Call Us (03) 9670 5111

Client Reviews
Case Results
Doogue + George

Incest

incest lawIncest, 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. 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 44 of the Crimes Act 1958 (“the Act”) which reads as follows:

  1. A person must not take part in an act of sexual penetration with a person whom he or she knows to be his or her child or other lineal descendant or his or her step-child.
    • (1A) The baseline sentence for an offence under subsection (1) is 10 years if
      • the court is satisfied beyond reasonable doubt that the victim was, at the time of the offence under the age of 18.
  2. A person must not take part in an act of sexual penetration with a person under the age of 18 whom he or she knows to be the child or other lineal descendant or the step-child of his or her de facto spouse.
    • (2A) The baseline sentence for an offence under subsection (2) is 10 years.
  3. A person who is aged 18 or older must not take part in an act of sexual penetration with a person whom he or she knows to be his or her father or mother or other lineal ancestor or his or her step father or step-mother.
  4. A person must not take part in an act of sexual penetration with a person whom he or she knows to be his or her sister, half-sister, brother or half-brother.

Under incest law, the maximum penalty that may be imposed under s 44(1) and (2) is 25 years. The maximum penalty under s.44(3) and (4) is 5 years.

Baseline sentences are specified prison sentences that the Victorian Parliament intends 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 law jurisdictional limitsIncest is an indictable offence which means 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, there must have been actual penetration to some extent.1 Further, penetration only needs to have been slight or fleeting and does not need to have been committed for the purposes of sexual gratification.2 If the accused is male, incest law does not require that the prosecution proves 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.3

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.

S.35(2) of the Act defines the person who sexually penetrates and the person who is penetrated are 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.4

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, whom was not known to the accused at the time, cannot be found guilty of incest.

In a trial, the questions a judge will ask the jury to consider are:

  1. Did the accused take part in an act of sexual penetration with the complainant?

    If yes, proceed to question 2.
    If no, then the accused is not guilty of incest.

  2. Did the accused intend to take part in that act of sexual penetration with the complainant?

    If yes, proceed to question 3.
    If no, then the accused is not guilty of incest.

  3. Is the complainant the [insert relevant family relationship] of the accused?

    If yes, proceed to question 4.
    If no, then the accused is not guilty of incest.

  4. Did the accused know that the complainant was [his/her] [insert relevant family relationship]?

    If yes, then the accused is guilty of incest (as long as you answered yes to 1, 2 and 3).
    If no, then the accused is not guilty of incest.

Incest Law: Defences

Unlike some sexual offences, consent is not a defence to incest.5

Compulsion

An accused will not be guilty of incest if he or she was compelled to take part in the act of sexual penetration.6 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.7

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 2013.8

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 women 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 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.

To view sentencing decisions by Victorian County Courts for the charge of Incest, visit this page.

Check out a criminal case we’ve defended in court involving the offence of Incest:



[1]Anderson v R [2010] VSCA 108.
[2]R v Dunn 15/4/1992 CA NSW.
[3]R v Zaidi (1991) 57 A Crim R 189.
[4]Sutton v R [2015] VSCA 251 at 36.
[5]Section 44(5) of the Act.
[6]Australian Legal Information Institute (AustLII). Victorian Current Acts: Crimes Act 1958 Section 44: Incest <http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s82.html>.
[7]Section 44(6A) of the Act.
[8]Sentencing Snapshot No.160 August 2014.