What is Incest?
Incest is sexual penetration with another person who is on of the following; your child or lineal descendent, your step child, your parent, your step parent or your lineal ancestor, or your sibling or half sibling.
***Please be aware this section has now been repealed and the correct and current Victorian law exists under the following sections. There are a number of charges that now encapsulate the different types of categories of incest***
- s50C Sexual penetration of a child or lineal descendent (Incest)
- s50D Sexual Penetration Of A Step-Child(Incest)
- s50E Sexual Penetration Of A Parent, Lineal Ancestor Or Step-Parent(Incest)
- s50F Sexual Penetration of a Sibling or Half-Sibling(Incest)
The new sections were introduced by the Crimes Amendment (Sexual Offences) Act 2016 (No. 47 of 2016) and came into operation on 1 July 2017.
This means that where the offence date predates 1 July 2017, the prosecution must proceed under the old section. The old section is s44 of the Crimes Act 1958 and is the subject of this article. This section has been repealed and no longer exists but is still relevant for old offences.
If you have been charged under the old section, that is for offences that predate 1 July 2017, then this article contains the correct information:
The charge of Incest (Pre 2017)
This is a very serious charge and must be prepared for accordingly. There are a number of issues to consider if you have been charged with this offence.
- Can the prosecution make out their case?
- Did you intentionally sexually penetrate another person who you knew to be a member of your family?
- Are you clear on what a ‘prescribed family relationship’ is?
Section 44 of the Crimes Act 1958 outlines the different types of familial relationships that fall within the offence. As consent is not a defence to the charge, this must be kept in mind when informing the Court as to how you wish to plead.
You should also bear in mind that most people who plead guilty to this offence are looking at a significant term of imprisonment to serve immediately.
Please read below for more information in relation to this charge.
The offence
Section 44 of the Crimes Act 1958.
The prosecution must prove:
The defendant must have taken part in an act of sexual penetration with another person;
The sexual penetration must have been intentional;
The parties must have been in a prescribed family relationship;
The defendant must have known about that relationship.
The maximum penalty
Level 2 imprisonment being a maximum of 25 years.
Where will my case be heard?
Incest cases can only be heard in the County Court or Supreme Court of Victoria.
Questions to consider
Do you have a defence?
If you are pleading guilty, what can you do to minimise your sentence?
What to do next?
Arrange a time to see an experienced sex offence criminal lawyer urgently. For a charge as serious as this one, preparation is critical to achieving a favourable outcome. Don’t leave it to the last minute.
If you have been charged with Incest make an appointment to see one of our experienced criminal lawyers today.
The legislation
44. Incest
(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.
Level 2 imprisonment (25 years maximum).
(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.
Penalty: Level 2 imprisonment (25 years maximum).
(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.
Penalty: Level 6 imprisonment (5 years maximum).
(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.
Penalty: Level 6 imprisonment (5 years maximum).
(5) Consent is not a defence to a charge under this section.
(6) It is a defence to a charge under this section for the person charged to prove that he or she took part under the coercion of the other person.
(7) In all proceedings for offences under this section (except under sub-section (2)) it shall be presumed in the absence of evidence to the contrary—
(a) that the accused knew that he or she was related to the other person in the way alleged; and
(b) that people who are reputed to be related to each other in a particular way are in fact related in that way.
