Smith v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
FEBRUARY SESSION, 1999 FILED
March 25, 1999

Cecil W. Crowson
AMI E. SMITH, )
Appellate Court Clerk
) No. 01C01-9811-CR-00438
Appellant )
) WILSON COUNTY
vs. )
) Hon. J. O. Bond, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee )

For the Appellant: For the Appellee:

Henry Clay Barry Paul G. Summers
Attorney at Law Attorney General and Reporter
106 S. College
Lebanon, TN 37087 Kim R. Helper
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493

Tom P. Thompson, Jr.
District Attorney General

Robert Hibbett
Asst. District Attorney General
119 College Street
Lebanon, TN 37087

OPINION FILED:

AFFIRMED

David G. Hayes
Judge
 OPINION

The appellant, Ami E. Smith, appeals the Wilson County Criminal Court’s

dismissal of her petition for post-conviction relief. The appellant collaterally attacks her

conviction for incest upon the ground that Tenn. Code Ann. § 39-15-302 violates her

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 record, we affirm the trial court’s denial of post-conviction

relief.

Background

On March 13, 1997, the appellant entered a guilty plea to one count of incest 1

and was sentenced to three years supervised probation. As a condition of her

probation, the appellant was required to wear an electronically monitored ankle

bracelet. She destroyed the bracelet, and, as a result of this conduct, was charged with

the crime of vandalism. The appellant pled guilty to the charge of vandalism and was

sentenced to two years in the Community Corrections program. This sentence was

ordered to run consecutive to her three year sentence for incest, which was revoked

and reimposed as a Community Corrections sentence. Within three months of being

placed in the Community Corrections program, the appellant violated at least seven of

the terms and conditions of her behavioral contract. Based on these new violations,

the trial court revoked her Community Correction sentences and ordered that the

appellant serve her effective five year sentence in the Department of Correction.

1
The indictment charged and it is not disputed that the appellant was involved 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 from the sparse record before us that the incestuous relationship began
while the appellant was still a minor and continued into her majority. Her uncle was in his mid-
thirties when the relationship began. No children were born as a result of this relationship. The
appellant’s brief indicates that she suffers from various psychological disorders and was eighteen
years old when charged with this offense.

2
 No appeal was taken from either conviction or sentence. As a result, the

appellant is currently confined in the Tennessee Women’s Prison. On April 14, 1998,

the appellant filed the present petition for post-conviction relief. As the sole ground for

relief, the appellant avers that “the crime of incest, between consenting adults, in a

private and non-commercial setting is unconstitutional under the privacy provisions of

the State Constitution and [the court must] set aside her conviction for the same.”2 On

October 15, 1998, the trial court denied the appellant relief. In dismissing the petition,

the trial court found this state’s incest statute constitutionally valid.

Analysis

Again, the appellant’s sole assignment of error is whether Tenn. Code Ann. § 39-

15-302 is unconstitutional under the protections provided by the Constitution of the

State of Tennessee.3 Specifically, the appellant 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 sexual

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 unconstitutional under our state constitution, her conviction and sentence 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
cognizable in a post-conviction proceeding. Moreover, the State asserts that the 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 issue is entitled to a merits review because the State failed to plead waiver as an
affirm ative defe nse.

3
activities in the privacy of that adult’s home is a matter of intimate personal concern

which is at the heart of Tennessee’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. CONST . amend. XIV; TENN. CONST . Art.

I., § 8; TENN. CONST . Art. XI, § 8. See generally State v. Tester, 879 S.W.2d 823, 827

(Tenn. 1994). When a challenge is made alleging infringement of a fundamental right,

“strict scrutiny” of the legislative classification is only required when the classification

interferes with the exercise of a “fundamental right” or operates to the peculiar

disadvantage of a suspect class. See Evans v. Steelman, 970 S.W.2d 431, 435

(Tenn. 1998); Tester, 879 S.W.2d at 827 (citations omitted). However, if no

fundamental right or suspect class is affected, the court must determine whether there

is some rational basis to justify a classification set out in a statute. Steelman, 970

S.W.2d at 435 (citation omitted). There is no dispute that the challenged statutory

provision does not involve a suspect class, thus, our initial determination remains

whether the appellant’s right to privacy encompasses a guaranteed protected

“fundamental right”5 to engage in incestuous sexual activity.

Neither the United States Constitution nor the Tennessee Constitution

specifically refers to a “fundamental right to privacy.”6 Nonetheless, it is well

recognized that 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.

4
The appellant expressly reserves determination of the issue solely on Tennessee
constitutional law. For this reason, this court deems it unnecessary to separately analyze her
claim under the federal constitution.

5
"Fundamental rights” have been defined by the United States Supreme Court as “those
fundamental rights that are implicit in the concepts of ordered liberty such that neither liberty nor
justice would exist if they were sacrificed.” See Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149
(1937), overruled on other 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 O N T . C ONST ., Art. III § 10 (same); S. C. C ONST ., Art. I. § 10 (same);
W ASH . C ONST ., Art. I, § 7 (same).

4
1259 (1993). Indeed, the right of privacy is unanimously understood to exist in the

penumbra of various constitutional provisions. Kewanee Oil Co. v. Bicron Corp., 416

U.S. 470, 94 S.Ct. 1879 (1974) (recognizing privacy is a fundamental right guaranteed

by the federal constitution); Davis, 842 S.W.2d at 600 (recognizing right to privacy

guaranteed by the Tennessee Constitution). To illustrate, the right of privacy as

guaranteed by the Tennessee Constitution may be found in “Section 3 guaranteeing

freedom of worship;” “Section 7 prohibiting unreasonable searches and seizures;”

Section 19 guaranteeing freedom of speech and press;” and “Section 27 regulating the

quartering of soldiers.” Davis, 842 S.W.2d at 600.

Without doubt, our society is interested in protecting the privacy of the individual

citizen from violation by way of intrusion into his home, publicizing his purely personal

affairs, compelling divulgence of his views and beliefs which would expose the citizen

to extra legal sanctions and from inroads into the individual’s repose and relaxation.

CHESTER JAMES ANTIEAU , MODERN CONSTITUTION AL LAW (2d ed. 1997). Accordingly, the

right to privacy promises a realm of personal liberty, except in very limited

circumstances, which the government may not enter, and the result is a right of

personal privacy, or a guarantee of certain areas or zones of privacy. 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 AM . JUR . 2d Constitutional

Law § 603 (1998). This right, also referred 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, 88 S.Ct. 507 (1967); see also

Davis, 842 S.W.2d at 599, has been interpreted by the Supreme Court to provide

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,

5
87 S.Ct. 1817 (1967) (right to marry); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct.

1678 (1965) (right to marital 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 relationships); Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

535, 62 S.Ct. 1110 (1942) (right to procreate); Meyer v. Nebraska, 262 U.S. 390, 43

S.Ct. 625 (1923) (right to direct education of children). It is clear from the precedent

established by the Supreme Court that the constitutional right of privacy places limits

on a state’s right to interfere with a person’s most basic decisions regarding family and

parenthood. See Casey, 505 U.S. at 849, 112 S.Ct. at 2806. Compare Bowers v.

Hardwick, 478 U.S. 186, 106 S.Ct. 2841 (1986) (no right to engage in homosexual

sodomy); Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878) (no right to

practice polygamy).

Notwithstanding the individual rights 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 952, 112 S.Ct. at 2859 (Rehnquist, C.J., dissenting).

Indeed, the courts “ha[ve] always been reluctant to expand the concept of substantive

due process because guideposts for responsible decision making in this unchartered

area are scarce and open-ended.” Washington v. Glucksberg, -- U.S.--, 117 S.Ct.

2258, 2267 (1997). In determining which rights are fundamental, the courts are not

unrestrained to decide cases in light of their personal and private notions. Griswold,

381 U.S. at 493, 855 S.Ct. at 1686-87. Rather, if the right cannot be logically deduced

from the text of the Constitution, “the court must look to the traditions and collective

conscience of our people to determine whether a principle is so rooted as to be ranked

as fundamental.”7 Id. at 493, 85 S.Ct. at 1686-87; see also Glucksberg, -- U.S. at --,

7
We acknowledge precedent recognizing a more extensive right of privacy under both the
Tennessee Constitution and this State’s constitutional jurisprudence than the corresponding right
to privacy pro vided by the Federa l Constitution . See Campbell v. Sundquist, 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 .
Notwithstanding the broader protection afforded by the Tennessee Constitution, under which
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
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 Health, 497 U.S. 502, 110 S.Ct. 2972, 2984

(1990) (Scalia, J., concurring). With these historical notions at hand, the court must

then ask “whether a right invoked is of such a character that it cannot be denied without

violating these fundamental principles of liberty and justice which are at the base of all

of our civil and political institutions.” Griswold, 381 U.S. at 493, 85 S.Ct. at 1686-87.

In so doing, the court must be mindful to “exercise the utmost care . . . lest the liberty

protected . . . be subtly transformed into the policy preference of the . . . court.”

Glucksberg, -- U.S. at ---, 117 S.Ct. at 2268 (citing Moore v. East Cleveland, 431 U.S.

494, 502, 97 S.Ct. 1932, 1937 (1977)).

In tracing the tradition and customs encompassing an asserted right or privilege,

the reviewing court must narrowly prescribe “ a careful description” of the asserted

fundamental right in order to prevent the promulgation of a constitutional 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 absolutely required avoids

throwing settled law into confusion; doing so . . . preserves a chaos that is evident to

anyone who can read and count.”8 Webster v. Reproductive Health 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 196-96, 106 S.Ct. at 2846 (Court recognized, in holding no

fundamental right for homosexuals to engage in sodomy, problems associated with

expanding scope of asserted right to include voluntary sexual conduct between

consenting adults including exposure to incest, polygamy, and other prohibited crimes

committed in the home). Thus, we decline the appellant’s invitation to broadly construe

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 situation, may also share som e of its contours”).

8
The holding In Campbell v. Sundquist, 926 S.W .2d a t 250 , igno res th e Su prem e Co urt’s
warning against overextending the scope of an asserted “fundamental right.” In declaring 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 in the privacy of that adult’s home.” Cam pbe ll,
926 S.W.2d at 262. Clearly, the ultimate holding in Cam pbe ll sweeps too broadly as forewarned
by Justice Scalia.

7
incest as part of an alleged right to engage in private consensual non-commercial

sexual activity. Rather, we perform our review within the narrower boundaries of an

asserted right to engage in incestuous relationships.

Incest is the sexual intercourse or marriage between persons related to each

other in any of the degrees of consanguinity or affinity that is prohibited 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 proscriptions against

incest existing as early as 1750 B.C.10 The incest taboo has been characterized as one

of the most important human cultural developments and is found in some form in all

societies. Being primarily cultural in origin, the taboo is neither instinctual 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 claim the

significance of the incest taboo is twofold: (1) the restriction forces family members to

go outside their families to find sexual partners, requiring people to pursue relationships

outside family boundaries that help form important economic and political alliances, and

(2) to maintain the stability of the family hierarchy by protecting young family members

from exploitation by older family members in positions of authority and by reducing

competition and jealous friction among family members. Id.

9
Tenn. Code Ann. § 39-15-302 provides:
(a) A person commits incest who engages in sexual penetration as defined in §
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 parent, child, grandparent, grandchild,
uncle, aunt, nephew, niece, stepparent, stepchild, adoptive
parent, adoptive child; or

(2) The person’s brother or sister of the whole or half-blood or by
adoption.

(b) In ces t is a C lass C felo ny.

10
Discovered in 1901, the Code of Hamm urabi, a Babylonian king, punished 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 O B B I N S, L AW : A T REASURY OF A R T A N D L I T E R AT U R E 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 incestuous relations long before people knew of its genetic effects.

8
 Although the ban on incest was widely followed in all societies, incest was not

a common law crime in England; rather, punishment was left solely to the ecclesiastical

courts. See People v. Baker, 69 Cal. Rptr. 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 ecclesiastical courts followed the interdiction of Levitical law12 which prohibited

marriages between persons more closely related than fourth cousins unless a

dispensation was procured from the Church of Rome; no distinction was made between

persons related by affinity or consanguinity. Baker, 69 Cal. Rptr. at 597-98. In 1540,

after England’s separation from the Church of Rome, legislation was enacted to correct

“an unjust law of the bishop of Rome” relating to the degrees in which marriages were

permitted. Id. The revised statutes limited prohibitions against marriage to relatives

closer than first cousins. Id. The ecclesiastical courts proclaimed the statute to be a

return to “God’s law.” Id.

The English tradition prohibiting incest within certain degrees was adopted by

the American colonists. American jurisprudence, however, deviated from the

ecclesiastical law in two respects: the majority of American jurisdictions extended the

proscriptions beyond that of first cousins while others only imposed criminal penalties

where the relationship was consanguineous. Baker, 69 Cal. Rptr. at 597-98. Specific

to our concern, Tennessee has traditionally recognized the proscription against incest

as a punishable offense. See, e.g., Ch. 23, Section 18, Code of Tennessee (1829).

The proscription continues as evidenced by today’s challenged statutory provision,

Tenn. Code Ann. § 39-15-302. Regardless of the manner of the proscription, the crime

of incest is governed by specific statutes in every American jurisdiction. Id. at 596.

There is nothing to suggest a movement away from the historical treatment of incest;

Tennessee, as other states, continues to condemn it as a grave public wrong.

12
See Leviticus 18:6-18, 20:11-21.

9
 To conclude that there exists a “fundamental right” to engage in an incestuous

relationship, this court would be called upon to contradict centuries of legal doctrine and

practice; which this court declines to do. See, e.g., Glucksberg, -- U.S. at --. 117 S.Ct.

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 hundred years by common consent, it will need a strong

case for the Fourteenth Amendment to affect it.”). The evidence is plain; the incest

taboo is deeply rooted in Anglo-American history and traditions. Although one does

have a general right to privacy, this right does not, by itself, warrant the sweeping

conclusion that all intimate and personal decisions are so protected. See San Antonio

Independent School Dist. v. Rodriquez, 411 U.S. 1, 33-35, 93 S.Ct. 1278, 1296-98

(1973). Accordingly, we are led to conclude that the asserted “right” to participate in

adult consensual incest is not a fundamental liberty interest protected by the

Tennessee Constitution. Accord People v. Hurd, 85 Cal. Rptr. 718, 726 (1970);

Benton, 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 AM .JUR .2d

Incest § 3 (1995).

In the absence of a fundamental right, a rational basis test is used to examine

the statute’s constitutional validity. A legislative enactment will be deemed valid if it

bears a real and substantial relationship to the public’s health, safety, morals or general

welfare and it is neither unreasonable nor arbitrary. 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 doubt that the prohibition against incest is directly reflective of the

moral concerns of our society. Some argument has been made that this is an

inadequate rationale to support the ban. The law, however, is constantly based on

notions of morality, and if all laws representing essentially moral choices are to be

10
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 remain a part of the criminal law.”

Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992) (Lambert, J., dissenting). The

basis of criminal law exists because there are certain standards of behavior or moral

principles which society requires to be observed; and the breach of them is an offense

not merely against the person who is injured but against society as a whole. See

DEVLIN , THE ENFORCEMENT OF MORALS 4, 6-18, 20, 20-23 (1959). Indeed, the

destruction of morality renders the power of government invalid, government being no

more than public order. See 16A AM .JUR .2d Constitutional Law § 367. Thus, criminal

statutes prohibiting incestuous relationships reflect the belief that incest is a wrong

against the public largely because of its potential to destabilize the family, traditionally

regarded as society’s most important unit. JOYCE MCCONNELL , INCEST AS A CONUNDRUM :

JUDICIAL DISCOURSE ON PRIVATE W RONG AND PUBLIC HARM 1 Tex. J. Women & L. 143,

150 (Spring 1992).

Although the individual has a right to govern the course of his life, society, also,

has its interests. “To reconcile the true boundaries between the individual and the

community is the highest problem that thoughtful consideration of human society has

to solve.” JELLINEK, THE DECLARATION OF THE RIGHTS OF MAN AND OF CITIZENS 98 (1901).

The balance to be achieved is the toleration of the maximum individual freedom that

is consistent with the integrity of society. The law must protect the institutions and the

community of ideas, political and moral, without which people cannot live together.

Indeed, our legislature has proclaimed that one of the objectives of our criminal code

is to “[p]roscribe and prevent conduct that unjustifiably and inexcusably causes or

threatens harm to individual, property, or public interest for which protection through

criminal law is appropriate.” See Tenn. Code Ann. § 39-11-101(1) (1997).

11
 The prohibition against incest is aimed at the protection of children and of the

family unit.13 See Sentencing Commission Comments, Tenn. Code Ann. § 39-15-302;

see also Benton, 461 S.E.2d at 203. Society is concerned with the integrity of the

family, see Douthitt v. State, 935 S.W.2d 241, 244 (Ark. 1996), because society 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 legitimate and rationally based objective

in prohibiting sexual relations between those related within the proscribed degrees of

kinship to 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, 846-47 (Ill. App.

1975); Benson, 612 N.E.2d at 340; Buck, 767 P.2d at 861; Byrom, 648 S.W.2d at 441;

Kaiser, 663 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 AM . JUR . 2d Incest §3. We

conclude that the state, in the exercise of its legislative function, may legitimately

proscribe against acts which threaten public order and decency, including prohibitions

against interfamilia sexual relations. Our pronouncements of these principles are

consistent with and not contrary to deeply rooted traditions. We, therefore, hold that

Tenn. Code Ann. § 39-15-302 does not violate the Constitution of the State of

Tennessee.

The decision of the post-conviction court denying the appellant post-conviction

relief is affirmed.

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
 ____________________________________
DAVID G. HAYES, Judge

CONCUR:

_____________________________________
JAMES CURWOOD WITT, JR., Judge

_____________________________________
JOHN EVERETT W ILLIAMS, Judge

13