Abstract
The criminal law of incest that emerged in the United States after the Civil War played a key role in producing race, gender, sexuality, and the normative family through the bodies of children, effectively framing the problem of incest as one of social property interests. Drawing upon case analyses, this article illustrates the role of incest law in producing white female children as sites of both sexual pleasure and biological reproduction by framing incest through the property interests of white males. Read through insights from feminist legal theory, these cases help to clarify law’s framing of the problem of sex with children as inextricably linked to reproductively viable white girls, reflecting contemporary anxieties around the relationship between racial purity and whites’ property interests. This analysis reveals how the criminal law functions as a technology of propertisation, bolstering the property interests of fathers in service of a broader project of property consolidation and accumulation for white male elites, linking some children’s bodies to the reproduction of an exploiter class while excluding others.
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Notes
Even in pre-abolition US, white women had extralegal means of securing their own interests in property, including human property in Black slaves (Jones-Rogers 2019). Jones-Rogers’s work documents how white women were not only complicit in, but perpetrators of, sexual violence against Black men and women who were dominated through practices of slavery.
People v. Baker, 69 Cal. 2d 44 (1968).
See, e.g., State v. Smith, 30 La.Ann. 846 (1878), where a Louisiana defendant successfully appealed an incest conviction when the court found that the legislature had never defined incest as a crime.
State v. Keesler, 78 N.C. 469 (1878).
State v. Tucker, 174 Ind. 715 (1910) at 3.
People v. York, 29 Ill. App. 3d 113 (1975) at 846.
Murray v. State, 18 McCanless 51 (1964).
As a specifically American phenomenon, eugenics became “one of the most influential fads in American culture” (Gordon 2002, 73), as exemplified through ‘fitter family’ exhibits in state fairs, widespread public education and scientific discourse on the dangers of ‘heritable traits’ such as deafness, promiscuity, and ‘feeble-mindedness’, and the formation of the American Eugenics Society in 1922, which promoted the goal of eliminating undesirable traits through selective human breeding (see Farber 2008).
Acknowledging the history of feminist debate around the politics of using terms such as ‘victim’, following Quinlan (2017, 24) I use this language “to reflect the historical and contemporary contexts” in which law operates.
Rose v. State, 234 Miss. 731 (1958).
Ratcliff v. State, 234 Miss. 724 (1958).
Supra n 10 at 734.
Loving v. Virginia, 388 U.S. 1 (1967). It is worth noting that the plaintiff in Loving v. Virginia, the US Supreme Court case that rejected the constitutionality of miscegenation laws, was a white male.
Noble v. State, 22 Ohio St. 541, 1872 WL 39 (1872).
State v. Walker, 534 So.2d 81 (1988).
State v. Jarvis, 20 Or. 437 (1891).
Supra n 16 at 438.
Mercer v. State, 17 Tex. App. 452 (1885).
Supra n 18.
At the same time, the court noted that if the incest were procured through ‘undue influence’, the daughter would not be an accomplice.
Supra n 14 at 545.
De Groat v. People, 39 Mich. 124 (1878).
Supra n 22 at 124.
Tate v. State, 77 S.W. 793 (1903).
Yeoman v. State, 21 Neb. 171 (1887).
Supra n 25 at 670.
People v. Patterson, 102 Cal. 239 (1894) at 242.
Schoenfeldt v. State (1892) 30 Tex.App. 695, 18 S.W. 640 at 698.
Commonwealth v. Lynes, 142 Mass. 577, 8 N.E. 408, 56 Am. Rep. 709 (1886) at 408.
Supra n 19 at 411.
Colee v. State, 75 Ind. 511, 1881 WL 654 (1881).
Supra n 29.
See also see also Schoenfeldt v. State, supra n 28.
Supra n 25 at 670.
State v. Hurd, 101 Iowa 391, 70 N.W. 613 (1897) at 616.
Adcock v. State, 194 Ga. App. 627 (1890).
State v. Schad, 247 Kan. 242 (1990) at 409.
Supra n 37 at 407.
K.S.A. 21–3506(b).
K.S.A. 21–3501(2).
Supra n 37 at 408.
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Acknowledgements
The author would like to thank Tanya Serisier, Sarah Keenan, Silvia Posocco, the anonymous reviewers, and the Feminist Legal Studies editorial board for their thoughtful comments on earlier drafts of this article. Thanks also to Maggie Fannon for editorial assistance.
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Logan, J. Incest and the Production of Property in Children: Maintaining White Supremacy Through US Criminal Law. Fem Leg Stud 32, 53–75 (2024). https://doi.org/10.1007/s10691-023-09530-z
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DOI: https://doi.org/10.1007/s10691-023-09530-z