A-4197952
Decided by Central Office March 21, 1949
Crime involving moral turpitude — Incest — Stepfather and stepdaughter — Criminal Code of Ohio, section 13023.
1. The offense of "incest" between stepfather and stepdaughter in violation of section 13023 of the Criminal Code of Ohio involves moral turpitude.
2. A contrary previous holding ( Matter of B----, A-6660140, C.O., Oct. 31, 1947) as to a similar offense in violation of section 10-4206, Burns Indiana Statutes Annotated (1933) is overruled.
CHARGE:
Warrant: Act of 1917 — Sentenced more than once after entry for crimes — burglary; burglary and larceny; highway robbery; and incest and rape (four counts).
BEFORE THE CENTRAL OFFICE
Upon consideration of the entire record, the findings of fact and conclusions of law proposed by the Presiding Inspector and served on the respondent on February 2, 1948, are hereby adopted.
Discussion: The respondent is a 48-year-old married male, a native and citizen of Yugoslavia. He has lived in the United States since 1912. His criminal record is fully set out in the presiding inspector's opinion. That the offenses of burglary, larceny, highway robbery, and rape are crimes involving moral turpitude requires no discussion.
With regard to the offense of incest, it has been held that this is a crime that may or may not involve moral turpitude ( Matter of D----, 56091/473 (1943) [father and daughter; Mass.]; Matter of C----, A-5896873 (1941) [first cousins; Arizona]). The conviction in the instant case was under section 13023 of the Criminal Code of Ohio which provides:
Whoever, being nearer of kin by consanguinity or affinity than cousins, having knowledge of such relationship, commit adultery or fornication together, shall be imprisoned in the penitentiary not less than 1 year nor more than 10 years.
This statute is similar to an Indiana statute that was considered in the Matter of B---- (A-6660140 C.O. 1947) dealing with incest between stepfather and stepdaughter in that State. In the B---- case, it was stated that as incest between stepfather and stepdaughter is merely malum prohibitum; that as in some jurisdictions sexual intercourse between stepfather and stepdaughter does not constitute the crime of incest; and that as the offense is not punishable in Indiana as incest when the affinity ceases, the offense is not a crime involving moral turpitude. Under the Indiana statute, also, sexual relations between stepfather and stepdaughter after the termination of the marriage between the stepfather and the stepdaughter's mother are not incestuous ( Noble v. Smith, 22 O.S. 541). In view of the similar statutes, the B---- case might be regarded as a precedent for holding in the instant case that the offenses of incest of which the respondent was convicted are not crimes involving moral turpitude. On further consideration of the matter, however, it is concluded that the crimes of incest between stepfather and stepdaughter, both under the Indiana statute and under the Ohio statute, are crimes involving moral turpitude.
The indictment in the instant case charged in the two counts relating to incest that the respondent, being then and there a married man, committed fornication by having sexual intercourse with his stepdaughter, well knowing that she was his stepdaughter. The acts charged are not acts that are wrong merely because a statute prohibits them. They are an affront to decency and morality, no less offensive to the moral sense of the community because the relationship is one of affinity rather than consanguinity. Therefore, more than considerations of eugenics are involved. That these acts may not be denominated incest and may not be punishable as incest in some jurisdictions does not indicate that in those communities they are not regarded as reprehensible and are not repugnant to generally accepted standards of morality. The offense is one that indicates in the perpetrator — almost as much as any offense could — baseness, vileness, and depravity in the social duties that a man owes to his fellowman and to society in general. It is concluded, therefore, that the offense of incest between stepfather and stepdaughter, both in Indiana and Ohio, is a crime involving moral turpitude. The contrary holding in the B---- case is overruled.
Recommendation: It is recommended that the alien be deported to Yugoslavia at Government expense on the charges stated in the warrant of arrest.
It is further recommended, That execution of the warrant of deportation be deferred until the alien has been released from imprisonment.
So ordered.