Warning: The following article has content and legal information about sexual offences under the Crimes Act 1900. The content may cause distress or trigger trauma to some readers. We understand that this topic can evoke strong emotions and may not be suitable for everyone. Our only intention in this article is to provide legal information and helpful tips. Please read with caution.
This article will outline incest under the Crimes Act and different related provisions. Incest is a deeply taboo subject that elicits strong emotions and raises essential legal and ethical questions. In Australia, as in many other countries, incest is considered a criminal offence. Incest is commonly defined as sexual activity between close relatives, such as:
- Siblings;
- Parents; and
- Children
It is important to note that the definition of incest may vary across jurisdictions. Moreover, cultural and religious practices can influence societal perceptions. In this article, we will outline incest under the Migration Act, and its relevance in criminal law matters. Please note that Sections 78D and 78G-S have been repealed in the Crimes Act.
Section 78A and 78B: Definition of Incest Under the Crimes Act
Section 78A refers to the specific provisions of the law regarding incest in relation to sexual intercourse between close family members who are 16 years of age or older. Let’s break down the meaning of each subsection:
(1) A person is found guilty of incest if they have sexual intercourse with a family member who is 16 years old and above. The punishment for this offence is imprisonment for a period of 8 years.
(1A) When can a person not commit an offence under this section? A person won’t commit incest if:
- The person is 16 years old and under the age of 18 years at the time of the alleged offence; and
- The other person to whom the charge relates is the person’s parent or grandparent.
(2) For the purposes of Section 78A incest under the Crimes Act, a “close family member” is a:
- Parent
- Son
- Daughter
- Sibling (including a half-brother or half-sister)
- Grandparent or grandchild
Section 78B states that any person who attempts to commit incest under the Crimes Act is liable for 2 years of imprisonment.
Section 78C: Defences Against Incest Under the Crimes Act
The Section 78C provides information about defences against incest charges under Sections 78A or 78B. A person who committed an offence under these sections has a valid defence if they can prove that:
- They were unaware of the alleged familial relationship with the person involved in the offence.
- The argument that the person who committed the conduct gave consent is not a legitimate defence. Even if the other person willingly participated in the act, it does not absolve the accused of their responsibility or negate the offence.
Consent refers to the voluntary and enthusiastic agreement given by all participants involved. It is an ongoing process of communication and mutual understanding where each person involved freely and willingly agrees to engage in sexual acts.
Section 78E: Rape or Attempt–Verdict of Incest or Attempt
Section 78E of incest under the Crimes Act is renumbered as Clause 54 in Schedule 11 of the Act. Clause 54 states that if the jury is not convinced of the original charge, they have the power to acquit the accused. In such cases, if evidence of an incest offence emerges, the jury can find the accused guilty.
Consequently, the accused will face punishment based on the relevant incest law. This allows for a shift in the charges, focusing on the offence related to incest.
Section 78F: Sanction of Attorney-General
Additionally, Section 78F of incest under the Crimes Act states that the Attorney-General must grant permission or authorisation for the prosecution to proceed with incest charges. The Attorney General is a government official who holds a high-ranking position within the legal system of a country. Moreover, the specific role and responsibilities of the Attorney General can vary depending on the jurisdiction.
Section 78T: Limitations
Section 78T in relation to incest under the Crimes Act is renumbered as Clause 55 in Schedule 11 of the Act. Clause 55 states that it’s not possible to initiate the following without the sanction or approval of the Attorney General:
- Prosecution for certain offences under sections 78H, 78I, 78K, 78L, 78M, 78N, 78O, or 78Q; and
- Offences involving attempts, conspiracy, or incitement related to sections 78H, 78I, 78K, 78L, 78M, 78N, 78O, or 78Q
Tips for Reporting Incest Cases
Here are some useful tips when reporting incest cases:
Step 1: Ensure Personal Safety and Well-being
If you or someone you know is in immediate danger or experiencing harm, prioritise personal safety above all else. Moreover, remove yourself or the affected individual from the abusive situation and seek a safe environment.
Step 2: Seek Support and Counseling
Reach out to specialised organisations and helplines that offer assistance to survivors of incest. Furthermore, these resources provide confidential support, counselling, and guidance throughout the healing process. They can also help you understand your rights and options moving forward.
Step 3: Document and Preserve Evidence
If possible, gather any available evidence related to the incestuous acts. This may include written communication, photographs, or any other tangible evidence that can support your case. Preserve this evidence in a safe and secure manner.
Step 4: Contact Law Enforcement
Report the incestuous incidents to your local law enforcement agency. Importantly, provide them with as much information and evidence as possible. It is essential to emphasise the urgency and seriousness of the situation. Remember that reporting can be done anonymously if preferred.
Step 5: Seek Legal Advice
Consult with a lawyer who specialises in family and criminal law. They can guide you through the legal process, explain your rights, and help you understand the potential outcomes. Furthermore, a lawyer will advocate for your best interests and provide the necessary legal support.
How Can We Help With Family and Criminal Law Matters?
Incest is a serious criminal offence and requires serious attention from within the Australian legal system. Additionally, family law offences can also stem from incest cases. This may include domestic violence and child abuse. We at JB Solicitors have experienced family and criminal lawyers that can help:
- Understand a victim’s or an alleged offender’s rights, options, and obligations
- Gather documentation and evidence
- Represent clients at court and protect their interests
- Craft effective legal strategies
Contact us today if you need more information about incest under the Crimes Act.
