Ark. Code Ann. § 5-26-202 (2026)

Research References

Am. Jur. 41 Am. Jur. 2d, Incest, § 1 et seq.

C.J.S. 42 C.J.S., Incest, § 1 et seq.

U. Ark. Little Rock L.J.

Legislative Survey, Criminal Law, 8 U. Ark. Little Rock L.J. 559.

Annual Survey of Caselaw, Criminal Procedure, 26 U. Ark. Little Rock L. Rev. 887.

Case Notes

Constitutionality.

The classifications under this section regarding stepparents and stepchildren is not unconstitutional. Douthitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996).

Consent.

The male may be convicted though he accomplished the act against the will of the female. Gaston v. State, 95 Ark. 233, 128 S.W. 1033 (1910) (decision under prior law).

Corroboration.

Evidence of a voluntary confession of the crime of incest made by the defendant to the officers who arrested him was admissible to corroborate the testimony of the accomplice so as to support a verdict of guilty. Knowles v. State, 113 Ark. 257, 168 S.W. 148 (1914) (decision under prior law).

Instruction was held proper which told the jury that if the prosecuting witness was more than sixteen years of age and consented to the sexual intercourse, that she was an accomplice and that her testimony would require corroboration. Teel v. State, 129 Ark. 180, 195 S.W. 32 (1917) (decision under prior law).

Testimony of daughter as to acts of intercourse did not have to be corroborated, since she could not be an accomplice. Hicks v. State, 219 Ark. 528, 243 S.W.2d 372 (1951) (decision under prior law).

That the legislature chose 16 years as the age of accountability for purposes of incest does not mean that it also intended that when an unwilling victim of incest is 16 then corroboration is required. Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986).

Where the 16-year-old stepdaughter ran away following the incident and upon her return refused to stay at home, the intercourse was not with her consent and, accordingly, her testimony did not require corroboration under § 16-89-111. Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986).

Defenses.

Even if the jury believed that defendant had no memory of incident of sexual intercourse with his daughter, that alone would not establish his innocence. Johnson v. State, 288 Ark. 101, 702 S.W.2d 2 (1986).

Double Jeopardy.

Defendant's prosecution for incest was not barred by dependent-neglect civil proceeding brought by the Department of Human Services inasmuch as the defendant simply was not threatened with multiple punishments and the double jeopardy clause was not offended. Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990).

Evidence.

Evidence held sufficient to support conviction. Hicks v. State, 219 Ark. 528, 243 S.W.2d 372 (1951) (decision under prior law).

Proffered proof of the prosecutrix's alleged or suspected sexual activity in other instances held not admissible under the rape-shield statute since proof of earlier sexual activity was not relevant to the charges of carnal abuse and incest. Fields v. State, 281 Ark. 43, 661 S.W.2d 359 (1983).

The trial judge did not abuse his discretion in admitting testimony of victim concerning counseling she had had after prior incidents of sexual intercourse with her father, as it tended to show that the prior incidents of incest had actually taken place. Johnson v. State, 288 Ark. 101, 702 S.W.2d 2 (1986).

Incest victim's testimony that defendant repeatedly engaged in sexual intercourse over a long period of time was, in and of itself, substantial evidence to support defendant's conviction; in addition, the jury could have viewed defendant's initial spontaneous statement to the officer as an admission of guilt. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003).

Evidence of victim's allegations of sexual abuse the victim purportedly made against the victim's natural father and grandfather held inadmissible without a proffer of the substance of the victim's purportedly inconsistent statements; the victim's prior allegations against others could not fairly be said to be relevant to impeaching the victim's credibility. Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003).

Evidence was sufficient to sustain defendant's incest conviction where the child victim testified that defendant, her stepfather, told her to put her mouth on his penis, and that he licked her “private parts.” Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004).

Gravamen of Offense.

The gravamen of the offense was the unlawful carnal knowledge because of consanguinity. Gaston v. State, 95 Ark. 233, 128 S.W. 1033 (1910) (decision under prior law).

Defendant's conviction of two counts of incest was affirmed even though he was not related to his two nieces by blood; the incest statute, § 5-26-202, prohibited sexual intercourse or deviate sexual activity regardless of whether defendant and his nieces were related by affinity or consanguinity. Heikkila v. State, 352 Ark. 87, 98 S.W.3d 805 (2003).

Indictment or Information.

Allegation of indictment of information held sufficient. State v. Ratcliffe, 61 Ark. 62, 31 S.W. 978 (1895); Williford v. State, 252 Ark. 397, 479 S.W.2d 244 (1972) (preceding decisions under prior law).

Instructions.

Instructions held sufficient. Hicks v. State, 219 Ark. 528, 243 S.W.2d 372 (1951) (decision under prior law).

Knowledge.

The only specific knowledge required for the crime of incest is that defendant knew that the prosecutrix was his daughter. Johnson v. State, 288 Ark. 101, 702 S.W.2d 2 (1986).

Separate Offenses.

Where there was ample testimony by which the jury could have found that the defendant father committed rape by deviate sexual activity on one occasion and, on other occasions, was guilty of incest by having sexual intercourse with his daughter, each act constituted a separate offense, and the defendant was properly convicted on separate counts of rape and incest. Massey v. State, 278 Ark. 625, 648 S.W.2d 52 (1983).

A forcible act of intercourse with one's child would support a conviction for rape or incest, but not both, and neither is a lesser included offense of the other, though several elements are the same. Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984).

Where defendant had committed incest with the same victim, but in different counties, defendant could be charged in both counties for offenses occurring in the same time period without violating double jeopardy principles. Fletcher v. State, 318 Ark. 298, 884 S.W.2d 623 (1994).

Incest is not an ongoing crime for which the defendant could only be prosecuted once; this section indicates that a defendant commits the crime of incest each time he engaged in sexual intercourse with his adopted daughter. Fletcher v. State, 53 Ark. App. 135, 920 S.W.2d 42 (1996).

Defendant's convictions for incest in one county did not prevent his prosecution for incest in another county where the second prosecution was not for the same offense committed in the first county and where the offenses in the second county were not based on the same conduct for which he was convicted in the first county. Fletcher v. State, 53 Ark. App. 135, 920 S.W.2d 42 (1996).

Subdivision (a)(2) of this section encompasses elements found neither in the rape statute nor in the carnal abuse statute; to be found guilty of incest, the state must prove that a defendant engaged in sexual intercourse or deviate sexual activity with a person he knows to be his stepchild, and this additional element precludes the invocation of double jeopardy concerns because the offenses are not the same. Standridge v. State, 357 Ark. 105, 161 S.W.3d 815 (2004).

Proof of Age.

Although there was no direct proof of defendant's age, circumstantial evidence was sufficient for the jury to conclude, without speculation or conjecture that defendant was over sixteen years old. Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995).

Cited: Bateman v. State, 2 Ark. App. 339, 621 S.W.2d 232 (1981); Hall v. State, 11 Ark. App. 53, 666 S.W.2d 408 (1984); Yates v. State, 301 Ark. 424, 785 S.W.2d 199 (1990); Mobbs v. State, 307 Ark. 505, 821 S.W.2d 769 (1991).