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Scottish Bible Society Cites Incest Case as Evidence of “The Bible in Scots Law”

Lallands Peat Worrier has a scan of the full text of The Bible in Scots Law: A Guide for Legal Practitioners. This is a short pamphlet which the Scottish Bible Society has recently sent out to Scottish courts, along with copies of the Bible itself (even though the Bible is already available in courts anyway, for swearing-in purposes). One page of the pamphlet lists a number of topics with associated Bible verses; Worrier helpfully provides the relevant passages, and observes in marvellous style that

Noteably absent is a favourite passage, from Matthew 7:1: “Judge not, lest ye be judged”... Most of the passages are, predictably enough, from the Pentateuch. To my eye, the selections are sometimes elegant, sometimes obvious but mostly mildly absurd, tendentiously applicable and rather a-historically facile. I particularly appreciated the anachronistic pegging of passages alongside such eccentric categories as strict liability and health and safety law, “racial equality” and “disability rights”. Hardly a boon friend and rod for the jobbing sheriff or procurator fiscal, I fancy. The inclusion of adultery prompted a frisson.

The pamphlet also makes specific mention of a 2008 judgement:

The case of HMN v BL 2008 HCJAC 10 Dec 2008 illustrates how relevant the Bible still is, even in areas of substantive law.

Worrier has a link to the relevant document, which is an Appeal Court opinion concerning the case of a man having sex with his step-daughter some years before, while she was between the ages of 12 and 17; the judges determined that this counted as incest according to the 1567 Incest Act’s interpretation of Leviticus 18.  The Bible only came into the discussion because the offenses had occured prior to the commencement of the Incest and Related Offences (Scotland) Act 1986, and the accused had sought to turn the antiquity of the previous law to his advantage by suggesting it had been unclear. The opinion is a difficult read for those of us unversed in legalese; a Scottish law journal has a summary:

…When the 1567 Act was passed, the only version of the Bible then in use was the Geneva Bible. Accordingly, that was where one had to look for the relevant chapter. But if, as in the present case, one was prosecuted in Kilmarnock High Court in 2007/2008 for offences allegedly committed between 1976 and 1982, how would one find out whether one’s alleged incest was criminal under the 1567 Act? The court noted that there is only one copy of the Geneva Bible in the National Library of Scotland in Edinburgh.

The court rejected the respondent’s arguments that the law was not reasonably accessible and was formulated without sufficient precision. A person such as the respondent would seek legal advice on whether intercourse between stepfather and stepdaughter constituted incest; such advice would be based on the standard criminal law texts, which were unequivocal on the point. The true nature of the offence was foreseeable; and so the case was remitted to the trial judge to proceed as accords. No need to pore over the Geneva Bible; no need for further research in Scotland’s historical archives.

The law today states that:

Any step-parent or former step-parent who has sexual intercourse with his or her step-child or former step-child shall be guilty of an offence if that step-child is either under the age of 21 years or has at any time before attaining the age of 18 years lived in the same household and been treated as a child of his or her family…

Obviously, the concern here is that although there is no blood connection, issues of improper influence and informed consent come into play. But this would be alien to the mind of the author of Leviticus; he, rather, is concerned exclusively with how certain sexual unions “violate” God’s kinship categories. This includes adulterous unions between in-laws (e.g. a brother’s wife), which today would be regarded as a private matter, and homosexuality, which has not been a criminal offence in Scotland since 1980.

In other words, the idea that HMN v BL 2008 HCJAC “illustrates how relevant the Bible still is” is clutching at straws: the case dealt with exceptionally old matters, and neither the spirit nor a good chunk of the letter of Leviticus 18 applies to the law today.

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