- The current incest offences in Crimes Act 1958 sections 50C – 50F came into force on 1 July 2017, replacing the former incest offences previously in s44. For information on incest committed between 5 August 1991 and 30 June 2017, see Incest (Pre-1/7/17).
- Subdivision (8C) of the Crimes Act 1958 contains four separate incest offences depending on the relationship between the accused and the complainant. These are:
- Sexual penetration of a child or lineal descendant (s50C);
- Sexual penetration of a step-child (s50D);
- Sexual penetration of a parent, lineal ancestor or step-parent (s50E);
- Sexual penetration of a sibling or half-sibling (s50F).
- This topic first discusses matters common to each offence, and then examines any details particular to individual offences.
- All incest offences involve the following three elements:
- The accused intentionally sexually penetrated the complainant or intentionally caused or allowed the complainant to sexually penetrate the accused;
- The accused and the complainant are in the prescribed family relationship;
- The accused knew about that relationship (Crimes Act 1958 ss 50C, 50D, 50E, 50F).
- The offence of sexual penetration of a parent, lineal ancestor or step-parent (s50E) contains an additional element that the accused is 18 years or over.
Intentional sexual penetration
- "Sexual penetration" is defined in s35A of the Crimes Act 1958. See Rape for information about this definition.
- The definition of the incest offences covers both the situation where the accused intentionally sexually penetrates the complainant and where the accused intentionally causes or allows the complainant to sexually penetrate the accused.
- Intention is a fundamental element of the offence. The prosecution must show that the sexual penetration was intentional, in the sense that it was willed and consciously performed (R v MG (2010) 29 VR 305 at ; R v AJS (2005) 12 VR 563 at ).
- While intention will often not be in issue, it is of paramount importance to direct the jury about this element when it is in issue (R v AJS (2005) 12 VR 563 at ).
- Due to the nature of the element, it will often be difficult to separate issues of intention and voluntariness.
- Where the question of voluntariness is in issue (e.g., where the accused alleges that he or she was asleep at the time the act was performed), the jury should also be instructed that the act of penetration must have been conscious, voluntary and deliberate (R v MG (2010) 29 VR 305). See Voluntariness for further information.
Prescribed family members
- The four family relationships prescribed by Subdivision (8C) are:
- The children or lineal descendants of the accused (s50C);
- The children or lineal descendants of the accused’s spouse or domestic partner (s50D);
- The parents, lineal ancestors or step-parents of the accused (s50E);
- The siblings or half-siblings of the accused (s50F).
- Adopted children are deemed to be the children of both their natural parents and their adoptive parents for the purposes of Subdivision (8C) (s50A; Adoption Act 1984 s53(2)).
- Section 50A of the Crimes Act 1958 provides definitions of the following terms:
- Child, being a child by birth, genetic child, by adoption or due to the Status of Children Act 1974;
- Half-sibling, being a person who shares a common parent;
- Lineal ancestor, being a lineal ancestor of the person’s parent (e.g. grandparent or beyond);
- Lineal descendant, being a lineal descendant of the person’s child (e.g. grandchild or beyond);
- Parent, being a parent by birth, genetic parent, parent by adoption or parent due to the Status of Children Act 1974;
- Sibling, being a person who has the same parents as the person;
- Step-parent, being the spouse or domestic partner of A’s parent, where that person is not A’s parent.
- Section 35 of the Act defines ‘domestic partner’ as
(a) a person who is in a registered domestic relationship with the person; or
(b) a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender or gender identity)".
- Crimes Act 1958 s35 also states:
In determining whether persons who are not in a registered domestic relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.
- Relationships Act 2008 s35(2) lists eight circumstances which may be taken into account to determine whether there is a domestic relationship:
(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 Act provides a rebuttable presumption that people who are reputed to be related to each other in a particular way are in fact related in that way (Crimes Act 1958 s50B).
- Prior to the commencement of s50D (Sexual penetration of a step-chlid), the previous equivalent offence applied to the children, step-children and lineal descendants of the accused’s "de facto spouse" (see Crimes Act 1958 s44(2), as in force before 1 July 2017). "De facto spouse" was defined as
a person who is living with a person of the opposite sex as if they were married although they are not (Crimes Act 1958 s35, repealed 1 July 2017).
- When assessing whether there was a de facto relationship, the jury was told to consider whether the accused exercises any parental responsibility for the children of the alleged de-facto spouse, including:
(a) the role played, and responsibility assumed, by the accused with respect to the child(ren);
(b) the authority exercised by the accused over the child(ren); and/or
(c) the view which the child(ren) and the accused respectively had of the nature of the relationship between them (Sutton v R (2015) 47 VR 496, ).
- However, under the previous provisions, it was generally undesirable for judges to expand on the statutory definition of "de-facto spouse" as the statutory definition called for the jury to apply its common sense and experience to evaluate the relationship of the parties and compare it to their understanding of marriage relationships. This allowed the jury to accommodate varied and even conflicting concepts of marriage-like relationships. Providing a list of factors relevant to assessing whether the relationship is marriage-like was thought to risk impermissibly interfering with the jury’s assessment of what makes a relationship marriage-like (Sutton v R (2015) 47 VR 496, . See also King v R (2011) 34 VR 106 at - per Neave JA).
- The factors listed in Relationships Act 2008 s35(2) closely resemble the factors identified by Powell J in D v McA (1986) 11 Fam LR 214 as indicia of a de facto relationship. In R v King (2011) 34 VR 106 at , Bongiorno JA observed in relation to the former incest offences that, depending on the issues, some of the D v McA factors may be of greater or lesser importance. In contrast, Neave JA stated that directions would be over-complicated if judges routinely had to refer to all of the D v McA factors. Later, in Sutton v R (2015) 47 VR 496 at -, Maxwell P and Redlich JA observed that evidence about the relationship between the accused and the partner’s children will likely to carry more weight relative to other factors than it would in statutory regimes concerned with distribution of property.
- In cases where the jury must determine whether two people were in a domestic relationship, judges should seek submissions on what directions are necessary in relation to the definition of domestic relationship in Crimes Act 1958 s35. Parties should identify whether all the Relationship Act 2008 s35(2) considerations are relevant, or whether the selection of factors depends on the fact that the question arises in the context of a prosecution for incest. If the selection of factors is limited, then, consistent with R v King, and Sutton v R, the jury will likely need to focus on the degree of mutual commitment to a shared life (s35(2)(a)), the duration of the relationship (s35(2)(b)) and the care and support of children (s35(2)(g)).
Knowledge of the family relationship
- The third common element is that the accused knows that they are related to the complainant in the way alleged (Crimes Act 1958 ss 50C, 50D, 50E, 50F).
- 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 (Crimes Act 1958 s50B).
- However, there must be evidence of the particular prescribed relationship before the presumption in s50B can be engaged. Evidence of a reputed relationship with one person which provides a basis for inferring another relationship may not be sufficient. For example, in R v Umanski  VR 242 at 249, the Court held that admissions by A and B that they were married (and evidence from other witnesses that A and B were reputed to be married) were not sufficient to establish that A’s daughter, C, was reputed to be B’s step-daughter.
Additional element – Incest against a parent, lineal ancestor or step-parent
- For alleged offences against s50E (incest against a parent, lineal ancestor or step-parent) there is an additional element. The prosecution must prove that the accused was 18 years of age or more (Crimes Act 1958 s50E(1)(b)).
- Where it is necessary to prove that particular parties were married, there must be strict proof of the marriage. It is not sufficient to rely solely on admissions of the accused as to the marriage, or on evidence of co-habitation (R v Umanski  VR 242).
Medical or hygienic purposes
- For all incest offences, the accused does not commit the offence if the accused’s conduct occurs in the course of a procedure carried out in good faith for medical or hygienic purposes (Crimes Act 1958 s50G).
Non consent of accused
- For all incest offences, the accused does not commit the offence if he or she did not consent to the conduct constituting the offence (Crimes Act 1958 s50H).
- Where this issue is raised on the evidence, the prosecution bears the onus of rebutting the defence.
- This defence of consent replaces the previous defence of ‘compulsion’ (see Crimes Act 1958 s44(6) and (6A) as in force before 1 July 2017).
Exception for alleged incest against a step-child
- In proceedings for a charge against s50D (incest against a step-child), the accused does not commit the offence if at the time of the alleged offence:
- The complainant is 18 years of age or more;
- The accused did not engage in sexual activity with the complainant when the complainant was under 18 years of age; and
- The complainant has not at any time been under the accused’s care, supervision or authority (Crimes Act 1958 s50I).
- The term ‘care, supervision or authority’ is defined in Crimes Act 1958 s37. For information on this phrase, see Sexual Penetration of a 16 or 17 Year Old Child (From 1/7/17).
- Where this issue is raised on the evidence, the prosecution bears the onus of rebutting the defence.
Exceptions for alleged incest against parent, lineal ancestor or step-parent
- In proceedings for a charge against s50E (incest against a parent, lineal ancestor or step-parent), the accused does not commit the offence if at the time of the alleged offence:
- The complainant is the accused’s step-parent; and
- The accused has not at any time been under the complainant’s care, supervision or authority (Crimes Act 1958 s50J(1)).
- The Crimes Act 1958 also provides that s50E does not apply if the complainant had engaged in sexual activity with the accused when the accused was under 18 years of age (Crimes Act 1958 s50J(2)).
- The effect of s50J(2) is that continued sexual activity between a child and a parent, lineal ancestor or step-parent before and after the child turns 18 is not an offence by the child.
Consent of complainant not a defence
- Consent of the complainant is not a defence to a charge of incest (s50K).
Other Relevant Matters
- Depending on the circumstances of the case, the trial judge may need to consider the following issues in relation to incest cases:
- Criminally concerned witness warnings (but see R v Ware (10/3/1994 SC Vic), in which Coldrey J held, after a review of the authorities, that it was not appropriate to class a complainant as an accomplice in an incest case);
- Possible exemptions from being compelled to give evidence in a case involving certain family members (Evidence Act 2008 s18);
- The privilege against self-incrimination.
- In proceedings for a charge of incest, it is not appropriate for the prosecutor, the judge or a witness to describe the conduct as "rape". While it may not be practical to prevent a witness from using that term, the prosecutor and the judge should not adopt the same practice. Where a witness has used the term "rape" to describe sexual penetration, the judge should make clear to the jury that the term has been used inaccurately, that the charge is one of incest, not rape and that the jury should not be distracted by the use of that word (see Packard v R  VSCA 45 at - per Beach JA and Beale AJA,  per Priest JA).