# FILED
March 25, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

SESSION, 1999

AMI E. SMITH, ) ) No. 01C01-9811-CR-00438 Appellant ) ) WILSON COUNTY vs. ) ) Hon. J. O. Bond, Judge STATE OF TENN ESSEE, ) ) (Post-Conviction) Appellee )
For the Appellant : For the Appellee : Henry Clay

Barry Paul G. Summers Attorney at Law Attorney General and Repor ter 106 S. College Lebanon, TN 37087 Kim R. Helper Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 Tom P. Thompson, Jr. District Attorney General Robert Hibbett Asst. District Attor

ney General 119 College Street Lebanon, TN 37087

OPINION FILED: AFFIRMED
David G. Hay

es Judge1 The indictment char ged and it is not disput ed that t he appellant

was involv

ed in an incestuo us relation ship with he r paterna l uncle. Th e appe llant does n ot deny this re lationship. We are able to glean fr om the sparse record befor e us that t he incestuous r elati onship began while t he appellant

was stil l a minor and cont inued int o her majority. Her uncle was i n his midthirt ies when the r

elati onship began. No children wer e born as a resul t of thi s relati onship. The appellant’s brief indi cates that she suffers fr om various psychol ogical di sorders and was ei ghteen years ol d when charged wit h this off ense. 2 OPINION

The appellant, A mi E. Smi th, appeals the Wilson Coun ty Criminal Court’s dismissal of her

petition for post-convic tion relief. The appellant collaterally attack

s her conviction for incest upon the ground that Tenn. Code Ann. § 39-15-302 violates h er state constitutional right to privacy. Accordingly, she argues Tennessee’s incest statute is unconstitutional and her conviction for this offense is void.

After review of the r ecord, we affirm the trial c ourt’s denial of post-conv iction relief.
Background

On March 13, 1997, the appellant entered a guilty plea to one count of incest 1 and was sentenced to three y ears supervised

probation. As a condition of her probation, the appellant was required to wear an electronicall y mo nitored ankle bracelet. She destroyed the bracele t, and, as a result of this conduct, was charged with the crime of vandalism. The appell ant pled guilty to the charge of vandalism and was sentenced to two years in the Com munity C orrect ions program. This sentence was ordered to run consecutive to her three year sentence for inc est, which was re

voked and reimposed as a Community Co rrections sentence. Within three months of bei ng placed in the Community Corrections

program, the appellant v iolated at least seven of the terms and conditions of her behav ioral contract. Based on these new viol a tions, the tr ial court revoked her Community Correction sentence s and ordered that the appellant serve her effectiv e five year sentence in the Department of Correction.2 As a coro llary arg um ent, th e app ellant ass erts th at, sh ould t his co urt fin d Te nne sse e’s incest statute unconst itutional under our state const itution, her convi ction and sent ence for vandalism should a lso be se t aside as it arose fro m he r invalid con viction for inc est.

3 The Pos t-Co nvictio n Pro ced ure A ct pro vides priso ners a pro ced ure f or relie f whe n the ir conviction is void or void able bas ed upo n the abr idgem ent of a s tate or fed eral cons titutional right. Tenn . Code A nn. § 40- 30-203 . The ap pellant ave rs that T ennes see’s sta tute m aking inc est a pun isha ble of fens e infrin ges upon her s tate fu nda me ntal rig ht to p rivac y. Thu s, the issue is cognizabl e in a post- convicti on proceeding. Moreover, the State assert

s that th e appellant

has waived d eterm ination of this issue on appea l for failure to ra ise the issu e at prior he arings. Howe ver, the Sta te did not pr esent the statutory de fense o f waiver at th e post-c onviction lev el. There fore, we d ecline to ad opt the po sition of the S tate take n for the firs t time on appea l. See Rule 36 (a), Ten n. R. App . P.; State v. W hite , 635 S.W .2d 396, 3 98 (Te nn.Crim .App.19 82). Accordingly, the i ssue is entitled to a merits revi ew because the Stat e fail ed to plead wai

ver as an affirm ative defe nse. 3 No appeal was taken from either conviction or sentence. As a result , t he appellantis currently confined in the Tennessee Women’s Prison. On April 14, 1998, the appellantfiled th e present petiti on for pos t-conv iction relief.As the sole ground for relief,the appellant avers that “the crime of incest, betw een conse nting adults, in a privateand non-commercial setting is unconstitutional under the privacy provi sions of the State Constitution and [the cour t must] set aside her conv iction for the same.”2 On October 15, 1998 , the tr

ial cou rt deni ed the ap pellant relief.In dismissing the petitio n, the trial court found this st ate’s incest statute consti tutionally valid.

Analysis
Again, the appellant’s sole assi gnment oferror is whether Tenn. Code Ann. § 39- 15-302 is unconst itutional under the protections prov ided by the Constitution o f the State of Tennessee. 3 Specific ally, the a ppellant relies upon the Court of Appeals decision in Campbell v. Sundquist , 926 S.W.2d 250, 262 (Tenn. App.), perm. to appeal denied , (Tenn. 1996) (finding the Homosexual Practices Act unconstitutional), for the proposition that “an adult’s right to engage in consensual and noncommercial sexua l4 The appellant expressly

reserves deter

mination of the issue solel y on Tennessee constitu tionallaw. For this reason, this court deems it unnecessary to separatel

y analy ze her claim under the federal const itution.

5 "Fundamental ri ghts” have been def ined by the United Stat es Supreme Court as “those fundamental ri ghts that are implici t in t he concepts of order ed liber ty such t hat neit her li berty nor justice would exist if they were sacrificed.” See Palko v. Connecti cut , 302 U.S. 319, 58 S.Ct. 149 (1937), overruled on o ther grounds by , Benton v. Maryland , 395 U.S. 784, 89 S.Ct. 2056 (1969).
6 But see A LASKA C ONST ., Art. I, § 22 (right to privacy exp licitly reserved the rein); A RIZ
. C ONST ., Art. II, § 8 (sam e); H AW
. C ONST ., Art. I § 6 (sam e); I LL
. C ONST ., Art. I, § 6 (sam e); L A
. C ONST ., Art. I. § 5 (sam e); M ONT
. C ONST ., Art . II I § 10 (s ame); S. C. C ONST ., Art. I. § 10 (same); W ASH
. C ONST ., Art. I, § 7 (same). 4 activities in the privacy of that adult’s home is a matter of inti mate personal concern which is at the heart of Tenness ee’s protection of the right to privacy.”

4

The right to privacy is addressed within the context of due process guaranties. Protection against infringement of fundamental rights is guaranteed by both the United States and Tennessee Constitutions. See U.S. C ONST . amend. XIV; T ENN . C ONST . Art. I., § 8; T ENN . C ONST . Art. XI, § 8. See generally State v. Tester , 879 S.W.2d 823, 827 (Tenn. 1994). When a challenge is made alleging infring ement of a fundamental right, “strict scrutiny” of the legi slative classificati on i s only r equired when the class ification in terferes with the exercis e of a “fundamental right” or oper ates to the pe culia r disadvantage of a suspect class. S ee Evans v. Steelman , 970 S.W.2d 431, 435 (Tenn. 1998); Tester , 879 S.W.2d at 827 (citations omitted). H owever, if no fundamental right or suspect class is affected, the court must determine whether there is some rat ional basis to justify a clas sification set out in a statut e. Steelman , 970 S.W.2d at 435 (citation omitted). The re is no dispute th at the challenge d stat utory provision does not involve a su spect class, thus, our initi al determination remains whether the appellant’s r ight to privacy encompasses a guaranteed protec ted “fundamental right”5 to engage in incest uous sexu al activity.

Neither the United States Constituti on nor the Tennes s ee Constitution specifically refers to a “fundamental right to privacy.” 6 Nonetheless, it is well recognizedthat both documents contemplate such a fundamental right. See Davis v. Davis , 842 S.W.2d 588, 598-603 (Tenn. 1992), cert. denied , 507 U.S. 911, 113 S.Ct.5

1259 (1993). Indeed, the right of privacy is un animously understood to ex ist in the penumbra of various constitutional provisions. Kewanee Oil Co. v. Bicron Corp. , 416 U.S. 470, 94 S.Ct. 1879 (1974) (recog nizing privacy is a fundamental right guaranteed bythe federal constitution); Da vis , 8 42 S.W.2d at 600 (recognizing right to privacy guaranteed by the Tenness ee Consti tution). To illustrate, the right of privacy as gua ranteed b y the Tennessee Constitution may be found in “Section 3 guar anteeing freedom of worship;” “Sectio n 7 prohibi ting unreasonable searches and seizures;” Section 19 guaranteeing freedom of speech and pr ess;” and “Section 27 reg ulating the quartering of soldiers.” Davis , 842 S.W.2d at 600.

Without doubt, our society is interested in protecting the priv acy of the individual citizen from violation by way of intrusion int

o his home, publicizing his purely personal affairs, compelling divulgence of his views and beliefs which would expose the citizen to extra legal sancti ons and from inroads into the indi vidual’s rep ose and re laxation. C HESTER J A MES A NTIE AU , M ODERN C ONSTITUTION AL L AW (2d ed. 1997). According ly, the right to privacy promises a re a lm of personal liberty, ex cept in very limited circumstances, which the government may not enter, and the result is a right of persona l priv acy, or a guarantee of cer tain areas or zones of pri vacy. See Planned Parenthood v. Casey , 505 U.S. 833, 847, 112 S.Ct. 2791, 2805 (1992); Stanley v. Georgia , 394 U.S. 557, 89 S.Ct. 1243 (1969) ; see also 16B A M . J UR . 2d Constitutional Law § 603 (1998).Th is right, also r eferred to as “the right to be let alone,” see Olmstead v. United States , 277 U.S. 438, 478, 48 S.Ct. 564, 572 (1928) (Brandeis, J., dissenting), overruled on other grounds by , Berger v. New York , 388 U.S. 41, 87 S.Ct. 1873 (1967) and Katz v. United States , 389 U.S. 347, 88S.Ct. 507 ( 1967); see also Davis , 84 2 S.W.2d at 599, has been interpreted by the Supreme Court to provi de protection against governmental interference in a

broad array of human affairs. See, e.g. , Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705 (1973) (right to abortion), holding modified by , Casey , 505 U.S. at 833, 112 S.Ct. at 2791 ; Eisenstadt v. Baird , 405 U.S. 438, 92 S.Ct. 1029 (1972) (right to use contraceptives); Loving v. Virginia , 388 U.S. 1,7 We acknowledge precedent recogniz ing a more extensi ve right of privacy

under both t he Tennessee Constitut ion and thi s State’s constitu tionaljurisprudence than the corresponding ri ght to privacy pro vided by the Federa l Constitution

. See Campbell v. Sundqui st , 926 S.W .2d at 261

. Indeed , our sup rem e court h as state d “there is n o reaso n to ass ume that there is a com plete congruency between o ur constitution and its federal counterparts.” Dav is , 842 S.W .2d at 600

. Notwithst

anding the br

oader protect ion affor ded by the Tennessee Const itution, under whi ch Tennessee’s incest

statute is today

uniquely

challenged,we conclude that guidance by precedent establish ed by the U nited State s Supre me C ourt in defin ing the bo undarie s of prote cted liberty 6 87 S.Ct. 1817 (1967) (right to marry) ; Griswold v. Connecticut , 381 U.S. 479, 85 S.Ct. 1678 (1965) (right to mari tal privacy); Rochin v. California , 342 U.S. 165, 72 S.Ct. 205 (1952) (right to bodily integrity); Prince v. Massachusetts , 321 U.S. 158, 64 S.Ct. 438 (1944) (right to family re lationships); Skinner v. Oklahoma ex rel. Williamson , 316 U.S. 535, 62 S.Ct. 1110 (1942) (rig ht to procreate); Meyer v. Nebraska , 262 U.S . 390, 43 S.Ct. 625 (1923) (right to d irect education of children) . It is clear from the prec edent established by the Supreme C ourt that the constitutional right of privacy places

limits
on a state’s right

to interfere with a pers

on’s most basic decisions regarding family and parenthood. See Casey , 505 U.S. at 849, 112 S.Ct. a t 2 806. Compare Bowers v. Hardwick , 478 U.S . 186, 106 S.Ct. 2841 (1986) (no right to engage in homos exual sodomy); Reynolds v. United States , 98 U.S. 145, 25 L.Ed. 244 (1878) (no right to practice polygamy).
Notwithstanding

the individual rig hts heretofore recognized as embraced within the right to privacy, there is no general endorsement of an “ all-encompassing‘right of privacy.’” Casey , 505 U.S. at 9 5 2, 112 S.Ct. at 2859 (Rehnquist, C.J., dissenting). Indeed, the courts “ha[ve] alw ays been reluctant to expand the conce pt of sub stantive due process because guidepost s for responsible decision making in this unchartered
area are scarce and open-ended.” Washing ton v. Glucksberg , -- U.S.--, 117 S.Ct. 2258, 2267 (1997). In determining whi ch righ ts are fundamental, the courts are not unrestrained to decide cases in lig ht of their personal and privat e notions. Griswold , 381 U.S. at 493, 855 S.Ct. at 1686-87. Rather, i f the right cannot be logic ally deduced f rom the text of th e Constit ution, “t he court m ust look t o the trad itions an d collect ive conscience of our people to determine whether a principle is so root

ed as to be ranked
as fundamental.” 7 Id. at 493, 85 S.Ct. at 1686-87; see also Glucksberg , -- U.S. at --,interests is approp riate and n ot antithetica l to our state c onstitution. Cf

. Dav is , 842 S.W.2d at 600 (“the right to privac y incorpora tes som e of the attrib utes of th e federa l constitutiona l right to privacy and, in any given fact situati on, may also share som e of its contours”).

8 The holding I n Campbell v. Sundqui st , 926 S.W .2d a t 250 , igno res th e Su prem e Co urt’s warning agai nst overexte nding the scope of an asserted “ fundamental ri ght.” I n declari ng the Hom osexu al Practice s Act un constitution al, a pane l of the Cou rt of Appe als determ ined that, und er the Ten nes see Con stitutio n, a fu nda me ntal rig ht ex ists in “an a dult’s right to enga ge in consensual and no ncomm ercial sexual activities i n the privacy of that adult’s home.” Cam pbe ll , 926 S.W.2d at 262. Clear ly, the ult imate holdi ng in Cam pbe ll sweeps too broadly as forewarned by Justice Scalia. 7 117 S.Ct. at 2262; Casey , 595 U.S. at 980, 112 S.Ct. at 2874 (Scalia, J., dissenting); Ohio v. Akron Center for Reproductive Healt h , 4 97 U.S. 502, 110 S.Ct. 2972, 2984 (199 0) (Scalia, J., concurring). With these historical notions at han d, the court must then ask “whether a rig ht invoked is of such a char acter that it cannot be denied w ithout violatingthese fundamental principles of li berty and justice which ar

e at the base of

all of our civil and political institutions.” Griswold , 381 U.S. at 493, 85 S.Ct. at1686-87. In so doing, the court must be mindful to “exercis e the utmost care . . . lest the liberty protected . . . be s ubtly transformed into the pol icy preference of the . . . cour t.” Glucksberg , -- U.S. at ---, 117 S .Ct. at2268 (citing Moore v. East Clev eland , 431 U.S. 494, 502, 97 S.Ct. 1932, 1937 (1977)).

In tracing the tradition and customs encompas sing an asserted rig ht or privilege, the reviewing court must narrowly prescribe “ a careful description” of the asserted fundamental right in order to prevent the promulgation of a constit utional rule of law broader than that required by the precise facts before us. Glucksberg , -- U.S. at --, 17 S.Ct. at 2268. Indeed, “speaking no more broadly than is absol utely required av oids throwingsettled law into confusion; doing so . . . preserves a c haos that is evident to anyone who can read and count.” 8 Webster v. Reproductive H ealth Services , 492 U.S. 490, 535, 109 S.Ct. 3040, 3065 (1989) (Scalia, J., concurring). See, e.g. , Bowers v . Hardwick , 478 U.S. at 1 96-96, 106 S.Ct. at 2846 (Court reco gnized, in holding no fundamental rig ht for homosexuals to engage in sodomy, problems associated with expanding scope of asser ted right to include voluntary

sexual conduct between consenting adults including exposure to incest, polygamy, and other pr ohibited crimes committed in the home). Thus, we decl ine the appellant’s invitati on to broadly construe9 Tenn. Code Ann. § 39-15-3 02 provides: (a) A person commits incest who engages in sexual penetrati on as defined i n § 39-13-5 01, with a p erson, k nowing such p erson to be, withou t regard to legitim acy:

(1) The person’s natural pa rent, chi ld, grandp arent, gr andchild, uncle, aunt, nephew, niece, stepparent, stepchild, adoptive parent, adoptive child; or (2) The person’ s brother or sister of

the whole or

half-bl ood or by adoption. (b) In ces t is a C lass C felo ny.
10 Discovered i n 1901, the Code of Hamm urabi, a Babyloni an king, puni shed the incestuo us relation ship betw een m other an d son b y burning o f both pa rties at the s take. See S ARA R OBBINS , L AW : A T REASURY OF A RT AND L ITERA TURE 20-22 (1990).
11 The unim porta nce of blo od tie s in th e pro hibitio n of in ces t is evid ent fr om soc iety’s condemnation of i ncestuous rel ations l ong before peopl e knew of its genetic eff ects. 8 incest as part of an alleged right to e ngage in private co nsensual non-commercial sexual activity. Rathe r, we pe rform our review w ithin the narrower bounda ries of an asserted right to engage in incestuous relationshi ps.

I nces t is the sexual intercourse or marriage between persons related to each other in any of

the degrees of consanguinity or affini ty that is p rohibite d by law. 9 See Tenn. Code Ann. § 39-15-302; 42 C.J.S. Incest § 2 (1991). The taboo against incest has been a consistent and almost universal tradition with recorded proscr iptio ns against incest existing as early as 1750 B.C. 10 The incest taboo has been characterized as one of the most important human c u ltural developments and is found in some form in all societies. Being primarily cultural in origin,the taboo is neither insti nctual nor biological and has little to do with actual blood ties. 11 See Benton v. State , 461 S.E.2d 202, 205 (Ga. 1995) (Sears, J., concurring). Anthropologists and sociologists cla i m the significance of the incest taboo is twofold : (1) the restriction forces family members to go outside their families to find sexual partners, re quiring people to purs ue relationships outside family boundaries that help form important economic and p olitic al alliances, and (2) to maintain the stability of the family hierarchy by prot

ecting youngfamily members from exploitation by older family members in positions of authority and by reducing competition and jealous fricti on among family members. Id.12 See Leviti cus 18:6-18, 20: 11-21. 9 Although the ban on incest was w idely followedin all societies, incest was not
a common law

crime in England; rather, punishment w as left solely to the eccl esiastical courts. See People v. Baker , 69 Cal. Rpt r. 595, 597 (1968); 42 C.J.S. Incest § 2; Audrey W. Collins, Annotation, Incest -- Half-Blood Relatives, 34 A.L.R. 5th 729(1995). The ecclesia stical cou rts follo we d t he interdiction of Leviti cal law 12 which prohibited marriagesbetween persons more clos ely related than fou rth cousins unless a dispensation was procured from theChurch of Rome; no distinctio n was made between persons related by affinity or c onsanguinity. Baker , 69 Cal. Rptr. at 597-98.In 1540, afterEngland’s separation from the Church of Rome, legislation w as enacted to correct “an unjust law of the bishop of Rome” relating to

the degrees in which marriages were permitted. Id. The revised statutes li mited prohibitions ag ainst marriage to relativ es closer than first cousins. Id. The ecclesiastical cour ts proclaimed the statute to be a return to “God’s law.” Id.

The English tradition prohibiting incest within ce rtain degrees was adop ted by the American colonists

. American jurisprudence, how ever, deviated from the ecclesiasticallaw

in two respects: the maj ority of American juris dictions extended the proscriptions

beyond that of

first cousins while others only imposed cri minal penalties where the relationship was consanguineous. Baker , 69 Cal. Rptr. at 597-98. Specific to our concern, Tennessee has tradi tionally recogniz

ed the proscription against incest
as a punish able offense. S ee, e.g. , Ch. 23, Section 18, Code of Tennessee (182 9). The pro scription continues as ev idenced by today’s chal lenged statutory prov ision, Tenn. Code Ann. § 39-15-302. Regardless of the manner of the pr oscription, the

crime of incest is go verned by sp ecific st atutes in every A merican jurisdiction. Id. at 596. There is nothing to sugg est a movement away from the historical treatment of incest; Tennessee, as other states, continues to co ndemn it as a grave p ublic wrong.10 To conclude that

there exists a “fu ndamental righ t” to engage in an incestuous relationship, this court would be called upon to contradict c enturies of legal doctrine and practice; which this court declines to do. See, e.g. , Glucksberg , -- U.S. at --. 117 S.C t. at 2269; Jackman v. Rosenbaum , 260 U.S. 22, 31, 43 S.Ct. 9, 9- 10 (1922) (“If a thing has been practiced for two hundr ed years by common consent,it wil l need a strong
case for the Fourte ent h Amendment to affect it.”). The e vidence is plain; the incest taboo is deeply rooted in Ang lo-Amer ican history and tradition s. Although one does have a general rig ht to privacy, this r ight does not, by itsel

f, warrant the sweeping conclusion that all intimate and personal dec isions are so protected. See San Antonio IndependentSchool Dist. v. Rodr iquez , 411 U.S . 1, 33-35, 93 S.Ct. 1278, 1296-98 (1973). Accordingly, we are led to conclude that the ass erted “right” to participate in adult consensual incest is not a fundamental liberty in terest pr otected by the Tennessee Con stitution. Accord People v. Hurd , 85 Cal. Rptr. 718, 726 (1970); Ben to n , 461 S.E.2d at 202; State v. Benson , 612 N.E.2d 337 (Ohio Ct. App. 1992); State v. Buck , 757 P.2d 861 (Or. Ct. App. 1988); Byrom v. State , 648 S.W.2d 440, 441 (Tex. App. 1983); State v. Kaiser , 663 P.2d 839, 843(Wash. App. 1983); 41 A M .J UR .2d Incest § 3 (1995).

In the absence ofa fundamental right, a rational basis test is used to ex amine the statute’s constitutional validity. A leg islative e nactment will be deemed valid if it bears a real and substantial rel ationship to thepublic’s health, safety, morals or general welfa re and it is neither unreasonable nor arbi trary. See Nashville , C & L. Ry. v. Walters , 294 U.S. 405, 55 S.Ct. 486 (1935); Erstin v. Moss , 221 Tenn. 657, 430 S.W.2d 345, 348 (Tenn. 1968), cert. dismissed , 393 U.S. 318, 89 S.Ct. 354 (1969)

.

There is little do ubt that the prohi bition ag ainst inc est is dire ctly refle ctive of the
mora l concerns of our society. Some argument has been made that this is an inadequate rationale to support the ban. The law, however, i s consta ntly b ased on notio ns of mo rality, and if all law s representing essential ly moral choices are to be11

invalidated, the courts would be very busy. Bowers v. Hardwick , 478 U.S. at 196, 106 S.Ct. at 2846. “[M]orality must and will re main a part of the criminal law .” Commonwealth v. Wasson , 842 S.W.2d 487 (Ky. 1992) (Lam bert, J., dissenting). The basis of criminal law exi sts because there are certai n standards of behavior or mor al principles

which society r

equires to be observed;and the breach of them is an offense not merely against the per son who is injured b ut against society as a whole. See D EVLIN , T HE E NFORCEMENT OF M ORALS 4, 6-18, 20, 20-23 (1959). Indeed, t he destruction of morality renders the pow er of government invalid,government being no
more than public order. See 16A A M .J UR .2d Constitutional Law § 367. Thus, criminal statutes prohibi

ting in cestuou s relat ionship s refl ec t the belief that incest is a w rong against the public largely bec ause of its potential to destabilize the family, traditionally regarded as society’s most important unit. J OYCE M C C ON NELL , I NCEST AS A C ONUNDRUM : J UDICIAL D ISCOURSE ON P RIVATE W RONG AND P UBLIC H ARM 1 Tex. J. Women & L. 143, 150 (Spring 1992).
Although the individual has a right to govern the course of his life, soc iety, also, has its interests. “To reconci le the true boundaries between the i ndividual and the community

is the highest problem that thoughtful consideration of human society has to solve.” J ELLINEK , T HE D ECLARATION OF THE R IGHTS OF M AN AND OF C ITIZENS 98 (1901). The balance to be achieved is the tolera tion of th e maximum individual freedom that is consistent with the i ntegrity of society . The law must protect the institutio ns and the
co mmu nity

of ideas, political and moral, without which people cannot live together. Indeed, our legislature has proclaimed that one of the objectiv es of our criminal code is to “[p]roscribe and prev ent conduct that unj ustifiably and inexcusably cause s or threatens harm to in div idual, property, or public interest for which protect ion through criminal law is appropriate.” See Tenn. Code Ann. § 39-11-101(1) (1997).13 Comp are Tenn. Code Ann. § 39-15- 302 (the offense of incest is classified under Chap ter 15, Offe nse s Ag ains t the F amily ) with Tenn. Code Ann. § 39-13- 502 ( repealed 1997) (the offen se of “ho mos exual ac ts” is class ified as a s exual of fense u nder C hapter 1 3, Offenses Against the Person). 12 The prohibition against in cest is aimed at the protec tion of chi ldren and of the family unit. 13 See Sentencing Commission Comment s, Tenn. Code Ann. §39-15-302;
s ee also Benton , 461 S.E.2d at 203. Society i s concerned with the int egrity of the family, see Douthitt v. State , 935 S.W.2d 241, 244 (Ark. 1996), because s ociety cannot function in an orderly manner when age distinctions, generations, sentiments, and roles in families are in conflict. State v. Kaiser , 663 P.2d 839, 843 (Wash. App. 1983); see also 41 Am.Jur. 2d Incest § 3. The state has a legit imate an d rationa lly based o bjective in prohibiting sexual

relations betweenthose related within the proscribed degrees o f kinship t o promote domestic peace and purity. See 42 C.J.S. Incest § 2. Accord Douthitt , 935 S.W.2d at 244; Baldwin , 112 Cal. Rptr. at 295; Hurd , 85 Cal. Rptr. at 726; Benton , 461 S.E.2d at 204; People v. York , 329 N.E.2d 845, 84 6-47 ( Ill. App. 1975); Benson , 612 N.E.2d at 340; Buck , 767 P.2d at 861; Byrom , 648 S.W.2d at 441; Kaiser , 6 63 P .2d at 843; In the Interest of Tiffany Nicole M. , 571 N.W.2d 872, 877 (Wis. App. 1997), perm. to appeal denied , (Wis. 1998); 41 A M . J UR . 2d Incest §3 . We conclude that the

state, i n the ex

ercise of i ts legi slative function, may legitimately proscribeagainst acts which threaten public order and decency, incl uding prohibitions against interfamilia sexual relations. Our pronouncements of the se principles are consistent

with and not contrary

to deeply rooted traditi ons. We, ther efore, hold that Tenn. Code Ann. § 39-15-302 does not vi olate the Constitution of the State of Tennessee.

The decision of the post-conviction court denying the appellant post-convi ction relief is affirmed.13 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_____________________________________ JAMES CURW OOD WIT T, JR., Judge

_____________________________________ JOHN EVERETT W ILLIAMS, Judge