Incest statute could be changed

The state Supreme Judicial Court ruled yesterday that the Massachusetts law against incest does not apply to stepparents and said it was up to the Legislature to change the law.

In a 4-to-3 ruling in a case involving a 60-year-old Dorchester man accused of having sex with his teenage stepdaughter, the court said the incest statute prohibits intercourse only between people related by blood or through adoption.

"This is no doubt a difficult case," the majority said, given that the ruling "will result in the dismissal of six indictments alleging that the defendant committed incest by having sexual intercourse with his stepdaughter when she was fifteen and sixteen years old."

However repugnant it might seem, the majority nonetheless said words in the statute on incest "cannot be stretched beyond their fair meaning in order to relieve against what may appear to be a hard case."

Suffolk District Attorney Daniel F. Conley said he was disappointed by the ruling. But he noted that the defendant, Dawud Rahim, who has been held since 2001 at the Nashua Street Jail, still faces numerous charges, including rape, exhibiting a nude child on videotape, and illegal wiretapping.

Conley said he intends to file legislation shortly to broaden the incest statute to apply to stepparents.

Rahim's lawyer, Robert J. Zanello, was pleased with the decision, saying that the court correctly interpreted the incest statute.

"In this case, the SJC dealt with what the language of the statute was, and I believe the criminal statutes should be strictly construed," he said.

Twenty other states only punish incest by blood relatives, the court noted.

Wendy Murphy, a professor at the New England School of Law, said she appreciated the court's ruling "in a technical sense," but she questioned why the justices didn't recognize the role of stepparents in modern families -- when they have recognized the changing nature of families in other cases.

Ira Mark Ellman, a professor at Arizona State University's College of Law and a specialist on family law, sounded a similar theme. Although the court may have correctly recognized a loophole in the original statute, he said that "exploitation of a minor is clearly a concern that triggers incest regulations."

The state's highest court issued its ruling after Superior Court Judge Joseph M. Walker III responded to a request by Rahim's lawyer for the incest indictments to be dismissed. Walker posed a question of law to the state Appeals Court, and the SJC granted an application for direct appellate review.

"We leave it to the Legislature to expand the incest prohibition if it so chooses," the court said in its majority opinion, written by Justice Robert Cordy.

In a dissenting opinion, Justice John Greaney said the majority had reached a "startling result" based on "faulty analysis."

"The court leaves us with a situation where this defendant will avoid prosecution for incest, and [unless the statute is changed] a stepfather can have consensual sexual intercourse with his sixteen-year-old stepdaughter without fear of criminal sanction. [But, he will not be able to marry her]," Greaney wrote in the dissent. "As a result of the court's decision, we are left with an unfortunate state of affairs that frustrates legislative intent and undermines the value and stability of the family as the core unit of society."

Joining Greaney in his dissent were Chief Justice Margaret H. Marshall and Justice Francis X. Spina. Besides Cordy, the other justices in the majority were Roderick L. Ireland, Judith A. Cowin, and Martha B. Sosman.

Material from the Associated Press was used in this report.