The law and sexual offences against adults in Australia

ACSSA Issues No. 4 – June 2005

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Incest provisions

Every state and territory has legislation which criminalises sexual intercourse between close relatives. Penetrative sexual assaults committed by one family member against another family member are sometimes charged and prosecuted as "incest" rather than as "rape" or a similar offence. Usually this is done because, in contrast to "sexual assault" or "rape", the offence of "incest" does not require the prosecution to prove the victim-complainant's non-consent nor the accused's awareness of non-consent. Most incest offences make all sexual intercourse between close relatives criminal, whether it is consensual or not. As a result, a conviction for "incest" requires proof of a smaller number of elements than a conviction for "sexual assault" or "rape", where consent is a complete defence. In practice, the requirement of proving beyond reasonable doubt that the complainant did not consent can result in lengthy cross-examination of the victim-complainant in trials for rape and sexual assault offences. Unfortunately, as Taylor's (2004) research shows, incest trials often also involve lengthy crossexamination of the victim-complainant.

The fact that the crime of "incest" applies both to consensual and non-consensual sexual acts can make it particularly inappropriate. Some people who have been raped or sexually assaulted by close relatives feel that a crime which fails to distinguish between consensual and non-consensual sexual contact is inappropriate and offensive. Some have suggested that an offence called "intrafamilial rape" or "intrafamilial sexual assault" would better recognise the non-consensual nature of their experiences (Taylor 2004: 298).

Caroline Taylor's (2004) research suggests that "rape" has clear associations with "force and violation", while "incest" is seen as a less serious offence and associated with intense social stigma, including a sense that the victim-complainant is in some way culpable. She documents this association not only among victim-complainants, but also among defence counsel and judge.34 In some incest trials, defence counsel insist on a clear distinction between incest and rape, with the clear implication that incest is not rape, a perception that fails to recognise the non-consensual nature of sexual abuse within families (Taylor 2004; VLRC 2004). Western Australian law now refers to "sexual offences by relatives" while every other jurisdiction still has an offence called "incest". The Victorian Law Reform Commission has recommended that the name of this offence should be changed to reflect the changing focus away from prohibiting sexual intercourse between close relatives and toward "protecting children and young people from exploitation and abuse within the family" (VLRC 2004: 442).

The very systems that Australia has implemented to respond to criminal conduct are still judged inappropriate or unusable by many people who are sexually assaulted yet never report their experiences to the police.

The range of family relationships which fall within incest offences varies widely across the country. South Australian law addresses the narrowest range of relationships. It deals only with blood relations, and criminalises sexual intercourse between parent and child and between siblings. Other jurisdictions, QLD and VIC in particular, take a broader view, recognising family relationships rather than blood relationships as central to the behaviour which should be considered incest. As a result, de facto relationships, half-relationships, step-relationships and relationships through adoption and fostering are included in incest offences. QLD also extends the reach of incest legislation further into blood relationships, criminalising sexual intercourse between people related as aunt, uncle, niece or nephew.

Some jurisdictions treat crimes against people under the age of consent as a single group of offences. Under this kind of system, the law treats relatives who sexually abuse children and young people within their families in the same way as it treats strangers who perpetrate sexual abuse. Sexual intercourse between close relatives is only treated as a separate offence where the victim-complainant is over the age of consent.

In some jurisdictions, "incest" provisions can apply both to the person who perpetrates the abuse and to the person who is abused. Although some jurisdictions explicitly provide a defence to incest where a person is coerced into sexual intercourse with a close relative, others do not. This raises the possibility that a person who has been sexually assaulted by a relative could be charged with incest themselves: a threat some perpetrators use to silence victim-complainants (Taylor 2004). Even where it is available, a defence of coercion can only be used once the coerced person has been charged with the offence.

The Victorian Law Reform Commission believes that: "Although it is not common for the person who reports the abuse to be charged as a co-offender . . . the possibility of charge may act as a disincentive for an adult victim to report the offence" (VLRC 2004: 443). Further, the Commission suggests that a defence of "coercion" may be poorly adapted to addressing "the exploitative power dynamics that can exist in families" (VLRC 2004: 443).

For more detailed information about the law of incest in each jurisdiction, please refer to the Table on pp. 32-41.

Footnote

34 See also Duncan (1994) and Mitra (1987).