[r]elationship of the parties, or the existence of a marriage, is
irrelevant to the definition of the offense if the child is under
thirteen years old. For acts with children under age thirteen,
there is no distinction in penalty or in the categorization of the
harm, between sexual acts between father and daughter, for
example, and sexual acts with an acquaintance or a stranger.
Bienen, supra at 1565. Another critical change in the more progressive approach to sexual offense statutes is to recognize that consenting sexual relations that transpire between close relatives where both individuals are over the age of sixteen is no longer a crime. Id. Additionally, the modernized approach makes no distinction between homosexual and heterosexual acts and expands the definition of prohibited conduct. Id.
The need to replace traditional incest statutes with an expanded definition of sexual abuse was compelled by the circumstances being reported to social service agencies, hospitals, and therapists. Bienen, supra, at 1566. By recharacterizing what constituted child sexual abuse, and by including familial authority or relationship as a subcategory of the most serious sex offense, the modernized offense, rather than being inherently familial in nature, is structured more in terms of position of authority. See, e.g., N.M. Stat. Ann. §§ 30-9-10E, -11 (Michie 1978) (including as persons within position of authority parent, relative, household member, teacher, employer, or other person able to exercise influence over child); Wyo. Stat. Ann. §§ 6-2-301(a)(iv), 6-4-402 (Michie 2007) (defining those in positions of authority as parent, guardian, relative, household member, teacher, employer, custodian, and any other person who by reason of position is able to exercise significant influence over person).
Given that the prohibition against incest was focused historically on the relationship aspect rather than the sexual act and was impelled by inbreeding and succession- related concerns, it is high time for our Legislature to reexamine our incest laws for the purpose of rewriting those laws to more accurately reflect the societal concerns at issue today: proscribed sexual conduct. By defining the acts of prohibited sexual conduct in terms of familial relationship, our penal laws do not fully address the realities of protecting the children of this state from unsolicited acts of sexual conduct. On the other hand, continuing to criminalize consensual sexual contact between adults whose only relationship is by way of affinity when that relationship has ceased to exist by reason of death or divorce borders on the ridiculous. Between these two extremes, varying situations and combinations of offenses clearly remain that deserve close legislative review to assure that specified punishments are just and that appropriate public policy concerns are being met.
I am authorized to state that Justice Starcher joins in this concurring opinion.