Intent to do the physical act of penetration is an essential element of incest under Victorian law, even though the statutory language does not expressly refer to intention. A failure to direct the jury on this element, where intention is in issue, constitutes a fundamental error going to the root of the proceedings and precludes application of the proviso. Where the issue is whether penetration occurred at all, the trial judge must explain the distinction between penetration of the vulva (labia majora) and the vagina itself, and must relate the evidence to that issue.
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