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28 May 2011

Corker Binning partner contributes to discussion on incest

Robert Brown, partner, Corker Binning, comments on the definition of incest in Annalisa Barbieri’s Guardian column and whether it would be in the interests of justice for the CPS to prosecute in a case of a loving relationship between half siblings.

Problem solved

I think my granddaughter is having an incestuous relationship with her half-brother

“Our granddaughter is 24. There is some evidence that she is having sexual relations with her half-brother, who is 21. Our granddaughter was brought up by her mother, who did not allow her ever to meet or know her biological father. At sometime in the last year our granddaughter made contact with him and his family. Our granddaughter has made friends with all of them, but it appears that she has made a close sexual relationship with the 21-year-old. The evidence is that both are living away from their family homes and saying they are staying with friends. Also the son’s father, whom we have not seen for 20 years, contacted us because he is worried himself and has found emails from our granddaughter to his son that indicate this relationship is happening.

“We are aware that incest is against the law and all cultural and moral codes. We wish to find a way to proceed that will keep them both safe from any harm to themselves or their future careers. DJ, via email”.

I spoke to Robert Brown, a criminal lawyer and partner at Corker Binning, who confirmed that sex between a half-brother and sister is a prohibited adult sexual relationship, under section 64 of the Sexual Offences Act (2003).

It is penetration (of the vagina or anus by the penis or anything else, or the mouth by the penis) that makes it unlawful, so if the two people in question kissed or “petted” they would not be breaking the law, although it would be regarded as culturally taboo.

I think you need to establish the facts, however. Reading emails (more about this later) doesn’t necessarily tell you what is really going on.

While incest can be a serious offence, punishable by up to two years in prison for both parties, the way the authorities would react is by no means a given. They could be prosecuted, but the Crown Prosecution Service (CPS) would have to decide if it was in the public interest to do so. They may well be given a caution.

Brown concluded: “From the limited facts available, I have to be cautious in my advice. But it would appear that there is little to suggest that this is not a caring and loving relationship between healthy adults. If so, and I were their lawyer, I would certainly make representations to the CPS to the effect that this is not a case in which the public interest could only be met by the couple being charged and taken to court. It is impossible to predict whether the CPS would agree. If both individuals had admitted the incest, were of good character and the relationship was not in any way ‘unhealthy’, then the CPS may agree not to prosecute, but I think it would insist on both individuals being cautioned.”

I realise this is a very difficult situation, but these are different circumstances to incest where one party is being abused or exploited. This seems, from what you’ve said, to be a consensual relationship between adults, albeit one that breaks the law. It’d be easy for me to advise telling them to break it off, but even if this wasn’t an incestuous relationship but one with a man you deemed unsuitable, making them feel defensive is the best way to entrench them in their position – that it’s them against the world.

Try to give your granddaughter a forum in which to communicate with you (or another family member she trusts) and encourage the dad to do the same with his son. Try to listen calmly to the facts and inform her of the law (she may not know). Is it a consensual relationship? Does one party feel coerced? Is it serious? Are they planning children – and, if so, do they know the risks? It is not unheard of for long-separated family members to embark on an inappropriate relationship once they are reunited; I think your granddaughter (and her half-brother) would benefit from some therapy (bps.org.uk; bacp.co.uk; babcp.com). These two young people must be very confused and probably feel there is no one to turn to who won’t judge them. There is every chance this will burn out.

Finally, I must point out that accessing someone else’s email without permission could amount to an offence under the Computer Misuse Act.

Annalisa Barbieri