Incest

In the ACT, it is a criminal offence of Incest to engage in sexual intercourse with a person is related to you. The maximum penalty for these offences ranges from 10 years to 20 years imprisonment. The maximum penalty depends on the age of the complainant at the time the offence occurred. 

What is Incest?

Pursuant to section 62 of the Crimes Act 1900 (ACT), it is a criminal offence for a person to engage in sexual intercourse with another person whom they are related to. This definition includes: lineal descendant, sister, half-sister, brother, half-brother, and step-child.

The Crimes Act provides for three different categories of Incest, these categories are based on the age of the complainant at the time that the offence is said to have occurred. 

The three categories are as follows:

1. Section 62(1): the complainant is under 10 years of age at the time of offending. This offence carries a maximum penalty of 20 years imprisonment. 
2. Section 62(2): the complainant is under the age of 16 years, and over the age of 10 years at the time of offending. This offence carries a maximum penalty of 15 years imprisonment. 
3. Section 62(3): the complainant is over the age of 16 years. This offence carries a maximum penalty of 10 years imprisonment. 

The following acts 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 because she is under the age of 10 years (section 62(1) of the Act).
• 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 Act.
• 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 Act and would each be liable to imprisonment for 10 years.

What Must Be Proven?

For a person to be found guilty of Incest the Prosecution must prove each of the following matters beyond a reasonable doubt:

For an offence under section 62(1) of the Crimes Act:

• 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.

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.

For an offence under section 62(2) of the Crimes Act:

• 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, but over the age of 10 years; and
• that person was your lineal descendant, sister, half-sister, brother, half-brother or stepchild.

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.

For an offence under section 62(3) of the Crimes Act:

• 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.

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.

If the Prosecution does not prove every single one of the above elements, you will be found not guilty. 

Which Court Will Hear The Matter?

It will depend on which Incest offence you are charged with.

If you are charged with Incest pursuant to section 62(1) or 62(2), these offences are Strictly Indictable. This means that they must be finalised (either by way of a trial or sentence) in the Supreme Court. The matters will start in the Magistrates Court and, eventually, be Committed to the Supreme Court to be finalised. 

If you are charged with Incest pursuant to section 62(3), this offence is Indictable. This means that it will be dealt with in the Supreme Court, unless you consent to jurisdiction of the Magistrates Court. If you consent to summary jurisdiction, your matter will be finalised in the Magistrates Court. 

Possible Defences to Incest

The following defences may be available for an Incest charge:

• the act did not constitute sexual intercourse; or
• at the time of the alleged offence, your relationship with the complainant was not one of the relationships under section 62 of the Crimes Act; or
• at the time of the alleged offence, you did not know you had the prescribed relationship with the complainant; or 
• you only engaged in sexual intercourse with the complainant under coercion or threats made by the complainant (however, this does not apply to an offence where the complainant is under 10 years of age).

Common Questions about Incest

Will I receive a criminal conviction?

A conviction and criminal record for this offence is very likely.

In the ACT, a Court can impose any of the following penalties for a common assault charge:

• Full-time imprisonment
• Intensive Corrections Order (ICO)
• Suspended Sentence 
• Fine
• Good Behaviour Order 
• Conviction
• Non-conviction 

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for Incest might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of a sexual nature can completely rule out certain career paths such as teaching and a range of government employment options. Sexual offences also often result in sentences that include imprisonment even where a person has no previous convictions. 

Will I go to Gaol for an Incest charge?

It is highly likely that you will receive a term of full-time imprisonment for an Incest offence, regardless of whether you have a prior criminal history. Any Incest offence carries lengthy maximum penalties and people who plead guilty, or are found guilty of, an Incest offence are often sentenced to a term of full-time imprisonment.

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