Full blood Brother and sister are seperated when sister is 9 months old and brother 4 years old. Fast forward 20 years. Brother finds his mom and sister and meet for the first time as adults. Fast forward 20 more years to today. Brother and sister have been living together happily as husband and wife for 20 years and have a 12 year old daughter. They both confess to an ongoing sexual relationship. A very reluctant grand jury indicts brother and sister for prohibited sexual contact. CPS will not remove the child. Today they are all still living as a happy family unit. 12 year old daughter seems normal.

They have violated the letter of the law. Have they violated the spirit of the law?
Do they need to register as sex offenders?
Where do you start in plea negotiations?
What would you do as a prosecuter?

In that kind of situation, perhaps gather all your strength, recall; "It shall be the duty of all prosecuting attorneys, including special prosecutors, not to convict, but to see that justice is done," and make your decision with no regrets which ever way you go. Whatever you, do. Good Luck.

This may be the chickens way out...but what does the Grand Jury say???

Lets see- no family violence reported, no issues with a child in need of supervision, no dangerous conditions in the home, no danger to the public, no drug use, no alcohol abuse reported, the prohibited sexual relationship did not arise out of a coercive family environment... If only all of my criminal defendants had such problems!

You've also got to wonder- how many marriages involving a spouse who was an adopted child are between people who are more closely related than they might think?

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Originally posted by TS:
Brother and sister have been living together happily as husband and wife for 20 years ...

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Common-law, or do they have a marriage certificate?

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They have violated the letter of the law. Have they violated the spirit of the law?

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Um ... yeah. Isn't this exactly what the law is designed to address? PC 25.02 is specifically addressed to people who knowingly have sex with a relative, period. In what other "spirit" could it have been intended?

Brother and sister may appear to have a common law marriage - but I do not believe that they can. For there to be a common law marriage, the parties must legally be able to marry each other. Thus, no common law marriage between siblings, persons of the same sex, (some) minors, a person who is already married to another, etc.

Shannon,
They did not grow up as "relatives", they grew up as strangers. They were strangers when they met as adults. Can you see a distinction. It does not excuse the crime, but doesn't it put a different light on it?

Perhaps the terminology "living as husband and wife" is incorrect. They were shacked up.

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Originally posted by TS:
Shannon,
They did not grow up as "relatives", they grew up as strangers. They were strangers when they met as adults. Can you see a distinction. It does not excuse the crime, but doesn't it put a different light on it?

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Oh yes, I understand. That does somewhat temper the "ick" factor. But still, I think the intent behind the law was probably to stop close relatives from procreating if at all possible. But that's just my opinion--and in no way am I suggesting that this case must be pursued. That's above my pay grade.

Here's one interesting thought: To what extent does the Lawrence opinion (123 S.Ct. 2472) legalizing homosexual conduct impact the prosecution of a case like this? The facts you laid out--including the existence of healthy offspring and assuming no other miscarriages, etc.--might support a defense argument that the State cannot criminalize this consensual conduct as applied to these actors.

"The game the whole family can play!"

Talk about a deep, dark family secret! That beats hands down the usual, "Uncle Jimmy likes to dress up in stiletto heels, glop on the mascara, and make us call him Julie". Regardless of whatever rationale the brother and sister may have come up with, that's a lot for their daughter to have to live with. She didn't get a say in all this, did she? Beyond the emotional aspects, it seems likely she might be at increased risk for passing along problematic recessive genes, etc. If they were adults when they were "reunited", they were also old enough to be able to figure out that this was a really bad idea, and I'm pretty sure most people have the sense to realize that kind of thing's against the law, even if they don't know the details.

Sounds like that scene out of "Joe Dirt." ("You're my sister, you're my sister!")

When they were reunited as adults weren't they told that they are brother and sister. At first meeting each other they were aware of the famalial relationship. They knew going into the "marital" relationship that it was between brother and sister. Seems to me they entered into the relationship knowing it was wrong. It is not like they never knew they were brother and sister -- likie two strangers adopted at birth never knowing they are related until after they become involved with each other.

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Seems to me they entered into the relationship knowing it was wrong

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Once they had a baby 12 years ago it became comparatively more wrong for them to split up.

... meanwhile the limitations for standard adult/adult sexual assault is 10 years and its only seven years for arson.

TS, it seems to me you have already made up your mind. You know the case better than any of us. You said the GJ was reluctant to indict them. Do you think a jury in your county would convict them? I know in every county I have worked in when it comes to sexual assaults where there is not a very big age difference (but more than the 3 yr defense) and the GJ thinks the victim wasn't such a victim, they refuse to indict -- even though the case meets the elements of the offense. I say do what you think is right.

I think you should prosecute them. The fact that they got "lucky" and had a child without any genetic deficiencies does not mean that you should dismiss the case. Their next child may not be so fortunate. The judge may see fit to give them probation or deferred, but they need to be prosecuted.

Is there a drug test for birth control pills?