Criminal Justice

Not Tonight, Honey. It's a Felony.

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The United States is the only Western country in which marriage between first cousins is widely prohibited. Twenty-five states still ban such unions, even though the genetic justification for such laws has been thoroughly discredited. (While married cousins are somewhat more likely to produce children with birth defects, the hazard is small, comparable to the risk faced by women who have children in their 40s.) "The laws against cousin marriage are archaic, outdated and counterproductive," says Kansas State University anthropologist Martin Ottenheimer, author of Forbidden Relatives: The American Myth of Cousin Marriage. Imagine my surprise, then, at discovering that Texas, where I live, not only prohibits cousin marriage but adopted the ban only five years ago. Why? Apparently because the legislators who approved the change were not paying attention. This is how CousinCouples.com describes the circumstances:

Representative Harvey Hilderbran introduced an amendment that was tacked on a bill that strengthened child protection laws in the state of Texas. This was not a stand-alone bill, nor would a stand-alone bill ever be passed on this day and time.

I spoke with a spokesperson for Representative Hilderbran. I was informed that the bill was aimed at folks with plural marriages (Bigamists). They simply borrowed language from Utah, of all places.

Worse, Texas also copied Utah by criminalizing sex between cousins, which is now included in the definition of "prohibited sexual conduct," a third-degree felony punishable by up to 10 years in prison. And if you're thinking, "It may be on the books, but surely they never prosecute anyone for that," you're wrong:

Two first cousins were indicted this week under state law after a police investigation discovered the two had sex.

Ruben Perez and Elvira Martinez were named in two separate indictments, each on two counts of prohibited sexual conduct.

The charge against Perez was enhanced from a third degree to a second degree felony [which carries a penalty of up to 20 years in prison] because he had a previous felony conviction on Aug. 13, 1992, on a charge of possession of a controlled substance, cocaine.

Perez was placed on community supervision after that conviction but the probation was revoked on Feb. 23, 1993.

Martinez's offense was listed as a third degree felony. If convicted, she faces up to 10 years in prison and a fine of $10,000.

The cousins were accused by BPD investigators of having sex with each other even though they knew they were first cousins.

Based on the estimate that 0.1 percent of American marriages (vs. 20 percent of marriages worldwide) involve first cousins, this law has transformed thousands of Texans into felons for the crime of having sex with their spouses. While some states that prohibit cousin marriage nevertheless recognize such unions when they are performed elsewhere, it's hard to see how Texas can, since it would then be condoning an ongoing felony.

Wait, there's more. Violation of the ban on "prohibited sexual conduct" triggers lifetime registration as a sex offender, putting married, sexually active cousins in the same category as rapists and child molesters.

More on cousin marriage here.