INCEST: Murder of the Soul: Chapter Four
Blood relationships under criminal legislation are sometimes considered to be a component
element of some crimes, such as the crime of neglecting children or neglecting to support
them43. It is sometimes also considered to be an aggravating circumstance to increase
the penalty of a criminal act, such as the crime of the intentional killing of a descendant,
in which case the offender could face the death penalty44. On the other hand, it could be
considered as a mitigating circumstance to reduce the penalty for a criminal act, such as
a crime where a mother kills her newborn child to avoid shame45.
Blood relationships are considered to be a basic element of the crime of incest because
the crime cannot take place without it, as far as it is stated in the aforesaid laws. If blood
relationships are omitted, the criminal act would then be classed as a crime of adultery
instead.
The aim of criminalizing legislation goes beyond considering blood relationship as a
component element of incest. It is to protect the provisions of the taboos arising out from
the blood tie which means the protection of the legislative taboo that bans legal or illegal
sexual relationship between persons of blood relationship. The expression of persons of
blood relationship is absolute without any restriction which means that this protection
includes all women ascendants of the man such as the mother and grandmother and his
women descendants such as the daughter, granddaughter, sister, niece, nephew and the
descendants of his grandfather and grandmother such as aunts on maternal side or aunts
on paternal side or the aunt (on maternal or paternal side) of his ascendants. The taboo
also applies to women relatives by affinity whether this taboo is permanent (married
stepdaughter, wife of his ascendant, or wife of his descendant) or contemporary (sister of
his wife or his sister in law)46.
The act of incest wasn’t limited to aforesaid relatives as we noticed, as the law of Syria,
the law of Jordan and the law effected in the Palestinian controlled territory added to
that category the persons of trust (guardian, custodian) and persons with actual authority
they exercise over those under their control and their orders and instructions are binding
to them. This category is added to the previous one due to the authority and control it
does have over others and the trust and obedience relationship which arises between both
parties. This relationship allows the persons with authority to influence the life of their
subjects such as the relationship of a school principal with students and the relationship
of correction and rehabilitation centers’ officers with inmates.
The question asked by (al-Thahabi) in his discussion was about the classification of the
crime of sexual act between an employer and his woman servant; is it incest or adultery?
He believes that it is adultery in accordance with the aforesaid text about the actual
authority exercised by a person as the employer has domineering authority over the
servant working at his home but not actual authority47.
2. Mental Element (criminal intent)
43 Articles (185-186) from the penal code in effect in the Gaza Strip.
44 Article No. (328) from the penal code in effect in the West Bank.
45 Article (331) of the penal code in effect in the West Bank.
46 Personal Affairs Law No. 61, 1976.
47 al-Thahabi, 1997, “Sexual Crimes”,(1997) edition. 2. pp. 29-33, documented in Amal and Isra, Masis &
Dwekat and others, 2009, “Report on Family Violence on Palestinian Women”.
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