The daughter, we are told, was 20 when the alleged affair began. The 1961 connection is not with the deed, but with the nature of how some people are dismissing the allegations as trivial.
A commenter on Columbia's newspaper site wrote, "Wait, why is consensual incest a crime? It might not be appealing to everyone, but if they're adults and they consent, who cares what they do?"
A commenter at Huffington Post wrote that a "four year prison sentence is extreme -- considering they are both consenting adults."
Salon writer Tracy Clark-Flory observed that there "are no allegations" that the daughter didn't give consent. "It isn't a clear-cut case of child abuse," Tracy wrote.
Whoopi Goldberg defended Roman Polanski's rape of a minor girl by claiming, "It wasn't rape rape." So I guess that this wasn't incest incest. Or something. That mere consent should determine the legality of a sexual act is a direct outgrowth of July 1961.
It was then that Enovid was first marketed as an oral contraceptive. From then on, it was known simply as The Pill. The Pill was the first contraceptive both to approach 100 percent effectiveness and to be entirely under control of women. We are only beginning to see the enormous changes that have been wrought by its invention and widespread use.
Of course pregnancies occurred prior to marriage before The Pill, but compared to today very few births did. Weddings "back in the day" legitimated the sexual union of a particular man and woman under the guidance of the greater community. In granting this license, society also promised structures beneficial to children arising from the marriage and ensuring their well-being.
Society's stake in marriage as an institution is the perpetuation of the society itself, a matter of much greater than merely private concern. Yet society cannot compel men and women to bring forth their replacements. Because of The Pill, the causal relationships between sex, pregnancy and marriage have been severed in a fundamental way. Since 1961, the marriage rate has plummeted while cohabitation and out-of-wedlock births have skyrocketed. (Almost every couple of the dozens of weddings I have officiated were already openly cohabiting.)
Today, weddings are much more symbolic than substantive, having become for most couples mainly a shortcut way to make the legal compact regarding property rights, inheritance and certain other regulatory benefits. But what weddings do not do any more is give to a man and a woman society's permission to have sex and procreate.
A direct outcome of these changes was greater acceptance of homosexuality followed by the move toward homosexual "marriage." Because The Pill enabled men and women to have sex without sex's usual result of pregnancy, the arguments against homosexual consanguinity began to wilt. If unrelated men and women can decide on their own whether to have sex outside society's interests or control, why can't gays? This is exactly the reasoning of the Supreme Court's 2003 Lawrence v. Texas decision, which struck down state laws against sodomy. As R.S. McCain explained,
Justice Anthony Kennedy's majority opinion described "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." The court overturned its own precedent in the 1986 Bowers v. Hardwick case. In Bowers, which had upheld Georgia's anti-sodomy law, then-Chief Justice Warren Burger wrote that there had been laws against homosexual behavior "throughout the history of Western civilization" and that such laws were "firmly rooted in Judeo-Christian moral and ethical standards." In Lawrence, Kennedy cited that statement by Burger and rejected it as dubious, contending that the Bowers precedent "demeans the lives of homosexual persons."
And so seven years later the question is seriously asked: if both unrelated straights and gays can on their own decide about sex, why not an adult father and adult daughter? Genetic danger? That answer's been laughable since, well, July 1961.
How Prof. Epsteins' case will resolve legally I won't predict. Under New York's law, consent is irrelevant. The act itself is illegal. But I will predict that if it goes to trial his defense will rest strongly on Lawrence v. Texas, claiming that incest's prohibition is based on religious texts and traditions of precisely the sort that the Supreme Court set aside in 2003. While this might not prevail in state court, who can deny that it might prevail in a federal appeal?
As a society we are coming to believe in nothing except our own personal autonomy. The problem (that is, if we can still assume there really is a problem) is simply one of preference: "Incest," wrote that Columbia commenter, "might not be appealing to everyone." The standard is only what one likes or not. Therefore we may decide for ourselves what is morally right or wrong, and in nothing more so than sexual conduct. So the fracturing of America continues.
Endnote: The Pill did not alone engender the changes in socio-sexual mores of the last 50 years. There were two other lethal arrows into the heart of traditional marriage. One was socio-commercial feminism, which encouraged women on the one hand to postpone or pass up marriage and childbearing in order to have careers outside the home, and on the other hand to be as sexually active as they imagined men to be.
The other arrow was the rise to pre-eminence in academia of post-liberal Christian theology and Bible scholarship, which has intentionally sought to free society from the Bible rather than help lead it to follow it. Massive numbers of papers and books have been written since the mid-twentieth century attempting to show that the Jewish and Christian Scriptures are patriarchal, oppressive documents that tell less the story of humanity's struggle with the divine, than they record proto-Marxist class and gender struggles of power, exploitation and domination. So today, anyone who expects a biblically-based argument for certain sexual mores to be taken seriously is living in dreamland.
(Some of this essay is drawn from an op-ed I wrote for the Wall Street Journal in 2004, which you may read here.)
Update: "Switzerland considers repealing incest laws." I'm glad I don't try to write humor; it's almost impossible to write satire now because real life outdistances the imagination.
The upper house of the Swiss parliament has drafted a law decriminalising sex between consenting family members which must now be considered by the government. ...
Daniel Vischer, a Green party MP, said he saw nothing wrong with two consenting adults having sex, even if they were related.
"Incest is a difficult moral question, but not one that is answered by penal law," he said.
And just how "difficult," really, can it be? One wonders whether Daniel Vischer has a little secret.
Update: Well, that didn't take long: Epstein's lawyer, Matthew Galluzzo, told ABC News,
"Academically, we are obviously all morally opposed to incest and rightfully so," he told ABCNews.com. "At the same time, there is an argument to be made in the Swiss case to let go what goes on privately in bedrooms."
"It's OK for homosexuals to do whatever they want in their own home," he said. "How is this so different? We have to figure out why some behavior is tolerated and some is not."