Incest Charges in Victoria
Incest offences in Victoria are serious charges that carry significant penalties. There are four separate offences under the Crimes Act 1958 (Vic), each applying to a different family relationship. This guide explains what those offences are, what the prosecution needs to prove, and what defences may be available.
If you are facing a charge of this kind, it is important to get experienced legal advice as early as possible.
The law
The incest offences are contained in sections 50C to 50F of the Crimes Act 1958 (Vic). The current offences came into force on 1 July 2017. If the alleged conduct occurred before that date, an earlier version of the law applies.
The four offences are:
- Sexual penetration of a child or lineal descendant (section 50C)
- Sexual penetration of a step-child (section 50D)
- Sexual penetration of a parent, lineal ancestor or step-parent (section 50E)
- Sexual penetration of a sibling or half-sibling (section 50F)
What does the prosecution need to prove?
All four offences share three common elements that the prosecution must prove beyond reasonable doubt:
1. Intentional sexual penetration
The prosecution must prove that you intentionally sexually penetrated the complainant, or intentionally caused or allowed the complainant to sexually penetrate you. The act must have been willed and consciously performed. An accidental act does not satisfy this element.
2. The prescribed family relationship
The prosecution must prove that you and the complainant are in one of the family relationships covered by the relevant charge. These relationships include biological, adoptive and step-relationships, as well as relationships arising from the Status of Children Act 1974. The term ‘step-parent’ covers the spouse or domestic partner of a person’s parent. ‘Domestic partner’ is broadly defined and includes people who are not married but who are living together as a couple on a genuine domestic basis, regardless of gender.
Where the family relationship is in dispute, the law presumes that people who are reputed to be related in a particular way are in fact related in that way. This presumption can be rebutted by evidence to the contrary.
3. Knowledge of the relationship
The prosecution must prove that you knew you were related to the complainant in the way alleged. Again, there is a presumption of knowledge which can be rebutted by evidence to the contrary.
Additional element for section 50E only:
Where the charge is sexual penetration of a parent, lineal ancestor or step-parent, the prosecution must also prove that you were 18 years of age or older at the time.
What are the defences?
The following defences are available to all four incest offences:
- The sexual penetration did not occur
- Medical or hygienic purposes. You do not commit an incest offence if your conduct occurred in the course of a procedure carried out in good faith for medical or hygienic purposes.
- You did not consent. You do not commit an incest offence if you did not consent to the conduct. Where this defence is raised, the prosecution must disprove it.
- Insufficient evidence or improperly obtained evidence: The prosecution must prove each element beyond reasonable doubt. In cases of this kind, questions of evidence — including the reliability of witness accounts and the circumstances in which evidence was obtained — can be critical. These are technical matters that require experienced legal advice.
There are also specific exceptions that apply to particular charges:
- Step-child (section 50D) — adult complainant exception. You do not commit this offence if, at the time of the alleged conduct, the complainant was 18 or older, you had not engaged in sexual activity with the complainant while they were under 18, and the complainant had never been under your care, supervision or authority.
- Parent, lineal ancestor or step-parent (section 50E) — step-parent exception. You do not commit this offence if the complainant is your step-parent and you have never been under the complainant’s care, supervision or authority.
Important: The consent of the complainant is not a defence to any incest charge. Even if the other person agreed to the conduct, that is not a legal defence.
How serious are these charges?
Incest offences are serious indictable offences heard in the County Court of Victoria. They carry significant maximum penalties. The actual sentence imposed will depend on a wide range of factors, including the nature and circumstances of the alleged conduct, the relationship between the parties, whether the complainant was a child at the time, your personal history, and whether you plead guilty.
Given the gravity of these charges, it is critical to obtain experienced legal representation as early as possible. The decisions you make in the early stages of a matter, including whether to participate in a police interview, can have a significant effect on the outcome.
What should you do if you have been charged?
If you have been charged or approached by police in connection with an allegation of this kind:
- Contact a criminal defence lawyer before participating in any interview or making any statement.
- Do not contact the complainant or any potential witnesses.
- Do not discuss the matter with anyone other than your lawyer.
Angus Cameron and Partners has significant experience defending serious sexual offence charges in Victoria. We can advise you on the strength of the case against you, the defences available, and how best to approach your matter.
Frequently asked questions
Does it matter if the other person consented?
No. The consent of the complainant is specifically excluded as a defence to any incest charge under Victorian law. The focus of the law is on the nature of the family relationship, not whether the conduct was consensual.
What counts as a domestic partnership for the purposes of step-relationships?
A domestic partner is broadly defined and includes people who are living together as a couple on a genuine domestic basis, regardless of whether they are married and regardless of gender. In determining whether a domestic partnership exists, courts look at factors including the degree of mutual commitment to a shared life, the duration of the relationship, financial interdependence, and the care and support of children.
What if I did not know we were related?
Knowledge of the family relationship is an element the prosecution must prove. If you genuinely did not know you were related to the complainant in the way alleged, that may be relevant to your defence. The law presumes you knew about the relationship, but that presumption can be rebutted by evidence.
Can I be charged if the conduct occurred before 1 July 2017?
Yes, but the earlier version of the law would apply. The elements and definitions are different under the pre-2017 provisions and you should seek specific legal advice about the law applicable to the time of the alleged conduct.
What court will my case be heard in?
Incest charges are indictable offences heard in the County Court of Victoria. The case will generally go through a committal hearing in the Magistrates’ Court before being committed to the higher court for trial or plea.