Is incest a crime?

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Is incest a crime?

Yes, incest is a criminal offence in Canada under section 155 of the Criminal Code. In fact, incest is an indictable offence with a maximum sentence of 14 years in prison. When the victim is under 16 years old, incest has a minimum sentence of five years of imprisonment. That makes incest a very serious crime – especially if the victim is under 16 years old and you are in a position of trust or authority over them.

What is considered incest?

Incest is having sexual intercourse with someone whom you know to be, by blood relationship, your parent, child, brother, sister, grandparent, or grandchild. For you to be found guilty of incest, the crown must prove the following beyond a reasonable doubt:

• You intentionally had sexual intercourse with the complainant.
• The complainant is, by blood relationship, your parent, child, brother, sister, grandparent, or grandchild.
• When you had sexual intercourse with the complainant, you knew that they were, by blood relationship, your parent, child, brother, sister, grandparent, or grandchild.

This raises the following questions:

• What is considered “sexual intercourse” for the crime of incest?
• Are halfsiblings or stepsiblings considered brothers or sisters by blood relationship?
• Can sexual intercourse between consenting adults be incest?
• Are there any defences or exceptions to an incest charge?
• How can I defend myself against an incest charge?
• What happens if I am found guilty of incest?

I answer these questions below.

What counts as “sexual intercourse” for the crime of incest?

“Sexual intercourse” is defined by section 4(5) of the Criminal Code as being “complete on penetration to even the slightest degree, notwithstanding that seed is not emitted.” Canada’s courts have clarified that sexual intercourse includes not just vaginal but also anal intercourse, consistent with Parliament’s intent to protect vulnerable persons by criminalizing incest. This is settled law. Courts have suggested that “sexual intercourse” may also include other sexual acts, such as oral sex or digital penetration, but this question remains open.

Is it incest if they are your halfsibling?

Yes, you can be convicted of incest for having sexual intercourse with your halfsibling. Section 155(4) of the Criminal Code tells us that “brother” includes half-brother and “sister” includes half-sister. 

Is it incest if they are your stepsibling?

No, you cannot be convicted of incest for having sexual intercourse with your stepsibling (with whom you have no blood relationship). There appears to be no legal authority to suggest that stepsiblings are in a blood relationship. Of course, sexual acts, including sexual intercourse, can give rise to other offences. For example, touching someone who is under 16 years of age for a sexual purpose is sexual interference (unless a close-in-age exception applies).

Is it incest if they consent?

Yes, you can be convicted of incest for consensual sexual intercourse with a known blood relative. Consent is not a defence to incest. Courts have given several reasons for this, including avoiding the risk of children born with genetic defects because of incestual reproduction, and protecting vulnerable persons.

It may seem counterintuitive or surprising that criminalizing sexual activity between consenting adults protects children and vulnerable persons. One explanation is that Parliament is concerned with people grooming vulnerable children to consent to sexual acts as adults. The idea is that criminalizing incest between consenting adults reduces the likelihood, for example, of a father grooming his young daughter throughout her childhood so that he can take advantage of her as an adult. This is exactly what happened in one Ontario case, where a man was convicted of incest for having sexual intercourse with his 24-year-old daughter, whom he had groomed and psychologically manipulated since she was a child. The same logic applies to siblings, especially where one sibling is considerably older than another and is in a trust position. The crown does not need to prove grooming, only that you knowingly had sexual intercourse with someone with whom you are in one of the blood relationships listed above.

Is it incest if I was drunk or high?

Yes, you can be convicted of incest even if you were severely intoxicated during the sexual intercourse. Intoxication is not a defence to a charge of incest unless you can prove that the intoxication was so extreme that it was “akin to automatism.” This is a complex legal concept, but it can be thought of as being so intoxicated that it would have been physically impossible for you to control your own actions, so you cannot be held responsible for those actions. This is almost never the case. Even if you were “blackout drunk” and do not remember what happened, there is almost zero chance that a court would find that your intoxication was “akin to automatism” and therefore a viable defence.

How can I defend myself against an incest charge?

Like any other crime, you can only be convicted of incest if the crown proves all the elements of the offence beyond a reasonable doubt. You can protect yourself by using a “positive defence,” or by arguing that the crown has not proven all the elements beyond a reasonable doubt.

Section 155(3) of the Criminal Code provides a positive defence: You cannot be found guilty of incest if you were put “under restraint, duress, or fear” by the person you had sexual intercourse with when it was happening. This protects vulnerable persons from being convicted of incest for acts they committed as victims.

There are many ways to challenge the crown’s case. For example, although unlikely, it is possible that you have been charged with incest for having sexual intercourse with someone whom you did not know was your blood relative at the time. For example, a person who is adopted could be charged with incest for having sex with someone whom they did not know at the time is their biological sibling. In this case, incest was not committed, because the accused did not know that they were having sexual intercourse with their sibling. If the accused again had sexual intercourse with their sibling, after learning of the relationship, then they could be convicted of incest.

Every case is different. If you are facing an incest charge, the defences available to you will depend on your situation.