Incest

 

Which court will the case be heard in?

Incest is an indictable offence which means the matter will be heard in the County Court.

Incest law: The legislation

The offence of Incest is governed by section 50C of the Crimes Act 1958 (“the Act”) which reads as follows:

 

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 body part or object 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.² Further, penetration only needs to have been slight or fleeting and does not need to have been committed for the purposes of sexual gratification.³ 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.⁴

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 states that 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.⁵

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, the accused, in a case of sexual penetration with a de facto spouse’s child who was not known to the accused at the time, cannot be found guilty of Incest.

Defences

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

 

Incest Law: Defences

Unlike some sexual offences, consent is not a defence to Incest.⁷

Compulsion

An accused will not be guilty of incest if he or she was compelled to take part in the act of sexual penetration.⁸ The legislation defines compulsion as:


Other general defences such as wrongful identification, mental impairment, necessity or duress may be used by expert incest lawyers in court depending on the circumstances.

Maximum penalty for section 50C of the Crimes Act 1958

Under Incest law, the maximum penalty that may be imposed is 25 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.

Other matters

If the victim is under 18 years, this offence will be considered a category 1 offence.

According to section 5(2G) of the Sentencing Act 1991, a court must impose a custodial sentence for a category 1 offence.

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.

Sentencing

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.

In Victoria, sentencing of people who commit sexual offences against children has become tougher. It is for this reason that you must speak with experienced specialist incest lawyers so you are fully aware of the hazards of pleading guilty to Incest. If the complainant in your matter is a child, the Court will have no other choice but to impose a term of imprisonment for offences committed on or after 20 March 2017.

Sentencing for incest can be more punitive if the complainant became pregnant. This was the case in the decisions of Director of Public Prosecutions v BGJ and RSJ v The Queen. The Courts in those cases regarded the complainants falling pregnant as aggravating features.

For offences where the complainant is an adult, the Court may impose a Community Correction Order. The Victorian Court of Appeal said that Community Correction Orders are an effective way of achieving all the sentencing principles which prison cannot achieve.

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


_{[1] Australian legal Information Institute. “Crimes Act 1958 – Section 50C: Sexual Penetration of a Child or Lineal Descendant.” Austlii.edu.au. http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s50c.html (accessed January 30, 2020).
[2] Anderson v R [2010] VSCA 108.
[3] R v Dunn 15/4/1992 CA NSW.
[4] R v Zaidi (1991) 57 A Crim R 189.
[5] Sutton v R [2015] VSCA 251 at 36. name=”fn6″>[6] Judicial College of Victoria. “7.3.9.2 – Checklist: Incest with child, step-child or sibling (Pre- 1/7/17)” JudicialCollege.edu.au. https://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4634.htm(accessed January 30, 2020).
[7] Section 50C of the Act.
[8] 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>.
[9] Section 50C of the Act.}