Incest
The offence of Incest is set out in section 78A of the Crimes Act 1900 (NSW) (the Act).
The offence of Incest carries a maximum penalty of 8 years imprisonment.
What is Incest?
The offence of Incest is set out in section 78A of the Crimes Act 1900 (NSW) (the Act) and states:
(1) Any person who has sexual intercourse with a close family member who is of or above the age of 16 years is liable to imprisonment for 8 years.
(1A) A person does not commit an offence under this section if the person is of or above the age of 16 years and under the age of 18 years at the time the offence is alleged to have been committed and the other person to whom the charge relates is the person’s parent or grandparent.
Incest refers to having sexual relations with someone you are related to. Under the Act, any person who has sexual intercourse with a close family member who is of or above the age of 16 years is guilty of this offence.
The offence criminalises having sexual intercourse with a close family member.
The Act defines a “close family member” as a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent or grandchild, being such a family member from birth.
The Act defines “sexual intercourse” as:
(a) the penetration to any extent of the genitalia or anus of a person by–
(i) any part of the body of another person, or
(ii) any object manipulated by another person, or
(b) the introduction of any part of the genitalia of a person into the mouth of another person, or
(c) the application of the mouth or tongue to the female genitalia, or
(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).
The following acts constitute Incest:
- A sister having sexual intercourse with her half-brother
- A son having sexual intercourse with his mother
- A grandfather having sexual intercourse with his granddaughter
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:
- sexual intercourse took place;
- with a close family member; and
- They were 16 years old or older.
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?
This offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.
Possible Defences to Incest
The following defences may be available for a Incest charge:
- Lack of knowledge about the familial relationship between yourself and the victim
- Duress
Common Questions about Incest
Will I receive a criminal conviction?
A conviction and criminal record for this offence is very likely.
In NSW, a Court can impose any of the following penalties for an Incest charge:
- Gaol Sentence
- Intensive Corrections Order (ICO)
- Community Corrections Orders (CCO)
- Conditional Release Order with conviction (CRO)
- Fine
- Conditional Release Order without conviction (CRO)
- S10A
- Section 10
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 this nature can completely rule out certain career paths such as teaching and a range of government employment options. This offence may also result in sentences that include imprisonment even where an individual has no previous convictions.
Will I go to Gaol for a Incest charge?
A Gaol sentence is the most common sentence for a Incest charge. The average full term prison sentence imposed for the offence is 7 years and the average non-parole period (the minimum term in prison) is 5 years.
Does the law consider genetic relationships?
Yes, the law focuses on biological relationships. Incest charges are based on the blood relationship between individuals, regardless of whether they were raised together or not. This means that even if individuals were separated at birth and later reunited, engaging in sexual intercourse would still constitute incest under the law.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
This article was written by Sheridan Gow
Sheridan Gow is a Solicitor based in our Sydney Criminal Law team. She is presently our New Client Enquiries Solicitor and is often the first point of contact for all of Armstrong Legal’s criminal law clients. Sheridan obtained her double degree in a Bachelor of Laws and Psychology and was admitted to the New South Wales Supreme Court to practice...
