When most people think of offences relating to sex between family members, they assume it is referring to offences in which an offender is an adult having sexual relations with a child under the age of consent or at least under the age of 18 years old.
However, laws against incest in Australia are much broader, encompassing sexual relations between family members including consenting adults also known as family incest.
The following outlines the offence of incest across Australia, noting relevant penalties as well as possible defences under law.
For more on this topic, get in touch with one of our criminal lawyers in Sydney for tailored advice.
Incest Meaning | What Is Incest?
Criminal laws against incest in Australia generally refer to sexual relations with close family members. This can encompass a parent, son, daughter, sibling (including half-siblings), grandparent or grandchild.
Most offences apply to both biological relatives and situations where a person becomes a parent or child as a result of legal adoption. In some circumstances an offence will also apply to step-parents, step-children and step-siblings.
Consent is not an available defence for most incest offences in Australia.
Why is Incest a Crime?
Incest is a crime for the following reasons:
- Incest creates the risk of genetic disorders and birth defects,
- Incest arises in the context of family relationships and an abuse of trust,
- It is unaccepted by community attitudes and values.
Incest Crime in New South Wales
Under section 78A of the Crimes Act 1900 (NSW), it is an offence to engage in sexual intercourse with a close family member aged 16 years or older. This offence carries a maximum penalty of 8 years imprisonment.
The offence only applies to family members "from birth" and does not include step-relatives.
An exception exists for this offence under section 1A of the Act where the person committing the act is between 16 and 18 years old and the other person involved is their parent or grandparent. Moreover, section 78C of the Act outlines a formal defence for the offence if the accused did not know the person they engaged with was a close family member at the time.
Is Incest Legal in Victoria?
There are four separate incest offences under the Crimes Act 1958 (Vic), encompassing sexual penetration of a child, of a step-child, of a parent or step-parent as well as a sibling or half-sibling.
Under section 50C of the Act it is an offence for a person (A) to intentionally engage in sexual penetration with another person (B) who is A's child or lineal descendant, knowing that B is their child or lineal descendant. This offence carries a maximum penalty of 25 years imprisonment.
Under section 50D of the Act it is an offence for a person (A) to intentionally engage in sexual penetration with another person (B) who is the child or lineal descendant of A's spouse or domestic partner (a "step-child"), knowing that B holds this relationship. This offence carries a maximum penalty of 25 years imprisonment.
An exception exists for this offence under section 50I of the Act if:
- B is 18 years or older; and
- A did not engage in sexual activity with B when B was under 18; and
- B was never under A's care, supervision, or authority.
A further offence is outlined section 50E of the Act, if a person (A), who is aged 18 years or older, intentionally engages in sexual penetration with another person (B) who is A's parent, lineal ancestor, or step-parent, knowing this relationship. This offence carries a maximum penalty of 5 years imprisonment.
An exception exists for this offence under section 50J of the Act if B is A's step-parent and A was never under B's care, supervision, or authority, or if B engaged in sexual activity with A when A was under 18 years old.
Finally, under section 50F of the Act, it is an offence for a person (A) to intentionally engage in sexual penetration with another person (B) who is A's sibling or half-sibling, knowing this relationship. This offence carries a maximum penalty of 5 years imprisonment.
Incest Law in the Australian Capital Territory
There are three separate incest offences outlined under section 62 of the Crimes Act 1900 (ACT), two of which deal with offending against children, including a child under the age of 10 years old (section 62(1)) and a child under 16 years old (section 62(2)).
However, a third offence outlined under section 62(3) of the Act applies where a person engages in sexual intercourse with another person who is aged 16 years or older (over the age of consent) and who is known to be their lineal ancestor, descendant, or sibling (including half-siblings). This offence carries a maximum penalty of 10 years imprisonment.
A defence applies to this offence if a person was coerced into committing the sexual act by the alleged victim.
Is Incest Illegal in Tasmania?
It is an offence under section 133(1) of the Criminal Code Act 1924 (Tas) (the Code), for a person to engage in sexual intercourse with another person knowing that the other person is their lineal ancestor, lineal descendant, or sibling (including half-siblings).
A further offence is outlined under section 133(2) of the Code where a person aged 16 years or older to permits another person to have sexual intercourse with them, knowing that the other person is their lineal ancestor, lineal descendant, or sibling (including half-siblings).
Both of the offences above carry the maximum penalty of 21 years imprisonment.
Is Incest Against the Law in Queensland?
It is an offence under section 22(1) of the Criminal Code 1899 (Qld) (the Code) for a person to engage in penile intercourse with another person whom they know to be their offspring, lineal descendant, sibling, parent, grandparent, uncle, aunt, nephew, or niece. The maximum penalty for this offence is life imprisonment.
A further offence also exists under section 222(2) of the Code if a person attempts to commit the crime above. This offence carries a maximum penalty of 10 years imprisonment.
Offences under the Code encompasses broader relationships than other jurisdictions encompassing half, adoptive and step relationships as well as foster relationship and relationships established under cultural recognition orders.
An exception exists under section 222(8) of the Code for persons who are lawfully married or, if both are adults, are entitled to be lawfully married. Further a formal defence exists under section 222(4) of the Code if the accused can prove that they were acting under the coercion of the other person at the time of the act or attempted act.
Is Incest a Crime in South Australia?
It is an offence under section 72(1) of the Criminal Law Consolidation Act 1935 (SA) for a person to engage in sexual intercourse with a close family member. The maximum penalty for this offence is 10 years imprisonment.
This offence does not apply to family members related only by marriage or adoption.
Section 72(2) provides a defence if the accused can prove that they did not know, and could not reasonably have been expected to know, that the person was a close family member.
The Offence of Incest in Northern Territory
Under section 208MA of the Criminal Code Act 1983 (NT) is an offence for a person to intentionally engage in sexual intercourse with a close family member, and the person is aware of this relationship. The maximum penalty for this offence is 14 years imprisonment.
This offence does not apply to family members related only by marriage or adoption.
A person is not criminally responsible for incest under section 208MA if they were compelled to engage in the act by a close family member through force or other means.
The Offence of Incest in Western Australia
A number of offences are outlined under section 329 of the Criminal Code Compilation Act 1913 (WA) (the Code) for a person who engages in various sexual activities with a child or adult whom they know is their "lineal relative" or "de facto child".
The term "lineal relative" includes ancestors, descendants, and siblings, whether related by blood, half-blood, or through legal recognition (e.g., adoption). A "de facto child" refers to a step-child or a child of the offender's de facto partner.
Under section 329(2) of the Code an offence is committed if a person engages in sexual penetration with a child who is a lineal relative or de facto child. The maximum penalty for this offence is 20 years imprisonment if the child is under 16 years old, and 10 years imprisonment if the child is over 16 years old.
Section 329(7) and Section 329(8) of the Code outlines offences of sexual penetration of an adult lineal relative, with mutual consent. This offence carries a maximum penalty of 3 years imprisonment.
It is an offence under section 329(3) of the Code if a person procures, incites, or encourages a child who the offender knows is his or her lineal relative or a de facto child to engage in sexual behaviour. Section 329(5) outlines a similar act applying to a person who procures, incites, or encourages a child to undertake an 'indecent act'.
The maximum penalties for the above offences are 10 years imprisonment if the child is under the age of 16 years old, and 5 years imprisonment if the child is over 16 years old.
It is an offence under section 329(4) of the Code if a person indecently deals with a child who the offender knows is his or her lineal relative or a de facto child. Finally, it is an offence under section 329(6) of the Code if a person indecently records a child who the offender knows is his or her lineal relative or a de facto child.
The maximum penalties for the above offences are 10 years imprisonment if the child is under the age of 16 years old, and 5 years imprisonment if the child is over 16 years old.
For the above offences it is a rebuttable presumption that the accused knew of their relationship to the other person. A defence applies if the accused did not consent to the conduct, including where they participated due to fear or coercion.
Is it Legal to Marry Your First Cousin in Australia?
It is not illegal to marry your first cousin in Australia. The criminal law in Australia does not criminalise the conduct of marrying a first cousin. However, you cannot marry a brother, sister, mother or father. The Marriage Act of 1961 prohibits the marriage of parties within a prohibited relationship including a person and an ancestor or descendant of the person, or between a brother and sister. It is also illegal to marry a halfblooded brother or sister.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.