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7.3.8.3 - Charge: Incest with sibling or half-sibling (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 accused’s sibling or step-sibling (s50F).

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 accused’s step-child, see Charge: Incest with step-child (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).

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 NOA’s [brother/sister/half-brother/half-sister].

Three – NOA knew that NOC was [his/her] [brother/sister/half-brother/half-sister].

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 NOA’s [brother/sister/half-brother/half-sister].

This matter is not in dispute and so you should have no difficulty finding that NOC is NOA’s [insert family relationship].[3]

Knowledge of relationship

The third element that the prosecution must prove is that the accused knew that NOC was [his / her] [brother/sister/half-brother/half-sister].

It has not been disputed that NOA knew that NOC was [his/her] [insert relevant relationship]. You should therefore have no difficulty finding this element proved.[4]

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].

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] If the relationship between the accused and NOC has been disputed, this section of the charge will need to be modified accordingly.

[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.

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)

7.3.8.2 - Charge: Incest with step-child (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)