JIMMY CLEMONT HENDRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE; TRINA IRENE HENDRY, APPELLANT, V. STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed denial of motions to dismiss incest charges under section 826.04, holding that biological consanguinity cannot be erased by adoption despite statutory language terminating legal relationships between adopted persons and their relatives.
Adoption does not eliminate biological consanguinity for purposes of incest statutes, and therefore an adopted child remains subject to incest prosecution for sexual relations with a biological parent.
[1] Biological consanguinity for purposes of incest statutes cannot be terminated by adoption, notwithstanding statutory language purporting to sever all legal relationships…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It of course is impossible to nullify by legislative declaration the fact that the biological parents continue to be blood relatives of the child; the link of consanguinity cannot be erased by enactment.”
Court citing Indiana Supreme Court precedent to explain why adoption cannot eliminate biological consanguinity for incest statute purposes.
Jimmy Clemont Hendry and Trina Irene Hendry were charged with incest. Trina had been adopted by a third party prior to her marriage to Jimmy Clemont H…
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PER CURIAM.
We affirm the trial court’s denials of defendants’ motions to dismiss the informa-tions in which defendants were charged with incest under section 826.04, Florida Statutes (1987). That section renders felonious marriage or sexual intercourse with a person to whom a defendant “is related by lineal consanguinity.” The informations alleged that defendants were father and daughter and that they were either married to each other or had had sexual intercourse with each other. It has been stipulated that defendant Trina Hendry had been adopted by a third party prior to her marriage to defendant Jimmy Clemont Hendry.
We recognize that the adoption statute includes in section 63.172(l)(b) the provision that adoption “terminates all legal relationships between the adopted person and his relatives, including his natural parents ... so that the adopted person thereafter is a stranger to his former relatives for all pur-poses_” However, as the Indiana Supreme Court has held, an adoption statute cannot erase lineal consanguinity. “It of course is impossible to nullify by legislative declaration the fact that the biological parents continue to be blood relatives of the child; the link of consanguinity cannot be erased by enactment.” Bohall v. State, 546 N.E. 2d 1214, 1215 (Ind.1989). Furthermore, we agree with the trial court that by the passage of section 63.172 the legislature did not intend the absurd result of altering the above referenced biological fact. See State v. Webb, 398 So. 2d 820, 824 (Fla.1981).
Affirmed.
SCHEB, A.C.J., CAMPBELL and LEHAN, JJ., concur.
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Citator
Cited By
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Beam v. State, 1 So. 3d 331 (Fla. 5th DCA 2009)…iage and sexual intercourse between persons related within the specified degrees. Society’s interests in prohibiting incest include the prevention of pregnancies which may involve a high risk of abnormal or defective offspring.” In Hendry v. State, 571 So. 2d 94 (Fla. 2d DCA 1990), the only Florida case addressing incest and adoption, the court held that the adoption statute, section 63.172, cannot erase the biological fact of lineal consanguinity and, therefore, a man can be convicted of incest for having…
Authorities Cited
- State v. Webb, 398 So. 2d 820 (Fla. 1981)