Incest (Marrying or Having Sex With a Blood-Relative) - Florida Statute 826.04

Florida Statute 826.04 makes it a crime to marry or have sex with a person you are related to by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece. Case law has held that this statute also applies to half-blood relatives. See Carnes v. State, 725 So. 2d 417, 418 (Fla. 2d DCA 1999).

This crime is normally committed not with individuals marrying each other but with the defendant typically being involved with a child. This creates the situation of also being charged with other crimes along with this crime such as rape. Any crime involving a child is also a difficult one because people automatically take the side of the child. It is important that you find a competent and experienced West Palm Beach criminal defense attorney to help you navigate these difficult charges.

In many Muslim countries it is legally permissible and encouraged for first cousins to marry one another. See http://en.wikipedia.org/wiki/Cousin_marriage

The state prosecutor has to prove beyond a reasonable doubt:

1. The relative was related by lineal consanguinity to the defendant;
2. The defendant either:
   1. Married the relative; or
   2. Had sexual intercourse with the relative; and
3. At the time, defendant knew the relative was his or her relative.

"Sexual intercourse" is the penetration of the female sex organ by the male sex organ. Emission of seed is not necessary.

Consanguinity can be either lineal (by blood) or collateral (same ancestors such as an uncle and niece). In Beam v. State, the victim was the adopted daughter and his niece by his marriage and the court held that this statute “does not extend to persons who are related by affinity or adoption[.]” Beam v. State, 1 So. 3d 33, 336 (Fla. 5th DCA 2009).

The defendant has to knowingly have sex or marry the relative. If the defendant did not know for whatever reasons, the defendant cannot be guilty. (Think of Luke Skywalker and Princess Leia.)

An uncle-in-law and niece-in-law have been held to not violate this statute. See Hull v. State, 686 So.2d 676 (Fla. 3d DCA 1996), review denied, 695 So.2d 701 (Fla.1997).

As stated above some religions allow for this marriage and although we have not seen a case we believe that one’s religious customs and practices would be a defense.

This crime is a third-degree felony which is punishable up to 5 years in prison and a $5,000 fine. This crime is ranked as a level 2 crime under the Florida Criminal Punishment Code.

If you have been arrested and charged with this crime, call our law offices today to schedule a 5 minute free consultation. It is important that we know all the facts. We need you to tell us your version of the events that happened. This information will be critical to putting together a defense strategy for your case. Our West Palm Beach criminal attorneys will find out what evidence the prosecutor has against you. We will then inform you of your options on how to proceed with the case. We can take the case all the way to trial, if you want.

We understand that all cases cannot be won. If this is the situation, we will not give up the fight but continue to pursue having your charges changed to lesser ones or your sentence lessened.