or her father or his mother, shall be guilty of a Class 5 felony.” Va. Code § 18.2-366(B). Under the rule of lenity, any ambiguity in statutory language needs to be resolved in the criminal defendant’s favor.

Defendant who had sex with his adult stepdaughter mistakenly argued that Virginia’s incest statute applies to him

Michael Ferguson pled guilty to incest for violating Virginia Code § 18.2-366 by engaging in sexual intercourse with his eighteen-year-old stepdaughter. He entered this guilty plea after unsuccessfully arguing that it is unconstitutional to bar sex between adult steprelations. Unfortunately, his lawyer did not simply argue that the Virginia incest statute simply does not apply to sex between adult steprelatives, and the Virginia Court of Appeals declined to make Ferguson eligible for appellate relief on the question of whether the statute even prohibits sex between adult steprelations. Out of the three-judge panel, the two concurring judges recognize that the statute does not even criminalize the behavior for which Ferguson was convicted. Ferguson v. Virginia, ___ Va. App. ___ (March 3, 2020).

Does the Constitution prohibit criminalizing sex among adult steprelatives?

Out of the three-judge panel in the Ferguson incest case, opinion author Judge Randolph Beals finds that the United States Supreme Court’s Lawrence v. Texas decision (which for instance prohibits criminalizing consensual homosexual sex) does not bar statutes criminalizing sex between adult steprelatives, concluding that the coercive nature of such a relationship brings it outside the sexual freedom protections of Lawrence. Ferguson. 

Virginia’s misdemeanor prohibition against sex between those barred from marrying

Virginia law also makes it an incest misdemeanor to have sex through bigamy, with one’s birth or adoptive parent or grandparent, with one’s sibling (even if a brother or sister by adoption), and between and uncle and niece or aunt and nephew. Va. Code § 18.2-366(A) & § 20-38.1.

As a lawyer defending sexual freedom for years, I know of the existence of a wide variety of sexual lifestyles, and that society and jurors should not be expected to look kindly on incestuous behavior.

Fairfax criminal defense lawyer Jonathan L. Katz is a highly-rated Norther Virginia attorney pursuing your best defense against felony, misdemeanor, DUI, drug and sex prosecution. Please call 703-383-1100 to schedule a free in-person consultation with Jon Katz about your court-pending criminal case.