Are there harsher laws now for incest?
Dear Mrs Macaulay,
I heard that they were making amendments to the Incest (Punishment) Act. Is this true? I am very passionate about incest and would like to know what is being done legally to deal with it.
Concerned
Dear Concerned,
I hear your concern and it is one that I share as I am also advocating for the amendment of the Incest (Punishment) Act 1948.
The Child Care and Protection Act 2004 states that in interpreting and administering the provisions of the Act, the best interests of the child is the paramount consideration and it spells out the principles which should guide this process.
Unfortunately though, the only mention of incest is made in the Sixth Schedule of the Act, which amends the maximum penalty in the 1948 Act from 10 years to 16 years. Incest is still retained as a misdemeanour which I don’t think is in the best interest of the child.
I think incest is the most destructive of all sexual crimes. This crime is committed, under the 1948 Act, by a man who sexually violates his granddaughter, daughter, sister or mother, while knowing that they are related.
A woman above 16 years of age also commits incest, if she consents to sexual intercourse with her grandfather, father, brother or son who knows of their relationship. This latter part does not take into account circumstances in which, say, a 17 year-old girl, has been a continuous victim from say the age of 6 years of her grandfather, father or brother.
I think incest should be made a felony but legal reform is a very slow process.
For example, in 1995, the Bill entitled “An Act to amend The Incest (Punishment) Act” was being considered by a Joint Select Committee of Parliament. These considerations were adjourned that year when there was no quorum of the Members of Parliament, and was never re-convened.
The Bill provided for the re-classification of the offence of incest as a felony, with a maximum penalty of life imprisonment (as is the case for rape). It also provided that the offence would be gender neutral when committed by persons aged 16 years and over. These persons the Bill enlarged to include the male persons. I have listed earlier, grandmothers, mothers, brothers, sons, uncles, aunts, nieces and nephews. It also brought into the category persons in step-relationships and those in loco-parentis relationships (those who are not the parents but who are in that position vis-à-vis a child – eg. a guardian or person who has care and custody of a child).
The definition of rape was to be the extended in another Bill which was also being considered by the same Committee at the same sessions. That was the Bill entitled “An Act to amend the Offences against the Person Act.” The Bill sought to amend the sections of the Act dealing with Sexual Offences. It gave an extended meaning to rape beyond merely vaginal penetration by a penis.
It is a great pity that these Bills were not passed at the time. This is not to say that they were perfect, but they were definitely better than the existing laws. These existing laws are still all we have today, in a new century, except for the increase of the maximum sentence of 10 years for incest to 16 years.
Is this enough to demonstrate that the best interests of our children is the paramount consideration when we deal with or consider the law and matters relating to them?
Under the Child Care and Protection Act, prescribed persons must report inter alia, when they know, suspect that a child has been, is being or is likely to be abandoned, neglected or physically or sexually ill-treated. “Sexually ill-treated”, such a soft term, but very wide in meaning. It covers incest. If prescribed persons can be charged if they fail to report an act of incest or their suspicion of it, and may suffer a maximum penalty of $500,000 or both a fine and imprisonment why leave incest as a misdemeanour?
I am sad, frustrated, disappointed and angry. We need to do something about the state of the law, so that incest will be treated with the seriousness it deserves in a civilised society.
Margaret Macaulay is an attorney-at-law and a women’s and children’s advocate.
