Acts of Indecency
In the ACT, it is an offence to commit an act of indecency. The maximum penalty ranges from 7 years to 15 years imprisonment, depending on the offence.
Acts of indecency are divided into a number of offences, including acts of indecency in the first, second and third degree, acts of indecency without consent, acts of indecency with young people, and acts of indecency with young people under special care.
What Is an Act Of Indecency?
To understand why you may be charged with an act of indecency offence, it is important to acknowledge the broad interpretation given to an ‘act of indecency’. The Crimes Act 1900 does not define what constitutes an act of indecency, however many court judgements have dealt with this question. The accepted test to determine whether someone’s conduct constitutes an act of indecency is whether the behaviour was “unbecoming or offensive to common propriety”, “an affront to modesty”, or would “offend the ordinary modesty of the average person”.
Act of Indecency Without Consent
The most common act of indecency charge is ‘act of indecency without consent’. The maximum penalty for this offence ranges from 7 years to 9 years imprisonment, depending whether the act of indecency was committed while acting alone or in company with someone else.
The Offence of Act of Indecency Without Consent
Acts of indecency without consent can be committed while the accused is acting alone or in company with someone else, contained in section 60(1) and 60(2) of the Crimes Act 1900, respectively.
If the offence is committed while the accused is acting alone, the relevant provision is section 60(1) of the Crimes Act 1900 which states that the accused commits an offence if they:-
- Commit an act of indecency on the complainant without the complainant’s consent, being reckless as to whether the complainant consents to the committing of the act of indecency; or
- Commit an act of indecency in the presence of the complainant without the complainant’s consent, being reckless as to whether the complainant consents to the committing of the act of indecency.
This offence carries a maximum penalty of imprisonment for 7 years.
If the offence is committed while the accused is acting in company with someone else, the relevant provision is section 60(2) of the Crimes Act 1900 which states that the accused commits an offence if they, in the company of someone else:-
- Commit an act of indecency on the complainant without the complainant’s consent, being reckless as to whether the complainant consents to the committing of the act of indecency; or
- Commit an act of indecency in the presence of the complainant without the complainant’s consent, being reckless as to whether the complainant consents to the committing of the act of indecency.
This offence carries a maximum penalty of imprisonment for 9 years.
For the purpose of each of the above offences, section 60(3) of the Crimes Act 1900 states that proof of knowledge or recklessness is sufficient to establish the element of recklessness. That is, if the prosecution proves that either:-
- The accused knew that the complainant did not consent; or
- The accused was reckless as to whether the complainant consented
then it will be established that the accused was reckless as to whether or not the complainant consented to the committing of the act of indecency.
What Actions Might Constitute an Act of Indecency Without Consent?
Examples of acts of indecency without consent include:-
- Your 16 year old neighbour offers to wash your windows for you. After he is finished, you invite him in for a cold drink and show him some pornography on your laptop.
- You are walking up the stairs at a rugby game behind a woman. You put your hand up her skirt and grab her buttocks.
- Your friend’s twin sisters have come from interstate to attend a university open day. They stay with you and your housemate while they are in town, and one evening while you are watching television you fondle one of the woman’s breasts while your housemate rubs the inside of her thigh. In this example you may be charged with committing an act of indecency on the woman whose breasts you fondled, as well as an act of indecency in the presence of the other woman. Further, because you were acting in company with someone else, you would be liable to imprisonment for 9 years.
What the Police Must Prove
To convict you of an act of indecency without consent, the prosecution must prove each of the following matters beyond a reasonable doubt:
- That you committed an act; and
- That act was an act of indecency; and
- That act was either:
- Committed on another person without their consent; or
- Committed in the presence of another person without that person’s consent; and
- That you were reckless as to whether the person consented to the act of indecency that was committed on them or in their presence.
If you are charged with an offence under section 60(2) then, in addition to the above, the prosecution has to prove that you were acting in company with someone else when you committed the act of indecency.
Possible Defences For An Act Of Indecency Without Consent
The common ways to defend this charge are:
- To maintain your innocence if you did not commit the act; or
- To argue that the act was not an act of indecency; or
- To argue that the person consented to the committing of the act; or
- To argue that you were not reckless as to whether the person consented;
- If the act is alleged to have been committed in the presence of a person, to argue that the act was not committed in their presence (for example, that you were too far away from them for the act to have been committed ‘in their presence’); or
- If the act is alleged to have been committed while acting in company with someone else, to argue that the act was not committed while acting in company with that person.
Which Court Will Hear Your Matter?
These matters may be dealt with in the ACT Supreme Court or ACT Magistrates Court, depending what you elect.
Act of Indecency in the First, Second and Third Degree
Acts of indecency in the first, second and third degree are offences which are intended to capture assaults used as coercion for acts of indecency; that is, inflicting harm or threatening to inflict harm if someone does not engage in the act of indecency. The harm can be inflicted on the person upon whom the act of indecency is intended to be committed, or on a third person.
The degree is determined by the seriousness of assault that accompanies the intended act of indecency. An act of indecency in the third degree is the least serious of the three, requiring an unlawful assault or mere threat of grievous or actual bodily harm. Meanwhile, the most serious, being an act of indecency in the first degree, requires grievous bodily harm to actually be inflicted.
The Offence Of Act Of Indecency In The First Degree
The offence of act of indecency in the first degree is contained in section 57 of the Crimes Act 1900 which states that the accused commits an offence if they either:-
- Inflict grievous bodily harm on the complainant with intent to commit an act of indecency on the complainant; or
- Inflict grievous bodily harm on the complainant with intent to commit an act of indecency on a third person who is present or nearby.
This offence carries a maximum penalty of imprisonment for 15 years.
What is Grievous Bodily Harm?
In order to be guilty of an act of indecency in the first degree, the harm inflicted must amount to grievous bodily harm. The dictionary contained in the Crimes Act 1900 states that grievous bodily harm to a person includes:-
- Any permanent or serious disfiguring of a person; and
- For a pregnant woman, loss of or serious harm to the pregnancy other than in the course of a medical procedure (whether or not the woman suffers any other harm).
Grievous bodily harm is also described in case law as a ‘really serious injury’.
The Offence Of Act Of Indecency In The Second Degree
The offence of act of indecency in the second degree is contained in section 58 of the Crimes Act 1900 which states that the accused commits an offence if they either:-
- Inflict actual bodily harm on the complainant with intent to commit an act of indecency on the complainant; or
- Inflict actual bodily harm on the complainant with intent to commit an act of indecency on a third person who is present or nearby.
This offence carries a maximum penalty of imprisonment for 12 years.
What is Actual Bodily Harm?
In order to be guilty of an act of indecency in the first degree, the harm inflicted must amount to actual bodily harm. This broadly requires that a visible injury be present to show that bodily harm occurred, for example a bruise or scratch. The case law also states that the injury does not need to be permanent, but “must be more than merely transient or trifling”.
The dictionary contained in the Crimes Act 1900 extends the definition to include actual bodily harm to a pregnant woman, which includes harm to the pregnancy other than in the course of a medical procedure (whether or not the woman suffers any other harm).
The Offence Of Act Of Indecency In The Third Degree
The offence of act of indecency in the third degree is contained in section 59 of the Crimes Act 1900 which states that the accused commits an offence if they either:-
- Unlawfully assault, or threaten to inflict grievous or actual bodily harm on the complainant with intent to commit an act of indecency on the complainant; or
- Unlawfully assault, or threaten to inflict grievous or actual bodily harm on the complainant with intent to commit an act of indecency on a third person who is present or nearby.
This offence carries a maximum penalty of imprisonment for 10 years.
What Actions Might Constitute An Act Of Indecency In The First, Second Or Third Degree?
Examples of acts of indecency in the first, second and third degree include:-
- You are involved in a home invasion. You shoot one of the occupants and demand that his wife touch your genitals, while still pointing the gun at her husband. This would constitute an act of indecency in the first degree, where you have inflicted grievous bodily harm on the husband with the intention of committing an act of indecency on the wife.
- Your friend’s brother stays with you while he is in town for the weekend. On Saturday night, you are watching a movie on the couch and you run your hand up the inside of his thigh. He asks you to stop but you slap him (not hard enough to leave a mark), tell him not to make a big deal of things and continue rubbing his leg and groin. This would constitute an act of indecency in the third degree due to the unlawful assault.
- You are at a house party and you walk into a room where a man is talking to his girlfriend on Skype. You hold a knife to the man’s throat and speak to the woman, threatening to cut her boyfriend if she does not undress in front of the camera for you to watch. This would constitute an act of indecency in the third degree as you have threatened to inflict grievous/actual bodily harm.
What the Police Must Prove
To convict you of an act of indecency in the third degree, the prosecution must prove each of the following matters beyond a reasonable doubt:
That you either:
- Unlawfully assaulted another person; or
- Threatened to inflict grievous bodily harm on another person; or
- Threatened to inflict actual bodily harm on another person; and
That you either:
- Did this with intent to commit an act on that person; or
- Did this with intent to commit an act on a third person who is present or nearby; and
That the act you intended to commit was an act of indecency.
To convict you of an act of indecency in the second degree, the prosecution must prove each of the following matters beyond reasonable doubt:-
- That you inflicted harm on another person; and
- That harm amounted to actual bodily harm; and
- That you either:
- Did this with intent to commit an act on that person; or
- Did this with intent to commit an act on a third person who is present or nearby; and
- That the act you intended to commit was an act of indecency.
To convict you of an act of indecency in the first degree, the prosecution must prove each of the following matters beyond reasonable doubt:-
- That you inflicted harm on another person; and
- That harm amounted to grievous bodily harm; and
- That you either:
- Did this with intent to commit an act on that person; or
- Did this with intent to commit an act on a third person who is present or nearby; and
- That the act you intended to commit was an act of indecency.
Posible Defences For An Act Of Indecency In The First, Second Or Third Degree
The common ways to defend these charges are:-
- To maintain your innocence if you did not commit the offence; or
- To argue that the level of harm inflicted or threatened was less than that required for the offence with which you have been charged, for example you are charged with act of indecency in the first degree but the harm you inflicted was actual bodily harm (not grievous bodily harm, which is required for an offence in the first degree); or
- To argue that you did not intend to commit an act of indecency; or
- To argue that the act you intended to commit was not an act of indecency; or
- If the act is alleged to have been committed in the presence of a person, to argue that the act was not committed in their presence (for example, that you were too far away from them for the act to have been committed ‘in their presence’).
Which Court Will Hear Your Matter?
Acts of indecency in the first and second degrees are strictly indictable matters and will be dealt with in the ACT Supreme Court, while acts of indecency in the third degree may be dealt with in the ACT Supreme Court or ACT Magistrates Court, depending what you elect.
Act of Indecency On A Young Person
An act of indecency with a young person is distinguished from the other act of indecency charges due to the age of the complainant. To be charged with this offence, the complainant must be under the age of 16 years. The maximum penalty for this offence ranges from 10 years to 12 years imprisonment, depending whether the act of indecency was committed with someone under the age of 16 years or under the age of 10 years, respectively.
The Offence Of Act Of Indecency On A Young Person
Acts of indecency with young people are separated into two categories depending on the age of the complainant.
If the act of indecency is committed with a young person under the age of 16 years, the relevant provision is section 61(2) of the Crimes Act 1900 which states that the accused commits an offence if they:-
- Commit an act of indecency on the complainant, who is under 16 years of age; or
- Commit an act of indecency in the presence of the complainant, who is under 16 years of age.
This offence carries a maximum penalty of imprisonment for 10 years.
If the act of indecency is committed with a young person under the age of 10 years, the relevant provision is section 61(1) of the Crimes Act 1900 which states that the accused commits an offence if they:-
- Commit an act of indecency on the complainant, who is under 10 years of age; or
- Commit an act of indecency in the presence of the complainant, who is under 10 years of age
This offence carries a maximum penalty of imprisonment for 12 years.
However, it is a defence to section 61(1) and section 61(2) of the Crimes Act 1900 if the accused can prove that either:-
- The accused believed on reasonable grounds that the complainant was at least 16 years old; or
- At the time of the alleged offence, the complainant consented to the committing of the act of indecency, the complainant was at least 10 years old and the accused was not more than 2 years older than the complainant.
This defence is set out in section 61(3) of the Crimes Act 1900.
What Actions Might Constitute An Act Of Indecency On A Young Person?
Examples of acts of indecency on young people include:-
- You are 17 years old and in year 11 at school. You have been flirting with one of the year 9 girls who you assume is 15 years old. One lunch time you ask if you can touch her breasts, and she says yes. You do so and continue hanging out afterwards, and both of you are happy. The girl’s mother reports you to the principal because she is actually still 14 years old. In this case, you have committed an act of indecency because even though the girl has consented and is older than 10 years, there is more than 2 years age difference between you.
- Your 9 year old neighbour offers to pull out weeds in your garden for you. After he is finished, you invite him in for a cold drink and show him some pornographic photos in an adult magazine. In this case, you have committed an act of indecency by showing a child pornography.
- You arrange a coast trip with your 17 year old girlfriend and her little sister who is 15 years old. After a few drinks on the beach one evening, you take off your girlfriend’s bikini top and start kissing her breasts in front of her sister. In this case, although your girlfriend consents you have nonetheless committed an act of indecency in the presence of a young person.
What the Police Must Prove
To convict you of an act of indecency on a young person, the prosecution must prove each of the following matters beyond reasonable doubt:-
- That you committed an act; and
- That act was an act of indecency; and
- That act was either:
- Committed on a person under 16 years of age; or
- Committed in the presence of a person under 16 years of age; and
- That you did not believe on reasonable grounds that the young person was at least 16 years old.
If the young person was at least 10 years old the prosecution must also prove, in addition to the above, that:-
- The young person did not consent to the committing of the act; and/or
- That you were more than 2 years older than the young person.
Possible Defences For An Act Of Indecency On A Young Person
The common ways to defend this charge are:-
- To maintain your innocence if you did not commit the act; or
- To argue that the act was not an act of indecency; or
- If the act is alleged to have been committed in the presence of a young person, to argue that the act was not committed in their presence (for example, that you were too far away from them for the act to have been committed ‘in their presence’);
- To argue that you believed on reasonable grounds that the young person was at least 16 years old; or
- If the person on whom the offence was committed was over 10 years of age and you were less than 2 years older than them, to argue that they consented to the committing of the act.
Which Court Will Hear Your Matter?
Acts of indecency on a young person under the age of 10 years are strictly indictable matters and will be dealt with in the ACT Supreme Court, while acts of indecency on a young person under the age of 16 years may be dealt with in either the ACT Supreme Court or the ACT Magistrates Court, depending what you elect.
Act Of Indecency On A Young Person Under Special Care
An act of indecency on a young person under special care is distinguished from the other act of indecency offences due to the age of the complainant and the relationship between the complainant and the accused. To be charged with this offence, the complainant must be at least 16 years of age, but not yet 18 years of age. The maximum penalty for this offence is 7 years imprisonment.
The Offence Of Act Of Indecency On A Young Person Under Special Care
This offence is contained in section 61A(1) of the Crimes Act 1900 which states that the accused commits an offence if they:-
- Either:
- Commit an act of indecency on the complainant, who is at least 16 years of age but not yet 18 years of age; or
- Commit an act of indecency in the presence of the complainant, who is at least 16 years of age but not yet 18 years of age; and
- The complainant is in the accused’s special care.
This offence carries a maximum penalty of imprisonment for 7 years.
However, it is not an offence if:-
- The accused was married to the complainant at the time of the alleged offence; or
- The accused was not more than 2 years older than the complainant.
This is specified in section 61A(3) of the Crimes Act 1900.
In addition, it is a defence to section 61A(1) of if the accused can prove that they believed on reasonable grounds that the complainant was at least 18 years old. This defence is contained in section 61A(4) of the Crimes Act 1900.
For the purpose of this offence:-
- ‘Young person’ is a person who is at least 16 years old, but not yet an adult.
- ‘Special care’ includes, but is not limited to cases where:-
- The accused is a teacher at a school, or a person with responsibility for students at a school, and the complainant is a student at the school; or
- The accused is a parent, grandparent, step-parent, foster carer or legal guardian of the complainant; or
- The accused provides religious instruction to the complainant; or
- The accused is the complainant’s employer; or
- The accused is the complainant’s sports coach; or
- The accused provides professional counselling to the complainant; or
- The accused is a health service provider and the complainant is the accused’s patient; or
- The accused is a custodial officer and the complainant is a young detainee in the accused’s care, custody or control.
This is contained in section 55A of the Crimes Act 1900.
What Actions Might Constitute An Act Of Indecency On A Young Person Under Special Care?
Examples of acts of indecency on young people under special care include:-
- You are a counsellor assisting troubled youths. You kiss one of your patients, aged 16 years, who you have been exchanging text messages with for weeks.
- You coach a mixed soccer team and while at Uni Games, you get drunk and grope one of the younger players, aged 17.
- You are a 23 year old teaching assistant working at a local high school. During a rainy lunch break while the Year 11 students are eating inside the classroom, you look up pornographic pictures on your laptop in view of some of the students.
What The Police Must Prove
To convict you of an act of indecency on a young person, the prosecution must prove each of the following matters beyond a reasonable doubt:-
- That you committed an act; and
- That act was an act of indecency; and
- That act was either:
- Committed on a person of at least 16 years, but not yet 18 years; or
- Committed in the presence of a person of at least 16 years, but not yet 18 years; and
- That person was under your special care; and
- That you did not believe on reasonable grounds that the person was at least 18 years old.
Possible Defences for An Act Of Indecency On A Young Person Under Special Care
The common ways to defend this charge are:-
- To maintain your innocence if you did not commit the act; or
- To argue that the act was not an act of indecency; or
- If the act is alleged to have been committed in the presence of a young person, to argue that the act was not committed in their presence (for example, that you were too far away from them for the act to have been committed ‘in their presence’); or
- To argue that you believed on reasonable grounds that the young person was at least 18 years old.
Which Court Will Hear Your Matter?
Acts of indecency on a young person under special care may be dealt with in either the ACT Supreme Court or the ACT Magistrates Court, depending what you elect.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.