The People v. McEvoy
154 Cal. Rptr. 3d 914
Cal. Ct. App.2013Background
- McEvoy appeals his incest and related convictions arising from a sexual encounter with his sister, challenging the incest statute as unconstitutional under due process for criminalizing consensual adult sex, but the court affirms.
- Appellant was charged with incest under Pen. Code § 285, oral copulation of an unconscious person (288a, subd. (f)), sexual penetration of an unconscious person (289, subd. (d)), attempted rape by drugs (261, subd. (a)(4)/664), and assault with attempt to commit rape (220, subd. (a)); prior felony and prison-term priors alleged.
- Jury trial began April 27, 2011; amended information to charge forcible rape (261, subd. (a)(2)) on count three; count four amended to attempted rape of an unconscious person; count three dismissed; verdict: incest and simple assault (count five) guilty, others not guilty or dismissed; total sentence 2 years 8 months (mitigated term doubled).
- Evidence included the August 2008 incident in which Doe awoke to her brother (Appellant) engaging in sexual activity; DNA from Doe’s vaginal sample matched Appellant; expert testimony on victims’ responses to sexual assault; defense asserted consensual activity.
- The court holds that California’s incest statute serves legitimate state interests—protecting family integrity and guarding against inbreeding—and that Lawrence v. Texas does not require invalidating incest prohibitions; discusses Scott v. People and other authorities supporting the statute’s constitutionality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 285 violates due process by criminalizing consensual adult incest | McEvoy argues Lawrence requires striking down laws banning consensual incest | People contends no fundamental right to consensual incest; state has legitimate interests | Not violated; rational basis and legitimate state interests sustain § 285 |
| Whether Lawrence controls the analysis of incest laws under due process | Lawrence protects private, intimate decisions, potentially invalidating incest bans | Lawrence does not apply to incest; standing interpretation supported by Scott | Lawrence does not render incest bans unconstitutional; jurisdictional rational basis upheld |
| Whether the incest statute’s aims justify criminalizing close-relative sex given societal interests | Incest is not universally prohibited and Lawrence questions apply | State has important interest in protecting family integrity and preventing inbreeding | California’s interests are sufficiently important to justify § 285 |
Key Cases Cited
- Lawrence v. Texas, 539 U.S. 558 (2003) (liberty interests in private, consensual sexual conduct but not extended to all incestuous relations)
- Scott v. People, 157 Cal.App.4th 189 (2007) (upheld incest prohibition against consensual adult incest under rational-basis review)
- Bowers v. Hardwick, 478 U.S. 186 (1986) (overruled by Lawrence; historical limitations on sexual privacy claims)
- Lowe v. Swanson, 663 F.3d 258 (2011) (rejected Lawrence-based challenge to incest prohibition; state interests deemed substantial)
- Muth v. Frank, 412 F.3d 808 (2005) (federal appellate rejecting challenge to incest prohibition under Lawrence)