The offence of incest was introduced into the Crimes Act 1900 (NSW) (‘the Act’) in 1924, as section 78A of that Act.
Prior to this, incest was considered an ecclesiastical misdeed rather than a criminal offence in our state, and has even been seen as an “expression of the strength and status of the social purity movement”.
Incest has been defined as “consensual sexual activity between members of a family within certain specified degrees of “consanguinity” above the age of consent.”
It was criminalised as community attitudes shifted towards viewing sexual relations between close family members as immoral and indeed abhorrent, and the applicable laws are now embodied in sections 78A, 78B, 78C and 78F of the Act.
Incest laws in NSW
Section 78A prescribes a maximum penalty of eight years’ imprisonment for anyone who ‘has sexual intercourse with a close family member who is of or above the age of 16 years’.
A ‘close family member’ is defined as a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent or grandchild, being such a family member from birth.
‘Sexual intercourse’ is defined by section 61H of the Act as:
- sexual connection occasioned by the penetration to any extent of the genitalia of a female person or the anus of any person by any part of the body of another person, or any object manipulated by another person, except where the penetration is carried out for proper medical purposes, or
- sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
- cunnilingus, or
- the continuation of any of the above.
Section 78B sets down a maximum penalty of two years in prison for attempting to commit incest.
Section 78C(1) contains a statutory defence to the charge where the defendant ‘did not know that the person with whom the offence is alleged to have been committed was related to him or her, as alleged.’
In addition to this statutory defence, an accused person may be able to rely on other legal defences such as duress (being forced to commit the act) or even automatism (an involuntary act) to defeat the charge.
Section 78C(2) makes it clear that consent is not a defence to the charge.
Finally, section 78F provides that a prosecution for incest, or attempted incest, cannot be commenced without the approval of the NSW Attorney-General.
According to the NSW Judicial Commission, a total of seven people were sentenced for incest up until September 2018 in our state, all of which were under section 78A. All cases finalised in the District Court of NSW.
Five of those people were sentenced to imprisonment, and two to good behaviour bonds with criminal convictions.
The ‘mean’ full term of imprisonment was around four and a half years, and the mean non-parole period was around three years.
NSW judge under fire for remarks about incest
NSW District Court Judge Garry Neilson attracted criticism in 2014 when he refused to allow “tendency evidence” in a case concerning a 58-year-old man known only as ‘MRM’, who allegedly sexually assaulted his sister several times in 1981, when she was aged 17 or 18.
Tendency evidence is that which shows a pattern of behaviour – and therefore indicates that the defendant has a tendency to act in a particular manner or has a particular state of mind.
Tendency evidence is not admissible unless it has ‘significant probative value’.
In the MRM case, the tendency evidence which was ruled inadmissible concerned the defendant’s decision to plead guilty to sexual assault charges involving the same complainant several years previously, when she was aged 10 or 11.
The prosecution argued that this showed that the defendant had a tendency to have a sexual interest in his sister, and to have sexual relations with her.
But Judge Neilson disallowed the evidence, saying that the sexual conduct that was the subject of the present trial occurred in a different context to that which occurred when the complainant was a child.
According to the Judge, the two incidents differed due to the difference in the complainant’s age at the time of each offence, and the fact that the later alleged offence occurred after she had had other sexual relationships with men and had given birth to a child.
In handing down his decision, the Judge commented that ‘a jury may find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men, and was now ‘available,’ not having [a] a sexual partner.’
The Judge then compared incest to homosexuality, making the point that homosexuality was once considered ‘unnatural’ and ‘taboo’ – implying that incest may one day become as widely accepted as homosexuality.
He then went on to concede that incest was currently criminalised because of the potential for it to result in genetic abnormalities in children, but then stated that these risks could be reduced through contraception and abortion.
He apologised for his comments in the wake of the public outcry.