An Australian judge has suggested that legalized abortion and the availability of contraceptives may strip away the stigma surrounding incest and lead to its legality one day.
Judge Garry Neilson argued that incest is still a crime only "to prevent chromosomal abnormalities" in any potential pregnancies, "but even that falls away to an extent [because] there is such ease of contraception and readily access to abortion," as reported by The Sydney Morning-Herald.
Neilson, who sits on the district court in New South Wales, made his comments while presiding over a case of a brother accused of raping his younger sister. The defendant had pleaded guilty to raping his 10-year-old sister in the 1970s. The two were also accused of having sex in 1981 when she was 18 and he 26, a charge to which the brother has pled not guilty.
Neilson defended the later actions of the man, arguing that "by that stage they are both mature adults."
"A jury might find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men and was now 'available,' not having [a] sexual partner," the judge said.
The judge also compared incest with homosexuality and argued that as the stigmatization with the latter has passed, incest would too follow suit.
"If this was the 1950s and you had a jury of 12 men there, which is what you'd invariably have, they would say it's unnatural for a man to be interested in another man or a man being interested in a boy. Those things have gone," he said.
"The complainant has been sexually awoken, shall we say, by having two relationships with men and she had become 'free' when the second relationship broke down. The only thing that might change that is the fact that they were a brother and sister but we've come a long way from the 1950s – when the position of the English Common Law was that sex outside marriage was not lawful," he added.
The judge was vocally criticized by the prosecutor who asked that the case be heard by someone other than Neilson due to his "misogynistic" attitude.
"These remarks in my submission are completely disgraceful," Sally Dowling said. "The reference to abortion is particularly repellent."