Factcheck: Mexican Laws Against Incest

Yesterday, the Washington Post had an op-ed on rape which contains the following claim:

“In Mexico, for example, the rape of a teenage girl by her father is defined as voluntary until it is proved otherwise. Under most state criminal codes in Mexico, incest is considered a crime against the family, not against the physical integrity of the victim, and the underage victim is initially considered as much a criminal as the adult perpetrator.”

This is appalling, if true. But is it true? It’s hard for me to say: my Spanish might charitably be described as rusty, my Mexican legal research skills are nonexistent, and while I suspect that some worthy organization has a good database of international rape statutes, I haven’t been able to find it. Still, I’ve written down what I’ve found. If I’m wrong, I hope someone will correct me. And if some one knows a good survey of the relevant laws, I’d be interested to read it.

The Mexican federal criminal code is here (pdf, sexual crimes are Articles 259-277). Unless I’m mistaken, the relevant section contains no presumption of consent:

“Articulo 272.- Se impondra la pena de uno a seis anos de prision a los ascendientes que tengan relaciones sexuales con sus descendientes.

La pena aplicable a estos ultimos sera de seis meses a tres anos de prision.”

And Article 266bis seems to say that the normal penalties for rape will be raised by half when various conditions obtain, including the rape of a child by his or her father.

As far as Mexican state law is concerned, I’ve checked the Federal District’s (pdf, see Articles 174-182), Durango’s (pdf, see articles 323 and 392-8) and Quintana Roo’s (see Sec. 1, Title 4 and Sec. 2, Title 1) penal codes. (States chosen more or less at random from those that have their codes online.) In the Federal District, incest is defined as a crime against liberty, sexual security, and normal psychosexual development, not as a crime against the family. In Durango and Quintana Roo, it is considered under two headings: incest, which is a crime against the integrity of the family, and rape, which is a crime against liberty and personal security (Durango) or sexual liberty and its normal development (Quintana Roo). It is not true in any of these jurisdictions that having sex with one’s children is defined solely as a crime against the family.

In all three states, incest is defined to include sex with one’s parents; therefore, when someone above the age of consent has sex with her father, absent evidence of violence or coercion, she is considered to have committed incest, as is her father. If there is evidence that she did not consent, she is presumably not criminally responsible; if she did consent, however, that does not let her father off the hook for incest, as far as I can see.

Consent would, however, show that she was not raped. In all three states, sex with someone under the age of consent is defined as rape, and in all three states, as in the Federal Code, the penalty for rape is raised by half in the case of parents molesting children, but not for children who rape their parents. In all three states, however, consent by a person who is old enough to give it is a defense against a charge of rape, as one would expect.

The problem is the age of consent, which is twelve to fourteen in most of Mexico. That’s why “in Mexico, for example, the rape of a teenage girl by her father is defined as voluntary until it is proved otherwise”: because all sex by kids over twelve or fourteen is presumed to be voluntary. When I read the Post’s op-ed, I took it to mean that Mexican law presumes that fathers have a right to have sex with their teenage children. In fact, it does not: incest is illegal even if both parties are over eighty, and rape is wrong at any age, though of course it can only be rape if the victim did not consent. What Mexican law does presume is that children of twelve or fourteen are competent to consent to sex. That is wrong, but it’s wrong in a different way.

I checked this out because, as I said, I thought that if Mexican law did, indeed, say that teenagers raped by their fathers are presumed to have consented, that would be appalling; but that if it did not say this, it would be worth correcting. Just as people ought not to be accused of certain things without good reason, so (it seems to me) entire countries should not be accused of having grotesque legal systems. (Obviously, though, enforcement is another matter entirely, and one that I have not been able to check.)