INCEST QLD

The criminal offence of incest in Queensland is not limited to sexual offences involving children. Adults who consent to sexual intercourse can be found guilty of incest if a relevant relationship exists between them. The offence includes an array of relationships, such as step relationships, and even those arising because of de facto or foster relationships. While the offence can arise between consenting adults, it often comes to the attention of police when a child is involved.

 

WHAT THE LAW SAYS

 

The offence of incest in Queensland is contained in Section 222 of the Criminal Code, which says:

 

(1) Any person who— 

(a) has carnal knowledge with or of the person’s offspring or other lineal descendant, or sibling, parent, grandparent, uncle, aunt, nephew or niece; and 

(b) knows that the other person bears that relationship to him or her, or some relationship of that type to him or her; 

commits a crime.

Maximum penalty—imprisonment for life.

 

(2) Any person who attempts to commit the crime of incest is liable to imprisonment for 10 years. 

(3) It is immaterial that the act or attempted act of carnal knowledge happened with the consent of either person. 

(4) It is a defence to a charge under this section to prove that the accused person was, at the time when the act or attempted act of carnal knowledge happened, acting under the coercion of the other person. 

(5) A reference in this section to an offspring or other lineal descendant, or a sibling or a parent includes a relationship of that type that is a half, adoptive or step relationship. 

(5A) For subsection 5, a reference to an adoptive relationship includes a relationship of that type that came into existence as a result of the making of an adoption order under the Adoption Act 2009 regardless of whether the order has been discharged. 

(6) For subsection (5), a reference to a step relationship includes a relationship corresponding to a step relationship arising because of cohabitation in a de facto relationship or because of a foster relationship or a legal arrangement. 

(7) Also, for subsection (5), a reference to a step relationship does not include a step relationship that first arose after the relevant persons became adults. 

(7A) Also, if a parentage order is made under the Surrogacy Act 2010, a reference in this section to an offspring or other lineal descendant, or a sibling or a parent includes a relationship of that type that—

(a) existed before the making of the order; or

(b) came into existence as a result of the making of the order regardless of whether the order has been discharged. 

(7B) Also, if a cultural recognition order is made under the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020, a reference in this section to an offspring or other lineal descendant, or a sibling or a parent includes a relationship of that type that—

(a) existed before the making of the order; or

(b) came into existence as a result of the making of the order regardless of whether the order has been discharged. 

(8) This section does not apply to carnal knowledge between persons who are— 

(a) lawfully married; or

(b) if both persons are adults—entitled to be lawfully married.

 

WHAT THE POLICE MUST PROVE FOR A SEXUAL OFFENCE OFFENCE OF INCEST

 

For the prosecution to be successful, they must prove the following beyond reasonable doubt:

 

1. The defendant had carnal knowledge with or of the complainant. This means the defendant must have, or attempted to insert his penis into the complainant’s genitalia or anus. Penetration of the genitalia or anus to any extent will be sufficient. It does not matter if the defendant ejaculated or not.

 

2. The complainant was the defendant’s offspring or other lineal descendant, or sibling, parent, grandparent, uncle, aunt, nephew or niece.

This includes a relationship with the complainant:

• being half, adoptive or a step relationship; or
• corresponding to a step relationship arising because of cohabitation in a de facto relationship, a foster relationship or a legal arrangement.

 

3. The defendant knew there was a relationship, or type of relationship referred to above at 2.

 

WHAT IS THE PENALTY FOR INCEST IN QLD?

 

The maximum penalty for a person convicted of incest is Life Imprisonment.

 

To give you an idea of the penalties the Courts have sentenced persons to, we have summarised some cases from the Queensland Court of Appeal. These cases are only examples. Even if your case is similar to any below, you will still receive a different penalty. A wide variety of factors go into the mix when a Court decides on the penalty they will sentence a person to.

 

R v SDH [2019] QCA 134

 

The applicant went to trial in the District Court and was found guilty of 3 counts of incest. The applicant was sentenced to 6 years imprisonment on each count and was eligible to apply for parole after serving three years in prison.

 

The applicant appealed his conviction and sentence to the Queensland Court of Appeal.

 

The applicant was between 57 and 61 years of age. He had a criminal history, which was dated and did not include any entries for sexual offences.

 

The complainant was the applicant’s step-child, and she was between 14 and 17 years of age at the time of the offences.

 

The applicant disclosed to a friend he had sexual intercourse with the complainant on two occasions. He also disclosed this to his wife in a letter he had sexual intercourse with the complainant three times.

 

The complainant did not even give evidence at the trial.

 

The applicant did not dispute having sexual intercourse with the complainant three times. The applicant argued the complainant was more than 18 years of age and she had coerced him.

The Court of Appeal rejected the applicant’s appeal. The Court ruled the sentence was not manifestly excessive and upheld the sentence of 6 years imprisonment for each offence.

 

 

 

R v NJ [2008] QCA 331

 

The applicant pleaded guilty to 1 count of incest and was sentenced to 5 years imprisonment to be suspended after he had served one year in prison.

 

The applicant appealed his sentence to the Queensland Court of Appeal because it was manifestly excessive.

 

The complainant was the applicant’s 14-year-old daughter.

 

The applicant was 78 years of age at the time of the sentence. He had no criminal history and suffered from debilitating health issues, including renal and prostate problems, which required him to use a catheter.

 

The applicant and the complainant had been at a swimming hole on the family property at Greenbank with other family members. The other family members had returned to the house, but the applicant and complainant were lagging behind. While the applicant and complainant walked back to the house, he pulled her pants down. The applicant said he wanted to show her something and pulled out his penis. The applicant pushed the complainant to the ground and had sexual intercourse. The applicant ejaculated on the ground and told the complainant not to tell her mother.

 

The offence was historical, as it had occurred more than 33 years before the applicant was prosecuted. The applicant made admissions to the police about his offending.

 

The Court of Appeal reduced the applicant’s sentence to four years imprisonment, suspended after he had served six months. The Court reduced the sentence because they found the sentencing Judge had referred to the delay as being an aggravating feature. The Court said the delay was a significant mitigating feature because it showed the applicant had rehabilitated (in that he had not re-offended). The Court reduced the suspension of the sentence to 6 months because of the applicant’s health issues.

 

WHICH COURT WILL HEAR THE MATTER

 

A charge of incest must be heard in the District Court.

 

POSSIBLE DEFENCES

 

1. Section 222 (4) specifically provides a defence to the charge if the defendant was acting under coercion of the complainant at the time of the alleged offence.

 

2. Section 222(7) states a defendant who is in a step-relationship with the complainant will not be guilty if the step relationship started after the defendant and complainant became adults.

 

3. The defendant had an honest and reasonable mistaken belief that the complainant was not their offspring or other lineal descendant, sibling, parent, grandparent, uncle, aunt, nephew or niece.

 

4. The defendant did not have carnal knowledge with the complainant.

 

5. Insanity.

 

6. The defendant and complainant are lawfully married or are capable of being lawfully married.

 

Criminal Lawyers Brisbane Group, The Sexual Offence Experts

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