OVERVIEW
Understanding the offence of incest
- Summary of Statutory Framework (Sections 47 to 51): Sections 47 to 51 of the Crimes Ordinance contain the statutory framework for incest, including the principal offences, attempts and procedural provisions.
- The Offence: Sections 47 and 48 prohibit sexual intercourse between the male and female close blood relatives expressly specified by the Ordinance. The current provisions do not extend generally to adoptive family members. The offence may be committed even where both parties are consenting adults.
- Irrelevance of Consent: Consent is not a defence to incest. Liability is based on the prohibited family relationship, the intercourse and the knowledge required by the applicable provision.
- Aggravated Offences: Under section 47, the general maximum sentence is 14 years' imprisonment. Where the female is aged 13 to 15, the maximum increases to 20 years. Where she is under 13, the maximum is life imprisonment.
STATUTORY PROVISIONS
Key Statutory Provisions
The relevant part of the current statutory provision states:
Section 47 — Incest by a man
A man commits the offence if he has sexual intercourse with a woman whom he knows to be his granddaughter, daughter, sister or mother. For this Part, “sister” includes a half-sister. The woman's consent is not a defence.
Section 48 — Incest by a woman
A woman aged 16 or over commits the offence if, with consent, she permits a man whom she knows to be her grandfather, father, brother or son to have sexual intercourse with her. For this Part, “brother” includes a half-brother.
Section 49 — Test of relationship
The relationship may be traced through lawful or unlawful wedlock, and “brother” and “sister” include half-brother and half-sister. The current statutory incest provisions do not generally extend these relationships to adopted persons.
Section 51 — Consent to prosecute
A prosecution for an offence under section 47 or 48 may not be instituted without the consent of the Secretary for Justice.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.