Familial Offences
| Jurisdiction | United Kingdom |
| Pages | 159-184 |
| Author | Patricia Lees,Eleanor Laws |
6
FAMILIAL OFFENCES
A. Introduction 6.01
B. Of fences Committed Pre- 1.1.1957 6.07
1. Incest by Males 6.07
2. Incest by Females 6.15
C. Offences Committed between
1.1.1957 and 30.4.2004 6.23
1. Incest by Males 6.23
2. Incest by Females 6.32
D. Offences Committed between
8.9.1977 and 30.4.2004 6.41
1. Incitement of Girls under 16 to have
Incestuous Intercourse 6.41
E. Offences Committed from 1.5.2004
to date 6.48
1. Penetrative Sex with an Adult Relative 6.48
2. Consenting to Penetrative Sex with an
Adult Relative 6.56
3. Sexual Activity with a Child Family
Member 6.64
4. Inciting a Child Family Member to
Engage in Sexual Activity 6.74
A. INTRODUCTION
Before the passing of the Punishment of Incest Act (PIA) 1908, incest was punishable in
England and Ireland only by proceedings in the ecclesiastical courts. e 1908 Act created
the oence of incest, which covered sexual intercourse with an immediate blood relative or
half- sibling. It included oences by males upon females and females permitting with their
consent a male blood relative to have sexual relations with them.
Oences under the SOA 1956 had the same parameters. Again the all- important factor
was blood relationships. Section 10(1) provided for it to be an oence for a man to have
sexual intercourse with a woman whom he knew to be his granddaughter, daughter,
sister or mother. Section 11(1) provided for it to be an oence for a woman aged 16 or
over to permit a man whom she knew to be her grandfather, father, brother or son to
have sexual intercourse with her by her consent. Section 54(1) of the CLA 1977 created
an additional oence for a male to incite a girl under the age of 16 to have incestuous
intercourse.
e SOA 2003 made signicant changes. It created two new gender- neutral oences de-
signed to capture the sexual abuse and exploitation of children within the concept of
the modern ‘family unit’. Se ction 25 creates an oence of sexual activity with a child
family member, whilst s 26 covers inciting a child family member to engage in sexual
activity. e scope of the proscribed sexual activity is extended to any form of touching,
whilst the child ‘family’ member must be under 18. e Act also widens the category
of family who can commit such oences by extending prohibited family relationships
beyond blood relationships to include adoptive relationships, as well as past and pre-
sent step- parents and foster parents. Although not specically mentioned within s 27,
adoptive parents who are in the role of parents who care for and live with the child will
6.01
6.02
6.03
.
be included by virtue of their falling within the ambit of s 27(2). Adoptive parents are
to be treated as being on a par with biological parents. is is in keeping with the inten-
tion of the Sexual Oences Review in making its recommendations for changes to the
law in this area, in stating that ‘the kind of denition linked to bloodlines (alone) . . . was
no longer tenable’.1 Also included are cases where both parties live in the same house-
hold, and cases where a person is regularly involved in caring for, training, supervising
or being in sole charge of the complainant. Excluded will be those related by adoption
where there is no caring role falling within the terms of s 27(4), for example adoptive
siblings over 18 who are not themselves related by blood. ese new familial sex oences
(that is, under ss 25 and 26) include all acts which would have been incest under the old
law where the complainant is/ was under 18.
In addition, the 2003 Act also created two oences to cover the situation where a person
aged 16 or over sexually penetrates a relative aged 18 or over (s 64) or allows that adult rela-
tive to penetrate them (s 65). Penetration means penetration of another person’s vagina or
anus by any part of the defendant’s body or with ‘anything else’, and penetration of another’s
mouth with his penis. In contrast to the familial oences, these oences (under ss 64 and
65) cover a limited circle of blood relationships, that is, parent, child, grandchild, brother,
sister, half- brother, half- sister, uncle, aunt, nephew or niece. For the rst time, uncles and
aunts are included.
It should be borne in mind that the oences under ss 25 and 26 include within their ambit
situations of sexual intercourse between an adult and a child too young to be able to give
true consent, notwithstanding that the protection of such young people from both them-
selves and others must be the very purpose of a legislative minimum age of consent.
In draing indictments generally for a familial oence it is important to remember the
following:
(i) e maximum penalties such oences attract are usually signicantly lower than the
equivalent oence draed outside the familial bracket because they are intended to
reect circumstances where there is consent. Where C is under 13, however, it will
be appropriate to indict the non- familial oence either as the primary count with a
familial oence in the alternative or to simply dra, for example, a count of rape of a
child under 13 (life) rather than sexual activity with a child family member (5 years
where the defendant is under 18 even when the child is under 13). is is the clear
intention of Parliament and underpins the current CPS guidance for indicting such
oences.
(ii) Where possible, counts should relate to a specic incident with each count draed
to make clear what is alleged by giving sucient detail. Where that is impossible be-
cause of, for example, several years of regular and repeated acts, multiple incident
counts should be included in an indictment to both reect the course of conduct and
found a basis for sentencing on the full facts rather than for a single specimen. See
Chapter 1 paras 1.08– 1.17.
1 Setting the Boundaries: Reforming the Law on Sex Oences (Home Oce, 2000), para 5.5.11.
6.04
6.05
6.06
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
