This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Incest
A charge of incest is not reserved for sexual acts involving children, a person can be guilty of incest because of a sexual act performed with an otherwise consenting adult, but it is most commonly laid in relation to offending conduct perpetrated against a child (often in the course of maintaining a sexual relationship with a child to whom the accused person is related).
Legislation
Incest is created by subsection 222(1) of the Criminal Code Act 1899 which provides that:
“Any person who—
- has carnal knowledge with or of the person’s offspring or other lineal descendant, or sibling, parent, grandparent, uncle, aunt, nephew or niece; and
- knows that the other person bears that relationship to him or her, or some relationship of that type to him or her;
commits a crime.
Maximum penalty—imprisonment for life.”
Incest is the crime of engaging in penetrative sex with a person you know to be your offspring or lineal descendant or otherwise related to you in a relevant way. The relationship between an accused person and a complainant does not have to be by blood and, pursuant to subsections 222(5) and (6) of the Act, the offence can be committed where the relationship is half, step (whether by marriage or de facto cohabitation), adoptive or a foster arrangement.
A charge of incest is not reserved for sexual acts involving children; a person can be guilty of incest because of a sexual act performed with an otherwise consenting adult, but it is most commonly laid in relation to offending conduct perpetrated against a child (often in the course of maintaining a sexual relationship with a child to whom the accused person is related).
What Actions Might Constitute Incest?
Any penetrative sexual act (called “carnal knowledge” under the law) when it is engaged in with a person to whom you are related will likely constitute the offence of incest.
There is no distinction under the law between types of penetrative sexual acts (for example oral, anal or genital) and any form of penetration, to any extent, can constitute the offence, providing the relevant relationship exists between the accused person and the complainant.
A biological grandfather who has sex with his grandson or granddaughter is likely guilty of incest in the same way that a young man or woman would be if they had sex with a foster, or adopted, sibling.
What the Police Must Prove
To convict you of incest it must be proved that you had carnal knowledge (that is, penetrative sex) with a person who was related to you as either:
- your child or other lineal descendant, or
- your sibling, parent, grandparent, uncle, aunt nephew or niece.
There is no need for the prosecution to prove any lack of consent where sex occurs between related people because, even if both parties are otherwise consenting adults, the offence can still be committed.
Possible Defences to a Charge Of Incest
As with all criminal charges, there is a “default defence” to a charge of incest where the prosecution evidence fails to prove all the elements of the offence beyond a reasonable doubt (for example because a person cannot be proved to have known that they are related to the person with whom they had otherwise consensual sex).
There are also 2 specific defences to a charge of incest in section 222 of the Act. Firstly, it is a defence to the charge if an accused person proves that they had carnal knowledge of their relative because of that relative’s coercion. Secondly, a person is not guilty of incest if they have sex with a step-relative in circumstances where that step-relationship commenced after both parties became adults.
Which Court Will Hear Your Matter?
Even though it is punishable by life imprisonment, a charge of incest will be heard and determined in the District Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.