Incest


It is an offence in the ACT to engage in incest. Incest is distinguished from other charges relating to sexual intercourse due to the relationship between the accused and the complainant. The maximum penalty for these offences range from 10 years to 20 years imprisonment, depending on the age of the complainant.

The Offence Of Incest

The offence of incest is separated into three categories depending on the age of the complainant.

If the sexual intercourse is engaged in with a complainant who is under the age of 10 years, the relevant provision is section 62(1) of the Crimes Act 1900 which states that the accused commits an offence if they engage in sexual intercourse with a person under the age of 10 years who they know to be their lineal descendant, sister, half-sister, brother, half-brother or stepchild. This offence carries a maximum penalty of imprisonment for 20 years.

If the sexual intercourse is engaged in with a complainant who is under the age of 16 years, the relevant provision is section 62(2) of the Crimes Act 1900 which states that the accused commits an offence if they engage in sexual intercourse with a person under the age of 16 years who they know to be their lineal descendant, sister, half-sister, brother, half-brother or stepchild. This offence carries a maximum penalty of imprisonment for 15 years.

If the sexual intercourse is engaged in with a complainant who is at least 16 years of age, the relevant provision is section 62(3) of the Crimes Act 1900 which states that the accused commits an offence if they engage in sexual intercourse with a person of or above the age of 16 years who they know to be their lineal ancestor, lineal descendant, sister, half-sister, brother or half-brother. This offence carries a maximum penalty of imprisonment for 10 years. It is important to note that, in addition to the relationships governed by section 62(1) and 62(2) of the Crimes Act 1900, this offence also covers ‘lineal ancestors’, who the legislature consider may be victims of this offence. Conversely, stepchildren are not covered by this offence which means that a person may have sexual intercourse with their stepchild if the stepchild is 16 years or older.

If there is evidence that the accused engaged in sexual intercourse with the complainant under coercion by the complainant, then the accused will not be guilty of an offence under section 62(2) or 62(3) unless the prosecution can rebut the evidence. This is contained in section 62(4) of the Crimes Act 1900. However, it is important to note that this does not apply to offences under section 62(1); that is, a complainant under the age of 10 years cannot be considered to have coerced the accused. Coercion is the use of force or threats to make someone do something against their will.

It is also important to note that there is a legal presumption that the accused knew, at the time of the alleged offence, that he/she was related to the complainant in the way charged. That is, unless there is evidence to the contrary it will be presumed that the accused knew of the prescribed relationship with the complainant.

What Is Sexual Intercourse?

To understand why you may be charged with incest, it is important to acknowledge the broad interpretation given to ‘sexual intercourse.’ Sexual intercourse is defined in section 50 of the Crimes Act 1900 as:

  • The penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
  • The penetration, to any extent, of the genitalia or anus of a person by an object, being penetration carried out by another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
  • The introduction of any part of the penis of a person into the mouth of another person; or
  • Fellatio; or
  • Cunnilingus; or
  • The continuation of sexual intercourse as defined in any of the above.

Where:

  • ‘Genitalia’ includes surgically constructed or altered genitalia; and
  • ‘Object’ includes an animal.

What Actions Might Constitute Incest?

An example of what would constitute incest:

  • You are bathing your 18 month old daughter. While doing so, you insert a finger in her vagina. You would be liable to imprisonment for 20 years as she is under the age of 10 years, and is therefore an offence under section 62(1) of the Crimes Act 1900.
  • You are 26 years old. Your father passes out drunk and you insert a pen into his anus while he is sleeping. You would be liable to imprisonment for 10 years as you have committed an offence under section 62(3) of the Crimes Act 1900.
  • You are 19 years old, staying at your parents’ coast house with your half-sister who is also 19 years old. You and your half-sister have sexual intercourse. Both of you have committed an offence under section 62(3) of the Crimes Act 1900 and would each be liable to imprisonment for 10 years.

Examples of what would NOT constitute incest:

  • You are 19 years old, staying at your parents’ coast house with your step-sister who is also 19 years old. You and your step-sister have sexual intercourse. In this case, neither of you have committed an offence as the relationship is one of step-siblings rather than half-siblings.
  • You have consensual sex with your step-son who is 17 years old. This is not an offence because your step-son is over the age of 16 years and is the relationship of step-parent/step-child is not covered by section 62(3) of the Crimes Act 1900.
  • Your stepson who is 15 years old grabs your hair and threatens to bash you if you do not perform fellatio on him. You are horrified but you comply because you are scared of what he will do to you if you resist. You would not be guilty of an offence as the sexual intercourse was performed as a result of coercion.

What The Prosecution Must Prove

To convict you of an incest offence under section 62(1) of the Crimes Act 1900, the prosecution must prove each of the following matters beyond a reasonable doubt:

  • That you engaged in an act; and
  • That act constituted sexual intercourse; and
  • The sexual intercourse was engaged with a person under 10 years of age; and
  • That person was your lineal descendant, sister, half-sister, brother, half-brother or stepchild.

As there is a presumption that, at the time of the alleged offence, you knew that that person was your lineal descendant, sister, half-sister, brother, half-brother or stepchild, the prosecution is not required to prove this unless there is evidence to the contrary.

To convict you of an incest offence under section 62(2) of the Crimes Act 1900, the prosecution must prove each of the following matters beyond a reasonable doubt:

  • That you engaged in an act; and
  • That act constituted sexual intercourse; and
  • The sexual intercourse was engaged with a person under 16 years of age; and
  • That person was your lineal descendant, sister, half-sister, brother, half-brother or stepchild.

As there is a presumption that, at the time of the alleged offence, you knew that that person was your lineal descendant, sister, half-sister, brother, half-brother or stepchild, the prosecution is not required to prove this unless there is evidence to the contrary.

To convict you of an incest offence under section 62(3) of the Crimes Act 1900, the prosecution must prove each of the following matters beyond reasonable doubt:

  • That you engaged in an act; and
  • That act constituted sexual intercourse; and
  • The sexual intercourse was engaged with a person of or above the age of 16 years; and
  • That person was your lineal ancestor, lineal descendant, sister, half-sister, brother or half-brother.

As there is a presumption that, at the time of the alleged offence, you knew that that person was your lineal ancestor, lineal descendant, sister, half-sister, brother or half-brother, the prosecution is not required to prove this unless there is evidence to the contrary.

Possible Defences For Incest

The common ways to defend this charge are:r

  • To argue that the act did not constitute sexual intercourse; or
  • To argue that, at the time of the alleged offence, your relationship with the complainant was not one of the relationships prescribed by section 62 of the Crimes Act 1900; or
  • To argue that, at the time of the alleged offence, you did not know you had the prescribed relationship with the complainant.

Which court will hear your matter?

Incest with a person of or above the age of 16 years (i.e. an offence under section 62(3) of the Crimes Act 1900) can be dealt with in the ACT Magistrates Court or ACT Supreme Court, depending what you elect. However, incest with a person under the age of 16 years (i.e. offences under section 62(1) and 62(2) of the Crimes Act 1900) are strictly indictable offences and will be dealt with in the ACT Supreme Court.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

WHY CHOOSE ARMSTRONG LEGAL?

Armstrong Legal
Social Rating
4.5
Based on 274 reviews
×
Legal Hotline.
Open 7am - Midnight, 7 Days
Call 1300 038 223