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March 2, 2007

Does Lowe deserve a lower sentence?

Over at Volokh, Jonathan Alder has this effective account of State v. Lowe, the Ohio Supreme Court's recent decision upholding the constitutionality of the state's prohibition on incest as applied to consensual sexual relations between a step-father and his adult step-daughter.  How Appealing has had a lot of prior coverage of the case here and here.

The case has understandibly garnered attention because of the conviction itself raises an interesting due process liberty issue.  But, after reading the case, I could not help but wonder about whether the not-minor sentence imposed might ground a different kind of legal challenge.  Defendant Lowe, after pleading no contest, received a sentence of "120 days of incarceration and three years of community control [and was also classified] as a sexually oriented offender."  Though perhaps there were some unstated aggravating facts, this seems to me to be pretty harsh sentence for consensual sexual relations between two willing adults.

March 2, 2007 at 03:39 PM | Permalink

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I had a bit to say about the case yesterday. Volokh Conspiracy and Sentencing Law Policy have emphasized different aspects of the case in their coverage. Professor Berman focused on the sentence (probably not a surprise): The case has understandibly [Read More]

Tracked on Mar 2, 2007 6:56:36 PM

Comments

The "ick" factor, no doubt, contributed to this guy's sentence.

Posted by: federalist | Mar 2, 2007 4:26:34 PM

Consent was disputed. Associated Press reports "His 22-year-old stepdaughter accused him of having sex with her in 2003 while she was passed out after a night of partying. He claimed the sex was consensual."

Posted by: John Carr | Mar 2, 2007 5:38:31 PM

Hmmmmmmmm. Unproven conduct enhancing a sentence--sounds a lot like the Genarlow Wilson case--does the "ick" factor here reduce the outrage? What sayeth the vociferous Genarlow supporters?

Posted by: federalist | Mar 3, 2007 2:50:00 AM

Can sex between a parent and child ever be fully consensual? Even after they are adults, I doubt they are equals in dealings with each other.

Posted by: jvarisco | Mar 3, 2007 2:43:47 PM

Courtesy of CCAP:

Case Name: People v. Scott , District: 4 DCA , Division: 2 , Case #: E039093
Opinion Date: 2/14/2007 , DAR #: 2125
Case Holding:
Appellant challenged his conviction for incest with his 18-year-old daughter in violation of Penal Code section 285, arguing that section 285 violated his due process rights under the Fourteenth Amendment because it criminalizes incest between consenting adults. The appellate court disagreed and affirmed the conviction. California has a legitimate interest in maintaining the integrity of the family unit, and in protecting persons who are not in a position to freely consent to sexual relationships with family members, and in guarding against interbreeding.

Posted by: George | Mar 3, 2007 8:24:49 PM

There are many differences between Lowe's case and Wilson's case that make the latter more sympathetic/unjust. Among the many, Wilson was sentenced to 10 years compared to Lowe's 120 days. Also, if Wilson did the identical conduct today or had he instead had intercourse with the girl on the date in question, the GA legislature would not deem his conduct felonious. The OH Code in Lowe's case did not have the inconsistencies of the GA Code in Wilson's case.

On another note, for comparative purposes concerning the harshness of Lowe's sentence see this report from CNN: http://www.cnn.com/video/partners/clickability/index.html?url=/video/world/2007/03/02/pleitg.incestuous.love.cnn

According to the report, under German law, an adult brother "spent more than 2 years in jail" for consensual sex with his adult sister, and he is facing a return to jail if the relationship does not end. The two adults met as teens, and the question of equality in the relationship (i.e. "can a step-daughter really consent"?) is not an issue in the reported case. What seems to be of concern, however, is the brother-sister’s insistence on producing multiple offspring.

Posted by: DEJ | Mar 4, 2007 3:38:07 PM

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