Incest: What is the Law in Victoria, Australia?

by Doogue + George Criminal Defence Lawyers

Incest, by law, is defined as the act of sexual penetration of another person who is considered to be a member of your family. Family relationship is not limited to lineal descendants (blood relations). Step-children are also considered family and this is the same for adopted children. 

Incest is considered a very serious offence that almost always carries an actual gaol term if you are found guilty or plead guilty. It does not however mean that a person will receive the maximum punishment on being found guilty. The maximum is reserved for the worst example of the charge.

Under Incest law, consent may not be used as a criminal defence.

Incest law: The legislation

This offence of Incest is governed by section 50C of the Crimes Act 1958 (“the Act”) which reads as follows:

  1. A person (A) commits an offence if—
  2. A intentionally—
  3. sexually penetrates another person (B); or
  4. causes or allows B to sexually penetrate A; and
  5. B is A’s child or lineal descendant; and
  6. A knows that B is A’s child or lineal descendant.
  7. A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).
  8. The standard sentence for an offence against subsection (1) is 10 years if B is, at the time of the offence, under the age of 18 years.

Under Incest law, the maximum penalty that may be imposed is 25 years.

Baseline sentences are specified prison sentences that the Victorian Parliament intends to serve as the median sentence for a particular offence. Baseline sentences will be abolished in the very near future, with the government set to introduce a new sentencing scheme called ‘standard sentence’ scheme.

Jurisdictional limits

Incest is an indictable offence which means that the matter will be heard in the County Court. The offence carries a 25-year term of imprisonment as the highest possible sentence. As stated above, the baseline sentence (median) for a person found guilty of the offence of Incest where the victim is under the age of 18 years is 10 years imprisonment.

Incest law: The elements

  1. The accused must have taken part in act of sexual penetration with another person;
  2. The sexual penetration must have been intentional;
  3. The parties must have been in a prescribed family relationship;
  4. The accused must have known about that relationship.

Element 1: The accused must have taken part in act of sexual penetration with another person

For Incest, the prosecution must prove beyond reasonable doubt that an accused sexually penetrated the complainant.

Sexual penetration is defined in the act. Sexual penetration occurs when a person introduces any part of their body or an object into that person’s anus or vagina. A person can also sexually penetrate another if they introduce their penis into another person’s mouth. Inserting another body part (for example fingers) into another person’s mouth is not sexual penetration.

The accused’s object or body part does not need to have gone all the way into the other person’s vagina, anus, or mouth; even slight penetration is enough. However, mere touching of the relevant body part is not enough as there must have been actual penetration to some extent. Further, penetration only needs to have been slight or fleeting and does not need to have been committed for the purposes of sexual gratification. If the accused is male, Incest law does not require for the prosecution to prove whether the accused ejaculated.

Conduct that would otherwise fall within the definition of sexual penetration will not do so if carried out for proper “good faith”, medical, and/or hygienic purposes. In such cases it is for the prosecution to prove that the accused did not subjectively believe that there was a proper medical or hygienic purpose for their conduct.

Element 2: The sexual penetration must have been intentional

The second element of an Incest charge that the prosecution must prove beyond reasonable doubt is that the sexual penetration was intentional.

Section 35(2) of the act defines the person who sexually penetrates and the person who is penetrated as both deemed to be taking part in an act of sexual penetration. This means that both parties to an act of sexual penetration may be liable to prosecution for the offence of Incest. However, it has been held that it is not appropriate to class a complainant as an accomplice in Incest cases.

Element 3: The parties must have been in a prescribed family relationship

The relationship between the complainant and the accused must be one of the following:

  • The complainant was the accused’s child or was reputed to be the accused’s child.
  • The complainant was the child of the accused’s de facto spouse.
  • The complainant was the accused’s father, mother, other lineal ancestor, step-father or step-mother or was reputed to be the accused’s father, mother, other lineal ancestor, step-father or step-mother.
  • The complainant was the accused’s sister, half-sister, brother or half-brother or was reputed to be the accused’s sister, half-sister, brother or half-brother.

Under Incest law, adopted children are considered to be children of both adopted and birth parents.

Section 35 of the act defines ‘de-facto spouse’ as “a person who is living with a person of the opposite sex as if they were married although they are not”.

When determining whether an accused is in a de facto relationship, the jury can consider the following in relation to the de facto’s children:

  1. the role played, and responsibility assumed, by the accused with respect to the child(ren);
  2. the authority exercised by the accused over the child(ren); and/or
  3. the view which the child(ren) and the accused respectively had of the nature of the relationship between them.

Element 4: The accused must have known about that relationship

Except for offences under s44(2), the accused is presumed to know that they are related to the other person in the way alleged. This presumption can be rebutted by evidence to the contrary under the law for Incest.

For example, sexual penetration with a de facto spouse’s child, who was not known to the accused at the time, cannot be found guilty of Incest.

Incest law: Defences

Unlike some sexual offences, consent is not a defence to Incest.

Compulsion

An accused will not be guilty of incest if he or she was compelled to take part in the act of sexual penetration. The legislation defines compulsion as:

For the purposes of this section, a person compels another person (the victim) to take part in an act of sexual penetration if the person compels the victim (by force or otherwise) to engage in that act without the victim’s consent.

Other general defences such as wrongful identification, mental impairment, necessity, or duress may apply.

Sentencing outcomes

The Sentencing Advisory Council has released sentencing statistics for the sentencing of Incest matters in the higher courts between 2009 and 2013.

Over the five year period, 145 people were sentenced in the County Court. 94% of people sentenced received a period of imprisonment, 3% received a wholly suspended period of imprisonment, and 1% received a partially suspended sentence. During this period, 144 people sentenced were men, with 1 woman being sentenced for the offence.

The most common sentence of imprisonment was 5 years with a non-parole period of 3 years.

Please note that suspended sentences have been abolished. Suspended sentences are not available as a sentencing outcome for offences committed on or after 1 September 2013.

The sentence received depends on the offenders’ background, prior criminal history, and the circumstances surrounding the offending. Other factors may be considered as allowed under the laws for incest.

Also, the Victorian laws surrounding the charge of Incest have been recently updated. This article applies only to Incest offences committed before the update.

If you are facing a charge of Incest, contact a criminal defence lawyer immediately. This charge could lead to very serious penalties on a finding of guilt. Doogue + George Defence Lawyers has accredited criminal law specialists that specialise in sexual offences including Incest.

To view case studies related to this offence, visit this page where this article was originally published: https://www.criminal-lawyers.com.au/offences/incest.



Findlaw

We welcome your feedback

Hi there! We want to make this site as good as it can for you, the user. Please tell us what you would like to do differently and we will do our best to accommodate!

   
Protected by FormShield


 
 
 
We've updated our Privacy Statement, before you continue. please read our new Privacy Statement and familiarise yourself with the terms.
Feedback