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Act of indecency

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

In NSW it is an offence to do any sexual act towards another person without touching them. It is also an offence to instruct or encourage another person to do so. If the sexual act involves touching or penetration it will amount to a more serious charge which may include, indecent assault, sexual assault or aggravated sexual assault.

A person can be charged if they do an act which is sexual in nature which a reasonable person would consider to be unacceptable conduct or against community standards. They can also be charged if they encourage someone else to do such an act. The offence carries a maximum penalty of two years imprisonment if the victim is under 16 years of age, or 18 months if they are older.


The offence of Act of Indecency:

The offence of Act of Indecency is contained in s 61N of the Crimes Act 1900 (NSW) and states:

  • Any person who commits an act of indecency with or towards a person under the age of 16 years, or incites a person under that age to an act of indecency with or towards that or another person, is liable to imprisonment for 2 years.
  • Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months.

What actions might constitute an "Act of Indecency"?

Common examples of the offence of Act of Indecency include:

  • Exposing your penis or vagina in front of a child;
  • Standing in a laneway and masturbating yourself as another person walks past;
  • Sending a naked photo of yourself to another person; or
  • Pretending to perform a sexual act on a another person.

What the police must prove:

To convict you of the offence of Act of Indecency against a person under 16 years of age, the prosecution must prove each of the following matters beyond reasonable doubt:

  • That you did an act which was indecent or that you incited another person to do the act;
  • That the act was done towards another person; and
  • That the person was under 16 years of age.

To convict you of the offence of Act of Indecency against a person over 16 years of age, the prosecution must prove each of the following matters beyond reasonable doubt:

  • That you did an act which was indecent or that you incited another person to do the act;
  • That the act was done towards another person;
  • That the person did not consent; and
  • That the person was over 16 years of age.

Possible defences for Act of Indecency

The most common ways to defend this charge are:

  • To maintain your innocence if you did not commit the act;
  • To argue that the act you did was not indecent;
  • To argue that the act you incited another person to do was not indecent;
  • To argue that the act was not done towards or directed at another person;
  • To argue that the act was not done towards or directed at another person;
  • To raise necessity or duress as the reason for your conduct.

You can also partially defend the charge of Act of Indecency towards a person under 16 years of age by arguing that at the time of the offence the person was over 16 years of age. You are still likely to be charged with the less serious charge of Act of Indecency towards a person over 16 years of age.

Which court will hear your matter?

The offence of Act of Indecency is a Table 2 offence which means that it will be finalised with in the Local Court unless the prosecutor elects to have it finalised in the District Court.



Types of penalties:

Section 10 for an act of indecency charge: avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.

Fines for an act of indecency charge: When deciding the amount of a fine for a act of indecency charge the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Good behaviour bond for an act of indecency charge: This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Community service order for an act of indecency charge. (CSO): This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Suspended sentence for an act of indecency charge: This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Periodic detention for an act of indecency charge (commonly known as weekend detention): This form of imprisonment ceased to be a sentencing option in October 2010.

Intensive correction order for an act of indecency charge (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Jail for an act of indecency charge: This is the most serious penalty for the charge of act of indecency and involves full time detention in a correctional facility. Read more.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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