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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 there exists a relevant relationship between them. The offence includes an array of relationships, such as step relationships, and even relationships arising because of de facto relationships 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 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.

 

  1. 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 or because of a foster relationship or a legal arrangement.

 

  1. The defendant knew their was a relationship, or type of relationship referred above at 2.

 

MAXIMUM PENALTY

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

 

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 at the time of the alleged offence the defendant was acting under coercion of the complainant.

 

  1. 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.

 

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

 

  1. The defendant was not the person who had carnal knowledge with the complainant.

 

  1. Insanity.

 

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

 

WHAT TO DO IF YOU ARE CHARGED WITH INCEST

If police charge you with incest, you are in deep trouble. As you will have read, the consequences for you are serious. You need the experience of the Criminal Lawyers Brisbane Group in your corner fighting for you. Our criminal lawyers are highly trained and experienced in GBH.

If you or someone you know are facing a charge of GBH, contact our Brisbane Criminal Lawyers now on (07) 3153 6215 for a free no-obligation chat.

 

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