Incest, Bigamy, Obscenity, and Repealed Sex Laws in Minnesota

Laws That No Longer Exist (Repealed in 2024)

This is the most important update for anyone researching Minnesota's older sex laws. Effective August 1, 2024, the Minnesota Legislature repealed three long-dormant offenses:

• Sodomy (formerly Minn. Stat. § 609.293);
• Fornication (formerly § 609.34); and
• Adultery (formerly § 609.36).

These crimes — which on their face had criminalized various consensual sexual acts between adults — are no longer on the books in Minnesota. (The sodomy statute had also been held unconstitutional as applied to private, consensual acts between adults years earlier, following the U.S. Supreme Court's decision in Lawrence v. Texas.)

What this means for you: Consensual sexual conduct between adults, and adultery, are not crimes in Minnesota. If you've seen older references treating these as offenses, that information is out of date.

Incest (Minn. Stat. § 609.365)

Incest is a felony, defined as sexual intercourse between persons more closely related than first cousins. Some important distinctions the courts have drawn:

• It can be a separate offense from, or an included offense of, intrafamilial sexual abuse.
• Intercourse between a stepfather and stepdaughter is not incest (no blood relationship within the prohibited degree).
• First cousins are not within the prohibited degree.
• Adopted siblings whose blood relationship is not closer than first cousin cannot be convicted of incest.

Incest is a serious felony, and conduct in this area is frequently also chargeable under the criminal-sexual-conduct statutes, which can carry even more severe consequences.

Bigamy (Minn. Stat. § 609.355)

Bigamy is a felony and can be committed in three ways:

• marrying in Minnesota while knowingly already in an undissolved marriage;
• marrying in Minnesota while knowing the other person is already in an undissolved marriage; or
• marrying outside Minnesota while knowing either spouse is in an undissolved marriage, then cohabiting in Minnesota.

A few key points: knowledge of the marital status is required in every form; "cohabitation" means openly living together as a married couple (not occasional association); and a common-law marriage can't be the basis for a bigamy charge.

Obscenity

Obscene material is not protected by the First Amendment, but the line between protected expression and unprotected obscenity is constitutionally significant. Minnesota follows the U.S. Supreme Court's three-part Miller test, under which material is obscene only if all three are met:

1. the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest;
2. it depicts or describes, in a patently offensive way, sexual conduct specifically defined by law; and
3. the work, taken as a whole, lacks serious artistic, political, or scientific value.

Important free-speech limits flow from this: merely offensive or profane language, without the required prurient appeal, is generally protected speech, and statutes punishing the mere use of obscene words are unconstitutional. Modern obscenity prosecutions are relatively rare and often focus on distribution, on protecting minors, or on online dissemination. (Material involving minors is governed by separate, far more serious child-protection laws.)

Bestiality (Minn. Stat. § 609.294)

Bestiality is a misdemeanor, elevated to a gross misdemeanor if done in the presence of another. It remains on the books in Minnesota.

Key Terms

• Repealed: Removed from the law — sodomy, fornication, and adultery as of August 1, 2024.
• Incest: A felony involving intercourse between people more closely related than first cousins.
• Bigamy: A felony involving a marriage entered while a prior marriage is undissolved, with knowledge.
• Miller test: The three-part constitutional test for obscenity.