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7.3.8.2 - Charge: Incest with step-child (From 1/7/17)

Click here to obtain a Word version of this document for adaptation.

When to use this charge

This charge concerns acts of sexual penetration involving the accused and the step-child or lineal descendants of the accused’s spouse or domestic partner (s50D).

Alternative charges

For alleged incest offences involving the accused’s own child or lineal descendant see Charge: Incest with children and lineal descendants (From 1/7/17).

For alleged incest offences involving the sexual penetration of a parent, lineal ancestor or step-parent, see Charge: Incest with parent, lineal ancestor or step-parent (From 1/7/17).

For alleged incest offences involving the accused’s brother, half-brother, sister or half-sister, see Charge: Incest with sibling or half-sibling (From 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 3 elements beyond reasonable doubt.

One - the accused intentionally sexually penetrated NOC.[1]

Two - NOC is a [child / lineal descendant] of NOA’s [spouse / domestic partner].

Three – NOA knew that NOC was a [child / lineal descendant] of [his/her] [spouse / domestic partner].

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

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 intentionally sexually penetrated the complainant, NOC.

The prosecution seeks to prove this element by showing that NOA [describe relevant form of penetration, e.g. "put his finger into NOC’s anus"]. I direct you as a matter of law that if you find that NOA did this, then the prosecution has proved this first element.

[If relevant add:

[If the evidence or arguments have placed the intentional or voluntary nature of the acts in issue, add the following shaded section.][2]

For this element to be met, the act of [describe relevant act of penetration, e.g. "introducing his finger into NOC’s anus"] must have been done intentionally.

This means that you must find NOA not guilty unless the prosecution can satisfy you that [describe the finding that proves intention 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 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 introduced [identify body part or object] to any extent between the outer lips of NOA’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 into a person’s [vagina/anus] does not always amount to sexual penetration. It is not sexual penetration if it is done in the course of a procedure carried out 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 the course of a procedure carried out in good faith for [medical/hygienic] purposes.

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

Relationship to the other participant

The second element that the prosecution must prove is that NOC is the [child / lineal descendant] of NOA’s [spouse / domestic partner].

[If the parties are married or in a registered domestic relationship, add the following shaded section]

The law says that two people are [spouses / domestic partners] if they are [married / in a registered domestic relationship]. You have heard evidence that [identify relevant evidence]. You should therefore have no difficulty finding this element proved.

[If the jury must determine whether NOA is the domestic partner of the child’s parent or ancestor, add the following shaded section]

[Warning! The law on the relevance of the factors (a) to (h) below is uncertain. Judges should seek submissions on which factors are relevant. See Incest (From 1/7/17) for guidance.]

For this element, you must determine whether NOP[3] and NOA are domestic partners. The law says that two people are domestic partners when they are not married but are living together as a couple on a genuine domestic basis [if relevant, add: regardless of gender or gender identity].

To determine whether two people are domestic partners, you must look at all the circumstances of their relationship. These include [add the following as relevant in the context of the case:

(a) the degree of mutual commitment to a shared life;

(b) the duration of the relationship;

(c) the nature and extent of common residence;

(d) whether or not a sexual relationship exists;

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;

(f) the ownership, use and acquisition of property;

(g) the care and support of children;

(h) the reputation and public aspects of the relationship.

The prosecution argues that [refer to relevant prosecution evidence and arguments]. The defence dispute this, saying [refer to relevant evidence and arguments].

Knowledge of relationship

The third element that the prosecution must prove is that the accused knew that NOC was a [child / lineal descendant] of [his/her] [spouse/domestic partner].

[If the prosecution argues that NOA is married or in a registered domestic relationship, add the following shaded section]

It has not been disputed that NOA knew that NOC was a [child / lineal descendant] of [his/her] [spouse/domestic partner]. You should therefore have no difficulty finding this element proved.[4]

[If the prosecution argues that NOA is in an unregistered domestic relationship, add the following shaded section]

[Warning! The operation of this element is uncertain. Judges should seek submissions from the parties]

As you are aware, in this case the prosecution says that NOA and NOP were in an unregistered domestic relationship.

To prove this element, the prosecution must therefore prove that NOA knew that NOC was a [child / lineal descendant] of NOP and must know the facts that gave rise to NOA and NOP being in an unregistered domestic relationship.

You are not looking at whether NOA thought that NOP was [his/her] domestic partner. Your focus must be on whether NOA was knew or was aware of the objective factors which meant that [s/he] and NOP were domestic partners. That is, did NOA know, or was NOA aware, of the factors which an outside observer would use to conclude that [s/he] and NOP were living together as a couple on a genuine domestic basis?

[Refer to relevant evidence and arguments].

Defences

Non-consent of accused

[If the accused relies on the non-consent defence in Crimes Act 1958 s50H, add the following shaded section]

In this case, there is an additional matter the prosecution must prove before you can find NOA guilty of incest.

The prosecution must prove that the accused consented to the sexual penetration. That is, the prosecution must show that NOA freely agreed to [identify relevant conduct].

[If the evidence raises the possibility that one of the circumstances listed in Crimes Act 1958 s36(2) exists, add the following darker shaded section]

In order to show that NOA freely agreed to sexually penetrate NOC, the prosecution must also show that NOA:

[Insert the following statements as appropriate:

  1. Did not submit to the act because of force or fear of force, whether to NOA or to someone else;
  2. Did not submit to the act because of fear of harm of any type, whether to NOA or someone else or an animal;
  3. Did not submit to the act because NOA was unlawfully detained;
  4. Was not asleep or unconscious;
  5. Was not so affected by alcohol or another drug as to be incapable of consenting to the act;
  6. Was not so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;
  7. Was capable of understanding the sexual nature of the act;
  8. Was not mistaken about the sexual nature of the act;
  9. Was not mistaken about the identity of any other person involved in the act;
  10. Did not mistakenly believe that the act was for medical or hygienic purposes;
  11. Said or did something to indicate consent; and
  12. Having given consent to the act, did not later withdraw consent to the act taking place or continuing.

Remember though that even if you accept that [refer to relevant s36(2) circumstance, e.g. NOA was not asleep or unconscious], you must still decide whether the prosecution has proved, beyond reasonable doubt, that NOA consented to the sexual penetration alleged. Finding that [refer to relevant s36(2) circumstance as described above] only removes one barrier to finding that NOA consented.

[Refer to relevant prosecution and defence evidence and arguments].

No history of care, supervision or authority

[If the accused relies on the defence under Crimes Act 1958 s50I, add the following shaded section]

For this offence, the law recognises a defence. There are three parts to this defence.

First, NOC was aged 18 years or more at the time of the relevant acts. There is no dispute about this.

Second, NOA must not have engaged in sexual activity with NOC when NOC was under 18 years of age. The prosecution disputes this.

Third, NOC must not, at any time, have been under NOA’s care, supervision or authority. The prosecution also disputes this.

As I told you at the start of the trial, the prosecution must prove the accused’s guilt. This means the prosecution must prove that the defence does not apply. In other words, the prosecution must either prove that NOA engaged in sexual activity with NOC when NOC was under 18 years of age or the prosecution must prove that at some time NOC was under NOA’s care, supervision or authority.

[Refer to relevant evidence and arguments regarding possible sexual activity between NOC and NOA before NOC turned 18 years of age].

[If care, supervision or authority is in issue and the prosecution relies on a prescribed relationship, add the following darker shaded section.]

Parliament has defined a number of relationships where a child is deemed to be under the care, supervision and authority of another person. This includes [name relevant relationships from s37 list].

In this case the prosecution alleged that NOA had been NOC’s [describe relationship]. [Insert prosecution evidence]. The defence responded [insert relevant evidence and/or arguments].

If you find beyond reasonable doubt that NOA had been NOC’s [identify relationship] [identify relevant time], the prosecution has proved this defence does not apply. If the prosecution has also proved the three elements of the offence, then you may find NOA guilty of the charge of incest.

[If care, supervision or authority is in issue and the prosecution does not rely on a prescribed relationship, add the following darker shaded section.]

The words "care, supervision or authority" all describe different types of relationships where one person is in a position to exploit or take advantage of that relationship to influence a child to engage in an act of sexual penetration. You should take this into account when deciding whether the prosecution has proved that NOC was ever under NOA’s care, supervision or authority.

The relationship of care, supervision or authority does not have to be a formal one. There does not, for example, have to have been a formal agreement that NOA would take care of NOC. An informal relationship of care, supervision or authority is sufficient.

[If relevant, add: You do not need to find that the alleged act of penetration was actually connected with, or influenced by, the relationship of care, supervision or authority. It is sufficient if you are satisfied that at some time, NOC had been under NOA’s care, supervision or authority.]

In this case the prosecution alleged that NOC had been under NOA’s [care/supervision/authority]. [Insert prosecution evidence]. The defence responded [insert relevant evidence and/or arguments].

It is for you to determine, on the basis of all the evidence, whether the prosecution has proven, beyond reasonable doubt, that NOC had been under NOA’s care, supervision or authority at a time before the alleged offence. Unless the prosecution has proved that NOC had been under NOA’s care, supervision or authority at an earlier time, you must find NOA not guilty of this offence.

[If the accused may be unaware of the facts giving rise to a relationship of care, supervision or authority, add the following darker shaded section][5]

The law states that NOA must know and be aware of the facts that gave rise to a relationship of care, supervision or authority. For example, if NOA did not recognise that NOC had been his/her [describe relevant relationship], then the prosecution could not prove the defence does not apply. In other words, the prosecution could not prove NOA’s guilt.

[Insert relevant prosecution and defence evidence and arguments].

Summary

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

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 the charge involves the accused causing or allowing the complainant to sexually penetrate the accused, these directions must be modified accordingly.

[2] Because of how the offence is defined, the issue of intention is likely inseparable from the question of voluntariness. Where the issue is raised, the judge should direct the jury on the specific matters the jury must consider to find that the accused’s conduct was voluntary and intentional (e.g. disproof of accident or proof that the accused was conscious).

[3] Name of the complainant’s parent or lineal ancestor.

[4] If the accused’s knowledge of their relationship to the other party has been disputed, this section of the charge will need to be modified accordingly.

[5] Warning! Judges should seek submissions from parties as to whether this direction is required, as it is adapted from caselaw developed in a different context.

Last updated: 19 March 2018

See Also

7.3.8 - Incest (From 1/7/17)

7.3.8.1 - Charge: Incest with child or lineal descendant (From 1/7/17)

7.3.8.3 - Charge: Incest with sibling or half-sibling (From 1/7/17)

7.3.8.4 – Checklist: Incest with child, lineal descendant, step-child or sibling (From 1/7/17)

7.3.8.5 - Charge: Incest with parent, lineal ancestor or step-parent (From 1/7/17)

7.3.8.6 – Checklist: Incest with parent (From 1/7/17)