If someone thinks that they are the biological father at the time of a sexual assault but they in fact are not, can they still be charged with incest?

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If someone thinks that they are the biological father at the time of a sexual assault but they in fact are not, can they still be charged with incest?

As a child I was molested by my brother and my mother never protected me. She told me I couldn’t tell and that this was normal. I am now 33 and married with a family of my own. My brother that did this to me has been in and out of jail (not for this) charges were never brought against him on my situation. Now he has a daughter and i found out from my niece that he was doing this to her. I immediately went to the police and a forensic interview was performed. He was indicted on aggravated incest and the children were placed in my care (I am now trying to adopt). My mother of course has once again taken his side and is lying to the cops and judges and state etc. I recently found out that a DNA test shows that he is not the biological father to her. Is it possible to keep the charge of aggravated incest because he thought this was his child at the time of the crime? If it was to be dropped what possible charges could we look at that will also carry a lengthy sentence. I also found out that in LA Ihave 30 years after turning 18 to pursue my charges I only hesitate because his defense is that I coached my niece into lying which i believe will prove differently with the forensic interview. There was no penetration so we only have the interview to go on from the minor which I’m not allowed to hear but have heard from the DA that we have a strong case. I am not sure if it is a good idea to go ahead with my charges because i certainly don’t want him out and able to ever harm anyone else but I fear that they will think i am just trying to target him or something silly.

Asked on May 12, 2011 under Criminal Law, Louisiana

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If there is no biological relationship, then there is no incest. Emotional relationships or family relationships don't count. Otherwise, Woody Allen and Soon-Yi (spelling?) would be committing incest.

If the girl was underage at the time of the sex acts, then your brother committed one or another tyype of sexual assault--the exact type will depend on the situation (e.g. her age, if any force or threat or intoxicant was used, etc.). In terms of whether a prosecution will go forward, ultimately that is the DA's choice, not yours--you can sue in civil court for damages, assuming that the statute of limitiations on the type of suit you'll bring has not expired, but it's up to the authorities whether or not to bring a criminal prosecution.


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