Marriage Between a Half-Uncle and Half-Niece Is Not Prohibited by Domestic Relations Law 5 (3)

The Court of Appeals, in answering a certified question from the Second Circuit, determined that a marriage between a half-uncle and half-niece is not incestuous under Domestic Relations Law 5 (3).  The husband is the half-brother of the petitioner-wife's mother.  Petitioner is a citizen of Vietnam and the husband is a naturalized American citizen.  An immigration judge had declared the marriage void and ordered petitioner removed from the country. Judge Smith, in one of two concurring opinions, wrote:

Section 5 of the Domestic Relations Law reads in full:

“A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either:

“1. An ancestor and a descendant;

“2. A brother and sister of either the whole or the half blood;

“3. An uncle and niece or an aunt or nephew.

“If a marriage prohibited by the foregoing provisions of this section be solemnized it shall be void, and the parties thereto shall each be fined not less than fifty nor more than one hundred dollars and may, in the discretion of the court in addition to said fine, be imprisoned for a term not exceeding six months. Any person who shall knowingly and wilfully solemnize such marriage, or procure or aid in the solemnization of the same, shall be deemed guilty of a misdemeanor and shall be fined or imprisoned in like manner.”

We must decide whether subdivision 3 of this statute should be read to include a half-uncle and half-niece (or half-aunt and half-nephew). There is something to be said on both sides of this question.  * * *

Domestic Relations Law § 5 is in part a criminal statute: it says that the participants in a prohibited marriage may be fined, and may be imprisoned for up to six months. Penal Law § 255.25, using language very similar to that of Domestic Relations Law § 5 (“ancestor, descendant, brother or sister of either the whole or half blood, uncle, aunt, nephew or niece”), makes entry into a prohibited marriage a class E felony. Where a criminal statute is ambiguous, courts will normally prefer the more lenient interpretation, and the courts of several other states have followed that rule in interpreting their criminal laws not to prohibit relationships between uncles and nieces, or aunts and nephews, of the half blood … .  * * *

We are not geneticists, and the record and the briefs in this case do not contain any scientific analysis; but neither party disputes the intuitively correct-seeming conclusion that the genetic risk in a half-uncle, half-niece relationship is half what it would be if the parties were related by the full blood. Indeed, both parties acknowledged at oral argument that the risk in a half-uncle/half-niece marriage is comparable to the risk in a marriage of first cousins. First cousins are allowed to marry in New York, and I conclude that it was not the Legislature's purpose to avert the similar, relatively small, genetic risk inherent in relationships like this one.  Nguyen v Holder, 2014 NY Slip Op 07290, CtApp 10-28-14