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7.3.9.3 - Charge: Incest with child of de facto spouse (Pre- 1/7/17)

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When to use this charge

This charge concerns acts of sexual penetration involving the child, step-child or lineal descendant of the accused’s de facto spouse (ss44(2)).

Alternate charge

For alleged offences involving the accused’s child, step-child or lineal descendant (s44(1)), or the accused’s brother, half-brother, sister or half-sister (s44(4)), see Charge: Incest with children and siblings (Pre-1/7/17).

For alleged offences involving the accused’s father, mother, step-father, step-mother or lineal ancestor (s44(3)), see Charge: Incest with parent (Pre-1/7/17).

 

The elements

I must now direct you about the crime of incest. To prove this crime, the prosecution must prove the following five elements beyond reasonable doubt. [1]

One - the accused took part in an act of sexual penetration with the complainant.

Two - the accused took part in this act intentionally.

Three - the complainant is the [identify family relationship, i.e. "daughter", "son", "step-daughter", "step-son", or other "lineal descendant"] of the accused’s de facto spouse.

Four - the accused knew that the complainant was the [insert relevant family relationship] of [his/her] de facto spouse.

Five - the complainant was under the age of 18 at the time of sexual penetration.

I will now explain each of these elements in more detail. [2]

Taking part in sexual penetration

The first element relates to what the accused is alleged to have done. The prosecution must prove beyond reasonable doubt that the accused took part in an act of sexual penetration with the complainant. [If in issue, add: The prosecution must also prove that the relevant acts of the accused were performed consciously, voluntarily and deliberately.] [3]

Act of sexual penetration

The law defines sexual penetration as the introduction of a person’s penis, body part or object into another person’s vagina or anus. It also includes putting a penis into someone’s mouth.

For this first element to be satisfied, the prosecution must prove that NOA took part in one of these acts. The law says that both the person who sexually penetrates and the person who is penetrated are regarded as "taking part" in sexual penetration. [If relevant add: This means that if you find that NOA was sexually penetrated by NOC, you will be satisfied that the accused "took part" in that act of sexual penetration.]

In this case the prosecution seeks to prove that NOA took part in an act of sexual penetration with NOC [describe relevant form of penetration, e.g. "by putting his finger into NOC’s anus"/ "when he took NOC’s penis in his mouth"].

[If relevant add:

[In vaginal penetration cases, add the following shaded section.]

The law says that the vagina includes the external genitalia – that is the outer or external lips of the vagina. So the prosecution can prove this element by proving that [NOA / NOC] introduced [identify body part or object] to any extent between the outer lips of [NOA/NOC’s] vagina.

[In cases involving alleged penetration in the context of a medical procedure or hygienic purposes add the following shaded section.]

However, according to the law, the introduction of an object or body part other than the penis into a person’s [vagina/anus] does not always amount to sexual penetration. It is not sexual penetration if it is done in good faith for medical or hygienic purposes. In this case, the accused submits [refer to relevant evidence]. It is for the prosecution to prove to you, beyond reasonable doubt, that the insertion of [name of object] by NOA into NOC’s [anus/vagina], was not done in good faith for [medical/hygienic] purposes.

In this case [insert relevant evidence or competing arguments about proof of the accused’s participation in an act of sexual penetration].

The act was conscious, voluntary and deliberate

[If the evidence or arguments have placed voluntariness in issue, add the following shaded section.]

As I have directed you, the prosecution must prove that the relevant acts of the accused were performed consciously, voluntarily and deliberately.

In this case you are concerned with NOA’s alleged act in [describe relevant act of participation, e.g. "introducing his finger into NOC’s anus"/ "receiving NOC’s penis into his mouth".]

This requirement is in issue because [describe the evidence or arguments that place voluntariness in issue].

You must find NOA not guilty unless the prosecution can satisfy you that [describe the finding that proves voluntariness in the circumstance of the case, e.g. "NOA introduced his finger into NOC’s vagina deliberately, and not accidentally" or "NOA was conscious and not asleep and dreaming at the time of the penetration"].

In this case [insert evidence and arguments relevant to proof of this element].

Intention

The second element that the prosecution must prove beyond reasonable doubt is that the accused intended to take part in the act of sexual penetration with the complainant. [4]

[If intention is not in issue, add the following shaded section.]

This element is not in issue here. [If appropriate, explain further, e.g.

 

Relationship to the complainant

The third element that the prosecution must prove is that the complainant is the [insert relevant family relationship] of the accused’s de facto spouse. [5]

There are two parts to this element. First, the prosecution must prove that NOA and [insert name of de facto spouse] were de facto spouses. A "de facto spouse" is a person who is living with someone of the opposite sex as if they were married, although they are not. In this case it is alleged that NOA and [insert name of de facto spouse] were de facto spouses because [insert relevant evidence].

Secondly, the prosecution must prove that complainant was the [insert relevant family relationship] of the accused’s de facto spouse. In this case,the prosecution submitted that NOC was the [insert family relationship] of NOA’s alleged de facto spouse, [insert name of de facto spouse]. [Insert details of any evidence supporting the existence of the relationship between the accused and the complainant.] The defence responded [insert evidence].

So for this third element to be met, you must be satisfied, beyond reasonable doubt, that NOA and [insert name of de facto spouse] were de facto spouses, and that NOC is the [insert family relationship] of [insert name of de facto spouse].

Knowledge of relationship

The fourth element that the prosecution must prove is that the accused knew that the complainant was [his/her] de facto spouse’s [insert relevant family relationship]. [6]

In this case, the prosecution alleged that NOA knew that NOC was [insert name of de facto spouse and relevant family relationship. Insert relevant evidence]. The defence responded [insert relevant evidence].

Age of the complainant

The fifth element that the prosecution must prove is that the complainant was under the age of 18 at the time of the sexual penetration.

In this case, it has not been disputed that NOC was under 18 at the time the alleged act of sexual penetration took place. The main issue in this case is [insert relevant issue]. [7]

Summary

To summarise, before you can find NOA guilty of incest, the prosecution must prove to you beyond reasonable doubt:

One – that NOA took part in an act of sexual penetration with NOC; and

Two – that NOA intended to take part in an act of sexual penetration with NOC; and

Three – that NOC is the [insert relevant family relationship] of NOA’s de facto spouse; and

Four – that NOA knew that NOC was the [insert relevant family relationship] of NOA’s de facto spouse; and

Five – that NOC was under the age of 18 at the time of the sexual penetration.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of Incest.

 

Notes

[1] If either of the defences of coercion or compulsion is in issue, a section will need to be added to this charge. Coercion applies to offences alleged to have been committed prior to 1 December 2006, "compulsion" to offences alleged to have been committed on or after 1 December 2006. See the Incest for further information.

[2] If an element is not in issue it should not be explained in full. Instead, the element should be described briefly, followed by an instruction such as: "It is [admitted / not disputed] that NOA [describe conduct, state of mind or circumstances that meets the element], and you should have no difficulty finding this element proven."

[3] Described in the instructions within this charge as the "voluntariness" requirement.

[4] If the accused is alleged to have penetrated the complainant, "intention" will only rarely be in issue. This constitutes an offence of basic intent, that is, the intent to commit the physical act of penetrating the complainant. This means that proof of intent will rarely be separated from proof of the act, and "intention" will rarely be an independent issue. Any mental state issues related to the act of penetration (e.g. the negation of intent by involuntariness, unconsciousness or accident) should generally be addressed by voluntariness directions. Offences involving penetration of the accused by the complainant may raise different issues.

[5] Note that the presumption specified in s44(7)(b) (that people who are reputed to be related to each other in a particular way are in fact related in that way) does not to apply to offences under s44(2).

[6] Note that the presumption specified in s44(7)(a) (that the accused knew that he or she was related to the other person in the way alleged) does not to apply to offences under s44(2).

[7] If the complainant’s age has been disputed, this section of the charge will need to be modified accordingly.

Last updated: 3 December 2012

See Also

7.3.9 - Incest (Pre-1/7/17)

7.3.9.1 - Charge: Incest with child, step-child or sibling (Pre- 1/7/17)

7.3.9.2 - Checklist: Incest with child, step-child or sibling (Pre- 1/7/17)

7.3.9.4 - Checklist: Incest with child of de facto spouse (Pre- 1/7/17)

7.3.9.5 - Charge: Incest with parent (Pre- 1/7/17)

7.3.9.6 - Checklist: Incest with parent (Pre- 1/7/17)