Assimilated Incest Offense

8/17/2021

Read United States v. King, which discusses the assimilation of a NJ incest offense at court-martial. The offense elements are:

"c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

...

(3)The victim is at least 16 but less than 18 years old and:

(a)The actor is related to the victim by blood or affinity to the third degree...."

Title 2C, Chapter 14, Section 2, Subsection (c)(3)(a) of the New Jersey Code of Criminal Justice

Since this would punish consensual private sex with someone over the age of consent, shouldn't there have been a Marcum analysis?

1984

8/17/2021 07:25:31 pm

No, because it was not consensual;

Based on the charge sheet, to convict Appellant of sexual assault in violation of Article 120, UCMJ, the Government was required to prove beyond a reasonable doubt: (1) that at or near JBMDL, New Jersey, on or about 11 September 2016, Appellant committed a sexual act upon JK by penetrating her vulva with his mouth; and (2) that Appellant did so by causing bodily harm, to wit: a nonconsensual sexual act with an intent to gratify the sexual desire of United States v. King, No. ACM 39583.

Anon

8/17/2021 07:42:02 pm

Looks like you just ran an as-applied Marcum test. And proved the point that it should have been done.

Isaac Kennen

8/19/2021 05:21:57 am

A person must be over 18 in New Jersey to consent to incest.

Therefore, this statute does not punish sexual acts between consenting adults.

Therefore Lawrence does not apply.

Therefore Marcus does not apply.

Philip D. Cave link

8/19/2021 09:16:18 am

1. Does it matter that the UCMJ already has "incest" covered in various provisions of 120+?

2. Does it matter that under the UCMJ, a person over 16 can consent to sexual activity?

3. Does it matter that Maryland has something similar which is intended to cover step-children who have been adopted?

Brenner M. Fissell

8/19/2021 12:02:42 pm

I think you are all quite confused about what Marcum requires. You are claiming that it is not "applicable" when in fact you are applying the Marcum analysis in making that same argument. A Marcum analysis is triggered if a facial reading of an offense potentially implicates the Lawrence liberty interest--THEN, Marcum "applies" in the sense that an as-applied analysis is conducted to see if the accused's actual conduct falls outside of Lawrence.

"Thus, this case presents itself to us as a challenge to a discrete criminal conviction based on a discrete set of facts. The question this Court must ask is whether Article 125 is constitutional as applied to Appellant's conduct. This as-applied analysis requires consideration of three questions. First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis *207 in Lawrence? 539 U.S. at 578, 123 S.Ct. 2472. Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?"

United States v. Marcum, 60 M.J. 198, 206–07 (C.A.A.F. 2004)

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Assimilated Incest Offense

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